[ 1 ]
DTP—V-4 Ex.(322)—1
TAMIL NADU
GOVERNMENT GAZETTE
EXTRAORDINARY PUBLISHED BY AUTHORITY
No. 322]
CHENNAI, FRIDAY, AUGUST 25, 2023
Aavani 8, Sobakiruthu, Thiruvalluvar Aandu–2054
Part V—Section 4
Notifi cations by the Election Commission of India
2023
[Price : Rs. 24.00 Paise.
NOTIFICATIONS BY THE ELECTION COMMISSION OF INDIA
Judgement of the High Court of Madras in Election Petition No. 04 of 2019
No. SRO G-28/2023.
The following Notifi cation of the Election Commission of India, Nirvachan
Sadan, Ashoka Road, New Delhi-110 001, dated 03rd August, 2023 [12 Sarvana
1945 (Saka)] is published:-
No. 82/TN-HP/ (EP 04 of 2019) /2023/SS-I: - In pursuance of section 106 (a)
of the Representation of the People Act, 1951 (43 of 1951), the Election Commission
hereby publishes the Order of the High Court of Madras dated 06.07.2023 in Election
Petition No. 04 of 2019.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON 30.06.2023
DELIVERED ON 06.07.2023
CORAM
THE HON’BLE MR. JUSTICE S.S.SUNDAR
ELP. No. 4/2019
P.Milany ... Petitioner
Versus
1.S.Arumugam
2.E.V.K.S.Elangovan
3.P.Raveendranath Kumar
4.P.Allikodi
5.J.Shahul Hammed
6.T.Chinna Sathiyamoorthy
7.S.Radhakrishnan
8.G.Kamaraj
9. S.Alex Pandian
10.M.Annakili
11.K.Ravichandran
12.Eswaran
13.M.Guna Singh
14.P.Kumaragurubaran
15.J.Kesavaraja
16.P.Silambarasan
17.A.Sivamuniyandi
18.J.Senthilkumar
19.Thanga Tamilselvan
20.G.Parthipan
21.P.Prakash
22.C.Manimurugan
23.K. Ramachandran
24.S.Ramamurthi
25.V.Rajasekaran
26.S.Rajarishigurudev
27.P.Rajkumar
28.S.P.Velmurugan
29.A.Vaiyathurai
30.K.Jayamani
31.Mrs.Pallavi Baldev, IAS
Returning Offi cer cum District Electoral
Offi cer of Theni District, O/o.District Collectorate
Theni District.
32. The Chief Electoral Offi cer
State of Tamil Nadu, Secretariat
Chennai 600 009.
33. Election Commission of India
represented by the Chief Election Commissioner
Nirvachan Sadan, Ashoka Road
New Delhi 110 001.
…Respondents
**RR31 to 33 are struck of from the array
of respondents in ELP.No.4/2019 as per
order of this Court dated 18.09.2019 in
OA.Nos.838, 840 & 841/2019 in ELP.No.4/2019
Prayer-Election Petition fi led under sections 81, 100[1][a], 100[1][b], 100[1][d][i], 100[1]
[d][ii], 100[1][d][iii], 100[1][d][iv], 33, 36, 77, 123[ 1 ][A][b], 123[1][B][b] and Rules 88, 89
of Conduct of Election Rules, 1961 and Article 324 of the Constitution of India read with
Rule 2 of the Madras High Court Election Petition, 1967, to declare the election of the
3rd respondent as returned candidate on 23.05.2019 from No.33, Theni Parliamentary
Constituency as null and void and award the cost of this petition.
For Petitioner
:
Mr.V.Arun
For R3
:
Mr.A.K.Sriram, Senior Counsel
assisted by
Mr.G.Prakash Kumar
ORDER
(l)This election petition is fi led to declare the election of the 3rd respondent/ Returned
Candidate on 23.05.2019 from No.33, Theni Parliamentary Constituency as null and
void and to pass such further or other orders as this Court deems fi t and appropriate.
(2)The Election Commission of India declared Lok Sabha General Election on
10.03.2019. As per the Schedule of Election, the fi rst day for issuing nomination was
on 19.03.2019 and the last date for receiving nomination was on 26.03.2019. The date
for scrutiny of nominations was fi xed on 27.03.2019 and the last date for withdrawal of
nominations was on 29.03.2019 before 5.00 p.m. 18.04.2019 was the date of polling
and 23.05.2019 was the date of counting and for declaration of election results.
(3) This Election Petition is fi led on 08.07.2019 within time. The petitioner
has fi led this petition as an elector challenging the election of 3rd respondent as
representative of Theni Parliamentary Constituency on grounds referring to Section
81, 100[1][a], 100[1][b], 100[1][d][i], 100[1][d][ii], 100[1][d][iii], 100[1][d][iv], 33, 36, 77,
123[1][A][b], 123[1][B][b] of the Representation of People Act, 1951 read with Rules
88, 89 of Conduct of Election Rules, 1961. The election petition is fi led mainly on
the ground of suppression of assets and liabilities in Form-26 of election affi davit
fi led under Rule 4A of Conduct of Election Rules, 1961, improper acceptance of
nomination by the Returning Offi cer and corrupt practices by the associates of the
3rd respondent with the consent of third respondent.
(4) It is not in dispute that the then ruling party in the State fi elded 3rd respondent
as a candidate in All India Anna Dravida Munnetra Kazhagam [AIADMK] Party under
‘two leaves’ symbol. It is also admitted that the 3rd respondent is the son of the then
Deputy Chief Minister of the State Mr.O.Panneerselvam. It is pertinent to mention
that one Mr.E.V.K.S.Elangovan, who contested as a candidate of Indian National
Congress in ‘hands’ symbol is the 2nd respondent herein and many other candidates
who contested the election, did not participate in the Election Petition. Though the
19th respondent fi led a counter supporting the petition and gave evidence as PW2,
he did not participate in the proceedings by engaging an Advocate. The other
respondents, except the 3rd respondent, have not contested the election petition.
(5) The case of the petitioner in the Election Petition can be briefl y summarised
as follows:-
(a) The petitioner verifi ed his Parliamentary Constituency candidate’s
affi davits submitted by the candidates on the website of the Election Commission to
know about the candidates. On verifi cation, he came to know that the 3rd respondent/
Returned Candidate has suppressed his assets in the form of shares and its fi nancial
values in M/s.Vani Fabrics Private Limited in which the 3rd respondent was a Director
holding 16.67% of shares. The Balance Sheet approved in the Annual General Meeting
of M/s.Vani Fabrics Private Limited to Ministry of Corporate Affi ars, Government of
India, revealed the holdings of shares by the 3rd respondent as Director and the 3rd
respondent has deliberately suppressed his position as a shareholder and Director
of M/s.Vani Fabrics Private Limited in the election affi davit.
(b) After acceptance of nomination, the 3rd respondent and his men as
a team work, induced voters of entire Theni Parliamentary Constituency by freely
distributing various articles like ‘two leaves’ printed sarees, dhotis printed with
party’s fl ag color, sweet boxes, liquor, cash on hand and promise on milk etc. The
petitioner saw a fl ock of poor village women wearing identical green colour sarees
imprinted with ‘two leaves’ symbol. The petitioner on enquiry, was informed that the
3rd respondent’s brother was distributing sarees with Rs. 1000/- to each of them to
cast vote for them as advance gift at Baskar Kalyana Mandapam, Thendral Nagar.
The petitioner went to the place and identifi ed the brother of 3rd respondent by name
Mr.Pradeep Kumar, who was distributing a sum of Rs. 1000/- to each of the women,
on their promise to cast votes for ‘two leaves’ symbol. Even the petitioner could
not contact the concerned to lodge a complaint. Later when the place was raided,
about 500 sweet boxes alone were seized and raiding offi cials could only disperse
the crowd by the rear side gate of the Kalyana Mandapam. The 3rd respondent, his
agents, his father were freely and openly distributing money to the voters of Theni
Parliamentary Constituency at various places simultaneously. The inducement of the
voters cannot be stopped by respondents 31 to 33 or the special squad. Therefore, it
appeared that the inducement was going on with the aid and support of the persons
responsible for holding free and fair election.
(c) The petitioner saw a video of money distribution of 3rd respondent’s close aid in
social media. One Mrs.Saveetha Arunprasad, Ex-Chairman of Melachockanathapuram
[of AIADMK Party], at Part 113 of Bodi Assembly Constituency, distributed Rs. 1000/-
to each voter as per the electoral roll. The electors by name Lakshmi, Mariyamman,
Santhosh and Raja of Part No. 113 in Sl.Nos.551, 720, 673 and 718 were given
Rs.4000/- by the said Saveetha. Again, she paid a sum of Rs. 1000/- to one voter by
name Subramaniam in Part No. 113 Sl.No.258 of Bodi Assembly Segment at about
21.00 hours on 14.04.2019 and asked the said voter to vote for ‘two leaves’ symbol,
the symbol in which the Returned Candidate contested the election. Mrs.Saveetha
Arunprasad is a close confi dante of the Returned Candidate and his father. She
was accompanying with the 3rd respondent and his father during election campaign.
With the consent of the 3rd respondent, she was distributing money to voters to vote
for ‘two leaves’. Hence, the 3rd respondent/Returned Candidate committed election
off ence under Sections 123[1][A] and [B] and also under sections 100[1][b], 100[1]
[d][i], 100[1][d][iii] and 100[1][d][iv] of the Representation of People Act, 1951.
(d) The petitioner tried to lodge a complaint in this regard, but he could not lodge
a complaint because no Flying Squad, Police, Control Room phone numbers were
working as respondents 31 to 33 were taking partisan attitude. The petitioner came
to know that an FIR in Crime No.215/2019 against the said Saveetha was registered
on 15.04.2019; but no arrest or further action was taken by the 33rd respondent.
(e) Though drastic steps were taken when similar incident was reported in
Vellore Parliamentary Constituency and this Court upheld the 33rd respondent’s order
of countermand of Vellore Parliamentary Constituency, no eff ective steps were taken
and no arrests were made in Theni Parliamentary Constituency.
(f) While election offi cials received several complaints of stocking of huge
money at the election offi ce of the 3rd respondent at Andipatti, the 31st respondent
just informed a lower level Flying Squad Team headed by one Nataraja Rathinam, to
conduct search in the said place and the raid was unsuccessful except seizure of a
sum of Rs.1.48 Crores from the said place and reported the fi ring that was inevitable
because of poor strength of offi cials who were deputed to the place of occurrence.
(g) The election petitioner though made a few more allegations in the election
petition, this Court is not inclined to elaborate further because the petitioner focused
his attention only on limited grounds on the basis of the incidents above referred
to any by stating that the offi cial respondents miserably failed to conduct free and
fair election.
(6) The 3rd respondent/Returned Candidate fi led a counter affi davit generally
denying all the allegations parawise. He also raised a preliminary objection as to
the maintainability of the Election Petition by the petitioner raising a doubt as to his
identity as an eligible elector. Referring to the fact that the petitioner is a functionary
of a rival party, it is stated that the present petition is a frivolous one fi led with ulterior
motive. With regard to suppression of assets in the form of shares in the Company
M/s.Vani Fabrics Private Limited, the 3rd respondent specifi cally denied the same.
Though the 3rd respondent admitted that he had previously held shares in the said
company, it is stated that the shares held by him had been transferred by him on
18.03.2019. He further stated in his counter that necessary documents in that regard
are available with the company and the transfer of shares are supported by records.
It is also contended that during scrutiny of nomination, same objection was raised
by some other persons and it was duly replied by the 3rd respondent. It is stated
further that the nomination of 3rd respondent was accepted after considering the
objections. The 3rd respondent specifi cally denied the averments regarding corrupt
practices. Stating that the petitioner’s general allegations involving the 3rd respondent
and his brother were not made with particulars and details, it is contended by the
3rd respondent that mere allegations without satisfying the requirements of statute,
cannot be considered. The specifi c stand taken by the 3rd respondent is that he never
consented or indulged in any corrupt practices alleged. It is stated in the counter
that the petitioner is trying to build castles in air by making such farcical allegations
with no material facts or particulars.
(7) As regards the distribution of money to voters, the 3rd respondent stated that
the petitioner has not given the details as to how the money was distributed and
when, where and by whom the alleged distribution took place. While denying the
allegations involving Mrs.Saveetha Arunprasad, based on video on social media, it
is responded in the counter affi davit fi led by 3rd respondent that he has nothing to
do with the incident. He questioned the authenticity of the Whatsapp video and put
the petitioner to strict proof of the allegations that Mrs.Saveetha Arunprasad had
committed such illegal acts with the consent of the 3rd respondent. He stated that
mere allegation that Mrs.Saveetha Arunprasad had association with his father or
the 3rd respondent does not mean that she indulged in such corrupt practices with
their consent. He repeatedly stated that no corrupt practices were committed either
by the 3rd respondent or by his supporters or party men. The 3rd respondent went
to the extent of denying knowledge of the incident or the video clipping. Finally, the
3rd respondent stated that the police have commenced investigation pursuant to the
registration of the FIR and that the petitioner has made bald allegations which do
not satisfy the requirements of Sections 83 of the Representation of People Act,
1951 [hereinafter called as ‘the RP Act’].
(8) After the fi ling of counter affi davit by 3rd respondent, the election petitioner
fi led a reply reiterating the allegations already made in the election petition. With
reference to suppression of assets, it is contended that the 3rd respondent has not
only suppressed his shareholdings in M/s.Vani Fabrics Private Limited, but also the
liability of Rs.10 Crores borrowed by M/s.Vijayanth Developers Private Limited in which
the 3rd respondent is one of the Directors and holding 33.33% shares. The petitioner
has come forward with an additional information about the suppression of the liability
of a company in which the 3rd respondent is one of the Directors. In paragraph
No. 13 of the reply affi davit, the petitioner raised a doubt as to the bona fi des of
the alleged transfer of shares by the 3rd respondent pointing out the discrepancies
in the dates. While the transfer of shares according to the 3rd respondent was on
18.03.2019, the petitioner pointed out that as per the company records, the transfer
was on 17.03.2019. The petitioner still maintained that transfer of shares is done
by manipulation of records to cover up the suppression of assets. It is important to
note that the petitioner in the alternative, further pointed out that the 3rd respondent
has not disclosed the consideration he had received for transfer of 15000 shares.
Referring to the fact that the Annual Report for 2017-18 of the Company shows that
the value of shares held by the 3rd respondent was Rs.27, 00,000/- it is contended
that the 3rd respondent has suppressed the consideration he had received for transfer
of shares and therefore, it is contended that the suppression is admitted by the 3rd
respondent himself. Further, it is stated that the 3rd respondent was receiving salary
of Rs.6 lakhs per annum as the Director of M/s.Vani Fabrics Private Limited and that
the income he derived from the said Company by way of salary was not disclosed
in the affi davit in Form-26. In the reply affi davit, the petitioner from paras 6 to 15
raised several allegations regarding non-disclosure of assets and liabilities in Form
26 and about improper acceptance of nomination. Since the 3rd respondent in his
counter, has stated that the objections raised by 3rd parties had been considered
and rejected by Returning Offi cer, it is contended by the petitioner that the decision
of Returning Offi cer holding enquiry in a summary manner is not fi nal and that the
3rd respondent should prove that he has not suppressed any asset or liability as it is
the fundamental right of petitioner under Article 19[1][a] of the Constitution of India
to know about the candidates contesting the elections. The petitioner has made a
specifi c allegation that the 3rd respondent has suppressed his assets of other Company
and its liability to the tune of Rs.10 Crores. Petitioner also put the 3rd respondent
to strict proof that he has not suppressed any assets nor liabilities in his election
affi davit. The petitioner reiterated that the 3rd respondent’s nomination suff ered from
defects and hence, it is a case of improper acceptance of 3rd respondent’s nomination
by the Returning Offi cer.
(9) The 19th respondent has also fi led a counter affi davit. Referring to the
written objection, he had raised before the Returning Offi cer, the 19th respondent
came up with few allegations regarding suppression of the salary, the 3rd respondent
was receiving from M/s.Vani Fabrics Private Limited as a Director. Making similar
allegation regarding suppression of the 3rd respondent’s shareholdings [16.7%] at M/s.
Vani Fabrics Private Limited and the book value of the same, the 19th respondent
also contended that the 3rd respondent has given a false declaration.
(10) The 19lh respondent added further in his counter that the 3rd respondent
availed a loan of Rs.10 Crores against his property for election purpose and it was
also suppressed under the column ‘Liabilities’ in his election affi davit. Referring to
a sum of Rs.32,52,450/- as his asset by referring to the said sum as the money
which is due from the company namely, M/s.Vijayanth Developers Private Limited
to the 3rd respondent, the 19th respondent contended that this is a false information.
However, he failed to give any reason for describing the disclosure of a sum of
Rs.32,52,450/- as a false declaration. Referring to the fact that the company, M/s.
Vijayanth Developers Private Limited, is a loss making company which is indebted
to several people, the 19th respondent also alleged that the declaration in Form-26
that the 3rd respondent owned shares to the value of Rs.33,340/- in M/s.Vijayanth
Developers Private Limited, is a false information.
(11) The 19th respondent in his counter affi davit, referred to the borrowal of a
sum of Rs.10 Crores from City Union Bank, Mandaveli Branch, Chennai, as per the
loan application dated 09.01.2019 and the sanction of loan. Referring to the charge
over company on 18.02.2019, the 19th respondent alleged that the 3rd respondent
has suppressed the liability by mortgaging the property of the 3rd respondent. The
19lh respondent also alleged that the 3rd respondent has undervalued the immovable
properties owned by him and mortgaged with the Bank. Referring to the fact that
the value of his immovable properties is given as Rs.1,19,46,293/- [31.37acres] in
Column No.7B of immovable assets, the 19dl respondent contended that the Returned
Candidate/3rd respondent has mortgaged his property, by valuing the property
mortgaged at Rs.5.69 Crores [for an extent of 29.99 acres] as on 21.09.2017. It is
contended by the 19th respondent that the 3rd respondent’s landed property which
was valued for a sum of Rs.5.69 Crores as on 21.09.2017, has been suppressed
and the property mortgaged with an additional extent has been shown in the
election affi davit as a property worth Rs.1,19,46,923/-. Therefore, referring to the
under valuation of property and non-disclosure of the loan availed by mortgaging the
property of the 3rd respondent, the 19th respondent made allegation of suppression
against the 3rd respondent.
(12) The 19th respondent also made a few more allegations and we are
not concerned about every other allegations in view of focus of parties on
issues only with reference to certain allegations.
(13) The 3rd respondent fi led a reply affi davit responding to the counter of 19th
respondent. In the reply affi davit to the 19th respondent’s counter, the 3rd respondent
stated that the transaction between 3rd respondent and M/s.Vijayanth Developers
Private Limited is entirely diff erent and the loan obtained was not for the 3rd respondent,
but for the development of the Company. The 3rd respondent also submitted that he
has disclosed the mortgage of property with City Union Bank, Mandaveli Branch,
vide Mortgage Deed dated 03.08.2018 and that the same had been disclosed in
the affi davit in Form-26. Stating that the shares, loans, mortgages as on the date of
fi ling of nomination had been suffi ciently disclosed, the 3rd respondent made several
allegations against the 19th respondent attributing motive for supporting the cause of
the election petitioner in this proceeding. Without prejudice to his contentions, the
3rd respondent submitted that he has nothing to do with the valuation done by the
Bank for the purpose of lending money to the company.
(14) One of the independent candidate, who also contested in the election,
namely, the 26th respondent, also fi led a counter affi davit [fi led as written statement].
He also came with a few allegations against the 3rd respondent by contending that
the 3rd respondent has fi led a false affi davit of declaration suppressing assets and
liabilities with substantial variation. A reply affi davit was also fi led by the 3rd respondent
in response to the counter affi davit of the 26th respondent specifi cally denying every
averments made in the counter affi davit of the 26th respondent.
(15) 26th respondent also made certain allegations with reference to the
suppression of share holdings of 3rd respondent in M/s.Vani Fabrics Private Limited
and about the mortgage of his property in connection with the loan advanced to M/s.
Vijayanth Developers Private limited. Though the averments in the reply affi davit are
in tune with what the 3rd respondent has stated in his reply to the counter affi davit
fi led by 19th respondent, the 3rd respondent in paragraph No. 19 has stated that the
shares in M/s.Vani Fabrics Private Limited were transferred to his own brother and
there is no question of receiving any consideration as it was internally adjusted
between himself and his brother. Surprisingly, the 3rd respondent admitted that
he had also paid capital gains for the said transaction. Specifi c averments found
in paragraph No. 19 of the reply affi davit of 3rd respondent to the counter of 26th
respondent reads as follows:-
“19.... With respect to share held in Vani Fabrics, it has already
been made clear in the counter that the same had been transferred
on 18.03.2019 and objections raised regarding the same were duly
answered during nomination. The shares were transferred to my own
brother and there is no question of me receiving any consideration
as it was internally adjusted between my brother and I and in fact, I
have also paid capital gains for the said transaction. Therefore, it is
utterly false to state that I have conveniently suppressed all crucial
facts to hide the poor voters eyes and cheated them by false affi davit
and aff ected the results of election, per contra, I have not made any
suppression on my account as I have made complete disclosure on
the state of my assets and liabilities as on the date of nomination
vide affi davit in Form 26 dates 02.03.2019. My affi davit in Form 26
is complete in all respects therefore, the allegation that I have not
signed the verifi cation clause and signed formally is fl ippant and
untenable”.
(16)This Court, originally, on 18.02.2020 framed the following issues:-
1. Whether the affi davit fi led under Rule 4[A] of the Conduct of
Election Rules, 1961, has been validly made?
2.
Whether the ingredients required to establish ‘corrupt practices’
under section 123 of the Representation of the People Act, 1951,
has been established??
3.
Whether the election petitioner is entitled to the declaration of
the Election of the 3rd respondent as returned candidate, as null
and void? And
4.
To what other relief is the election petitioner is entitled to?
(17) Again on 22.01.2021, following additional issues were framed:-
1.
Whether the returned candidate has suppressed any assets or liabilities
or given false information in the affi davit fi led under Rule 4A of the Conduct of
Election Rules, 1961?
2.
Whether the returned candidate or his associates committed any
corrupt practice during the course of election?
3.
Whether the Returning Offi cer conducted the election of Theni
Parliamentary Constituency, in an impartial manner in accordance with the
provisions of the Conduct of Election Rules, 1961 and during the scrutiny
of nomination, under section 36 of the Representation of the People
Act, 1951?
(18) After framing all issues, the trial commenced on 04.04.2022 with the
examination of election petitioner as PW1. The election petitioner examined himself
as PW1. The 19th respondent was examined as 2nd witness. One Mr.Joseph Jackson
K.G., Registrar of Companies, Tamil Nadu, Andaman and Nicobar Islalnds, Chennai,
was examined as Court Witness [CW1] who was summoned to produce certain
documents by issuing subpoena. CW2 is the Registrar of Companies, Coimbatore.
The Returning Offi cer, namely, the then District Collector of Theni District, was
examined as CW3. One Mr.P.Selvaraj, Sub Inspector of Police, who is now in
Anti Land Grabbing Special Cell, Dindigul, was examined as CW4. Thereafter, on
the petition fi led by the election petitioner, the case was reopened and PW1 was
recalled. Thereafter, the 3rd respondent/Returned Candidate was examined as RW1.
Cross examination of RW1 by the learned counsel for the petitioner was done from
17.03.2023.
(19) The election petitioner marked 22 documents and three documents Exs.R1
to R3 were marked during cross examination of PWl/petitioner herein. Through Court
Witnesses, CW1 to CW4, 25 documents were marked as Exs.Cl to C25. Except
examining the 3rd respondent as RW1, and Exs.R1 to R3, no other document was
marked on the side of the 3rd respondent/Returned Candidate. After cross examination
of RW1 on 17.03.2023, both the learned counsels appearing for parties reported
that they have no further evidence to record and requested time for arguments.
(20) After hearing the arguments of the learned counsels on either side at length
on 11.04.2023, 17.04.2023, 18.04.2023, 26.04.2023 and on 27.04.2023, this Court
reserved the case “for orders” on 27.04.2023 with a permission to the counsels on
both sides to fi le their written submissions on or before 03.06.2023. On seeing the
written submissions, this Court listed the petition ‘for clarifi cation’ on 05.06.2023.
The matter was adjourned to 08.06.2023 at the request of learned senior counsel
for 3rd respondent. On 08.06.2023, the case was adjourned at the request of the
learned counsel for the 3rd respondent to fi le a petition to reopen the case to mark
some documents by recalling RW1.
(21) On. 19.06.2023, the applications in OA.Nos.537 to 539/2023 were fi led
and this Court allowed all the applications with liberty to the election petitioner to
raise his objections regarding the admissibility or relevance of the documents sought
to be marked on 28.06.2023. RW1 was reexamined and further cross examined.
Documents Exs.R4 to RI6 were marked on the side of 3rd respondent. Again the
petition was adjourned to 30.06.2023 for further arguments.
(22) After hearing further arguments at length on 30.06.2023, referring to
additional documents, this Court reserved orders.
Preliminary objection:
(23) Even though no issue was framed as to the locus standi of the election
petitioner, a preliminary objection was raised by the learned senior counsel
appearing for the 3rd respondent that the petitioner has not proved his locus standi
to maintain the election petition. The contention of the learned senior counsel
for the 3rd respondent is that under Section 81 of the Representation of People
Act, 1951, an election petition can be fi led by any candidate at such election or
any elector within 45 days from the date of election. Under Explanation to Section
81, an elector means a person who is entitled to vote at the election to which the
election petition relates. It is the submission of the learned senior counsel appearing
for the 3rd respondent that the petitioner has fi led the extract of Voters’ Helpline as
Ex.P1 and the Certifi cate under Section 65B of the Evidence Act as Ex.P2. Stating
that Ex.P2 is not relating to Ex.P1 and PW1 admits that Ex.P1 is not the Voter ID,
the learned Senior counsel submitted that there is no explanation as to why the
petitioner has not produced his Voter ID or the electoral roll, and hence the petitioner
is not competent to fi le the election petition.
(24) The petitioner has made specifi c averments about his locus standi as an
elector of Theni Parliamentary Constituency during 2019 Lok Sabha elections. During
cross-examination, PW1 specifi cally stated that he has fi led the election petition as
a voter of Theni Parliamentary Constituency. He has further stated that Ex.P1 is
the extract of electoral roll of Theni Parliamentary Constituency where his name is
also shown. Though an objection was raised as to the marking of Ex.P1, he has
spoken to the fact that he downloaded Ex.P1 containing one page from the website
of Election Commission of Government of India on 05.07.2019 from his desktop
computer. Though he refers to the document as Voter ID, from Ex.P1, it is seen that
it is downloaded from the website maintained by the Election Commission of India
to facilitate voters and serve public by providing “Voter Helpline” and the petitioner’s
name is confi rmed as a voter in the Assembly Constituency of Bodinaickanoor and
Theni Parliamentary Constituency. The identity of the petitioner as seen in Ex.P.1
is not in issue. Except suggesting that the petitioner has not fi led any document to
substantiate his statement that he is a voter, no other document or suggestion is put
to him about the petitioner’s status as a voter of Theni Parliamentary Constituency.
PW1 has deposed to the eff ect that Ex.P1 was downloaded 20 days before the
election, i.e., on 28.03.2019, which was when the voter helpline was updated and
it is accepted as a valid document to prove that the petitioner is a valid elector.
He further stated that if he brings the document Ex.P1 to the Polling Booth along
with the Photo ID, he can cast vote. When the document is not disputed merely
because the document-Ex.P2 wrongly describes the document-Ex.P1, this Court is
unable to countenance the arguments of the learned Senior Counsel appearing for
the 3rd respondent, especially when the evidence of PW1 is not controverted by
any independent evidence either oral or documentary. Therefore, this Court holds
that the petitioner is an eligible elector of Theni Parliamentary Constituency
and that he has locus standi to maintain the election petition.
ISSUE No.[1] & ADDITIONAL ISSUES [1] AND 13]:-
(25) Learned counsel appearing for the petitioner submitted that the petitioner
has pleaded suppression in the election affi davit in Form 26 by referring to the
shareholding and Directorship of 3rd respondent in M/s.Vani Fabrics Private Limited
and the consideration the 3rd respondent had received by transfer of shares even
if transfer is proved. Learned counsel relied upon the evidence of 19th respondent
and the counter affi davits fi led by respondents 19 and 26. He submitted that the
petitioner as well as the 3rd respondent has gone to trial with the full understanding
of the case pleaded by petitioner and respondents 19 and 26 and hence,
suppressions alleged by respondents 19 and 26 should also be gone into and that
every documents and evidence that are available in the course of trial in favour of
petitioner is relevant. In such circumstances, he submitted that the rejoinder of the
petitioner is also part of the pleadings and therefore, Issue No. [1] And Additional
Issues No.[1] and [3] are to be considered simultaneously by considering the entire
evidence available on record in this proceeding not only confi ned to pleadings of
petitioner but also in relation to the pleadings raised by respondents 19 and 26.
(26) Learned counsel for the petitioner also relied upon the judgment of the
Hon’ble Supreme Court in the case of Bhagwati Prasad Vs. Shri Chandramaul
reported in AIR 1966 SC 735, wherein the Hon’ble Supreme Court has held as
follows:-
“9. There can be no doubt that if a party asks for a relief on a
clear and specifi c ground, and in the issues or at the trial, no other
ground is covered either directly or by necessary implication, it would
not be open to the said party to attempt to sustain the same claim on
a ground which is entirely new. The same principle was laid down by
this Court in Sheodhar Rai v. Suraj Prasad Singh [1950 SCC 788: AIR
(1954) SC 758]. In that case, it was held that where the defendant
in his written statement sets up a title to the disputed lands as the
nearest reversioner, the Court cannot, on his failure to prove the said
case, permit him to make out a new case which is not only not made in
the written statement, but which is wholly inconsistent with the title set
up by the defendant in the written statement. The new plea on which
the defendant sought to rely in that case was that he was holding the
suit property under a shikmi settlement from the nearest reversioner. It
would be noticed that this new plea was in fact not made in the written
statement, had not been included in any issue and, therefore, no
evidence was or could have been led about it. In such a case clearly
a party cannot be permitted to justify its claim on a ground which is
entirely new and which is inconsistent with the ground made by it in
its pleadings.
10. But in considering the application of this doctrine to the facts of
the present case, it is necessary to bear in mind the other principle that
considerations of form cannot over-ride the legitimate considerations
of substance. If a plea is not specifi cally made and yet it is covered by
an issue by implication, and the parties knew that the said plea was
involved in the trial, then the mere fact that the plea was not expressly
taken in the pleadings would not necessarily disentitle a party from
relying upon it if it is satisfactorily proved by evidence. The general rule
no doubt is that the relief should be founded on pleadings made by the
parties. But where the substantial matters relating to the title of both
parties to the suit are touched, though indirectly or even obscurely, in
the issues, and evidence has been led about them, then the argument
that a particular matter was not expressly taken in the pleadings would
be purely formal and technical and cannot succeed in every case. What
the Court has to consider in dealing with such an objection is: did the
parties know that the matter in question was involved in the trial, and did
they lead evidence about it? If it appears that the parties did not know
that the matter was in issue at the trial and one of them has had no
opportunity to lead evidence in respect of it that undoubtedly would be
a diff erent matter. To allow one party to rely upon a matter in respect of
which the other party did not lead evidence and has had no opportunity
to lead evidence, would introduce considerations of prejudice, and in
doing justice to one party, the Court cannot do injustice to another.
15. It is hardly necessary to emphasise that in a matter of this kind,
it is undesirable and inexpedient to lay down any general rule. The
importance of the pleadings cannot, of course, be ignored, because it
is the pleadings that lead to the framing of issues and a trial in every
civil case has inevitably to be confi ned to the issues framed in the suit.
The whole object of framing the issues would be defeated if parties are
allowed to travel beyond them and claim or oppose reliefs on grounds
not made in the pleadings and not covered by the issues. But cases
may occur in which though a particular plea is not specifi cally included
in the issues, parties might know that in substance, the said plea is
being tried and might lead evidence about it. It is only in such a case
where the Court is satisfi ed that the ground on which reliance is placed
by one or the other of the parties, was in substance, at issue between
them and that both of them have had opportunity to lead evidence about
it at the trial that the formal requirement of pleadings can be relaxed. In
the present case, having regard to all the facts, we are unable to hold
that the High Court erred in confi rming the decree for ejectment passed
by the trial court on the ground that the defendant was in possession
of the suit premises as a licensee. In this case, the High Court was
obviously impressed by the thought that once the defendant was shown
to be in possession of the suit premises as a licensee, it would be futile
to require the plaintiff to fi le another suit against the defendant for
ejectment on that basis. We are not prepared to hold that in adopting
this approach in the circumstances of this case, the High Court can be
said to have gone wrong in law. ”
(27) However, the learned Senior counsel appearing for the 3rd respondent
contended that the allegations which are made by respondents 19 and 26 are not the
basis for challenging the election of 3rd respondent and that the evidence adduced
by the 19th respondent or anyone relating to the factual allegations/issues raised by
respondents 19 and 26 are not admissible in evidence. Referring to the well settled
principle of law that no amount of evidence can be looked into without pleading, the
learned counsel submitted that the pleading or evidence relating to the allegations
made by the petitioner either in the election petition or in the reply affi davit alone
can be looked into and no amount of evidence is admissible even if it supports the
case of the petitioner to prove suppression if the evidence is not relatable to the
allegations of suppression pleaded by petitioner. The Hon’ble Supreme Court and
this Court have repeatedly reiterated the principle set by the Privy Council in 1930,
that no amount of evidence can be looked into without a specifi c plea. The election
petition can be maintained only by a candidate or an elector. The election petition is
fi led impleading several other contestants. The scope of enquiry cannot be extended
beyond pleading in the election petition. Even the judgment cited by the learned
counsel for the petitioner reiterates that a party cannot be permitted to justify his
claim on a ground which is entirely new and which is inconsistent with the ground
raised in his pleadings. Therefore, this Court need not consider any other allegations
regarding suppression made in the counter affi davits fi led by respondents 19 and 26.
(28) Before considering whether the suppression of an asset is relevant and fatal
to the Returned Candidate in an election petition, this Court is bound to consider
the legal principles settled by Hon’ble Supreme Court in several binding precedents
in the following sequence.
(29) In the case of Union of India Vs. Association for Democratic Reforms
and another reported in 2002 [5] SCC 294, the Hon’ble Supreme Court considered
the issues [1] whether before casting votes, voters have a right to know relevant
particulars of their candidates? and [2] whether the High Court has jurisdiction
to issue directions in a writ fi led under Article 226 of the Constitution of India?
The Hon’ble Supreme Court stressed the importance of disclosure of assets and
liabilities of the candidate, his/her spouse and dependent children, overdues to
any Public Financial Institutions and any Government dues and charges against
properties. While considering the issues, the Hon’ble Supreme Court took note of
the position that democracy is a part of the basic structure of our Constitution and
Rule of Law and free and fair elections are basic features of democracy. Several
principles based on fundamental rights under our constitution were considered by
the Hon’ble Supreme Court to hold that every citizen have a right to know about
the candidate contesting the elections. The following directions were issued by the
Hon’ble Supreme Court to the Election Commission of India in paragraph No.48 of
the said judgment which reads thus:-
48. The Election Commission is directed to call for information
on affi davit 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 off ence in the past — if any, whether he is
punished with imprisonment or fi ne.
(2)
Prior to six months of fi ling of nomination, whether the
candidate is accused in any pending case, of any off ence
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 fi nancial institution or government
dues.
(5)
The educational qualifi cations of the candidate.
(30) After the above judgment of the Hon’ble Supreme Court in the Association
of Democratic Reforms’ case [cited supra], the Central Government promulgated
the Representation of People [Amendment] Ordinance, 2002 and later the Ordinance
was replaced by Representation of the People [3rd Amendment] Act, 2002 [Act 72 of
2002] inserting Sections 33-A and 33-B to the existing provisions. The amendment
was brought in just to nullify the directions issued by the Hon’ble Supreme Court in
the case of Union of India Vs. Association for Democratic Reforms and another
reported in 2002 [5] SCC 294. Contrary to the directions, Section 33-A though
require the candidate to furnish information about his involvement in any criminal
off ence and to fi le an affi davit, the particulars of assets, liabilities, and educational
qualifi cation, etc. are not made mandatory. Under Section 33-B, no candidate can
be held liable to disclose or furnish any such information which is not required to be
disclosed under the Act or Rules irrespective of any judgment or order of any Court.
(31) A Three Member Bench of Hon’ble Supreme Court in the case of People’s
Union for Civil Liberties [PUCL] and Another Vs. Union of India and Another
reported in 2003 [4] SCC 399, had unanimously struck down Section 33-B of the
amended Act on the ground that legislation cannot overturn or review the judgment.
The Hon’ble Supreme Court, in the said case, held that the judgment rendered by
the Hon’ble Supreme Court in the case of Union of India Vs. Association for
Democratic Reforms and another reported in 2002 [5] SCC 294, has attained
fi nality and there is no question of interpreting constitutional provision which calls
for reference to Constitution Bench under Article 145[3].
(32) The view expressed by majority of the Larger Bench of the Hon’ble Supreme
Court in People’s Union for Civil Liberties’s case [cited supra] reported in 2003
[4] SCC 399, in the form of conclusions, found in 123[1], [2], [4], [5], [6], [7] and
[9] which are extracted below:-
“V. Conclusions
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 diff erent from the right to get
information about public aff airs 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 I9(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)
……….
(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,
fi rstly, 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 defi cient 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 eff ectuate 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 fi ling the nomination.
Failure to do so has resulted in the violation of guarantee under.
Article 19(1) (a).
(8)
………
(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 verifi cation 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.’’
(33) The extent of jurisdiction of a Returning Offi cer to determine the question
as to whether a nomination papers fi led by an applicant to enable him to contest
the election in terms of provisions of RP Act, 1951, on the premise that the names
of the proposers were forged, is considered by the Hon’ble Supreme Court in the
case of Uttamrao Shivdas Jankar Vs. Ranjitsinh Vijaysinh Mohite Patil reported
in 2009 [13] SCC 131, and the Hon’ble Supreme Court has discussed the issue in
the light of several precedents and highlighted the following aspects:-
“40. While exercising his quasi-judicial power, in terms of
the provisions of the Act, it was incumbent upon the Returning
Offi cer to follow the instructions contained in the Handbook. It
provides for:
(i) an opportunity to be given to the candidate to
rebut the objections by placing suffi cient materials on record,
and
(ii) a presumption of validity of such nomination
paper.
Indisputably, the said instructions are binding being statutory
in nature. (See Rakesh Kumar v. Sunil Kumar [(1999) 2 SCC
489].) When there exists a presumption in favour of a party, it
is for the other party to adduce evidence.
44.
The presumption of correctness of the nomination
paper being statutory in nature, as the intention of Parliament
as also the Election Commission was that even if somebody
had fi led an improper nomination, but for which he can be
given benefi t of doubt being a possible subject-matter of an
election petition where the question would be gone into in
details, it was for the respondent herein to prove that the
nomination paper prima facie did not contain the signatures
of the proposers and, thus, were liable to be rejected.
45.
We must, however, notice another aspect of the
matter: a quasi-judicial authority while deciding an issue of
fact may not insist upon a conclusive proof. While doing so,
he has to form a prima facie view. Indisputably, however,
in terms of sub-section (5) of Section 36 in the Handbook
for Returning Offi cers, if any objection is raised then while
holding the summary inquiry in the matter of taking a decision
on the objection as to whether the same is valid or not, he is
not only required to record his brief decision for the same but
further in case of doubt the benefi t must go to the candidate
and the nomination paper should be held to be valid although
his view may be prima facie a plausible view or otherwise
bona fi de.
47.
Evidence by way of an affi davit is one of the modes
of proving a question of fact both under the Code of Civil
Procedure as also under the Code of Criminal Procedure
besides other special statutes recognising the same. The
Returning Offi cer, thus, while exercising his quasi-judicial
function could have appreciated the evidence brought on
record by the parties by way of affi davits. A wrong question
posed, leads to a wrong answer, which is a misdirection in
law. (See Cholan Roadways Ltd. [(2005) 3 SCC 241 : 2005
SCC (L&S) 395] , SCCp. 253, para 34.).”
(34) Again, a Larger Bench of Hon’ble Supreme Court, [a Three Member
Bench] in the case in Resurgence India Vs. Election Commission of India and
Another reported in 2014 [14] SCC 189, issued further directions to the Central
Government to eff ectuate the meaningful judgments of the Hon’ble Supreme Court
in UOI Vs. Association for Democratic Reforms reported in 2002 [5] SCC 294
and in People’s Union for Civil Liberties [PUCL] and Another Vs. Union of India
and Another reported in 2003 [4] SCC 399, in the following lines:-
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 fl owing from the concept of democracy and is an
integral part of Article 19(1) (a) of the Constitution.
29.2.
The ultimate purpose of fi ling of affi davit along with
the nomination paper is to eff ectuate 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 fi ling of nomination paper and for that purpose, the
Returning Offi cer can very well compel a candidate to furnish the
relevant information.
29.3.
Filing of affi davit with blank particulars will render the
affi davit nugatory.
29.4.
It is the duty of the Returning Offi cer to check
whether the information required is fully furnished at the time of
fi ling of affi davit with the nomination paper since such information
is very vital for giving eff ect to the “right to know” of the citizens.
If a candidate fails to fi ll the blanks even after the reminder by the
Returning Offi cer, the nomination paper is fi t to be rejected. We do
comprehend that the power of the Returning Offi cer 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 case [People’s Union for Civil Liberties
vs. Union of India, (2003) 4 SCC 399] will not come in the way
of the Returning Offi cer to reject the nomination paper when the
affi davit is fi led with blank particulars.
29.6.
The candidate must take the minimum eff ort 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 affi davit 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 Offi cer, we fi nd no reason
why the candidate must be again penalised for the same act by
prosecuting him/her.”
(35) Again, the Hon’ble Supreme Court, in the case of Kisan Shankar
Kathore Vs Arun Dattatray Sawant reported in 2014 [14] SC 162, has considered
the scope of the rules relating to suppression and the relevant pleading or proof
that are mandatory when suppression is alleged and proved. The Hon’ble Supreme
Court, after considering several precedents, has held as follows:-
“31. On Issue 7, fi nding of the High Court is that nomination was
improperly accepted by the Returning Offi cer by giving the following
reasons:
“130. That takes me to the next issue as to whether the
petitioner proves that the respondent’s nomination form is
improperly accepted by the Returning Offi cer? Insofar as this
issue is concerned, the respondent may be right to the extent
that the Returning Offi cer cannot be faulted for having accepted
the nomination form of the respondent. That was required to be
accepted in spite of the objection, in view of the decision of the
Apex Court in People’s Union for Civil Liberties [People’s Union
for Civil Liberties vs. Union of India, (2003) 4 SCC 399] and the
order issued by the Election Commission on the basis of the law
declared in the said judgment. Inasmuch as, it was not open to
the Returning Offi cer to enquire into contentious issues raised in
this petition in the summary enquiry at the stage of scrutiny of
nomination forms. Those matters necessarily have to be addressed
only after it is disclosed in an enquiry upon taking evidence on
the relevant facts at the trial of the election petition. That does
not mean that the nomination of the respondent was proper and
lawful. As the respondent’s nomination paper suff ered from the
defects already referred to in the earlier part of this decision, it is
plainly a case of improper acceptance of his nomination paper by
the Returning Offi cer, covered by the rigours of Section 100(1 )(d)
(i) of the Act. Issue 7 will have to be answered accordingly. ”
32.
Issue 8 pertains to the question as to whether the election
result was materially aff ected 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 affi davit or no affi davit fi led therewith, which affi davit 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 aff ected
by such improper acceptance.
138. The avowed purpose of fi ling the affi davit 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 specifi ed off ences). Those are
matters which are fundamental to the accomplishment of 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 off ers himself or who is nominated for election
to represent the voters from that constituency. As the candidate
has to disclose this information on affi davit, the solemnity of the
affi davit cannot be allowed to be ridiculed by the candidates
by off ering incomplete information or suppressing material
information, resulting in disinformation and misinformation to the
voters. The sanctity of disclosure to be made by the candidate
fl ows from the constitutional obligation”.
33. As pointed out above, there is no dispute on facts that
information in respect of the aforesaid four aspects was not disclosed
by the appellant in the affi davit fi led by him along with the nomination
form. The defence and/or justifi cation given for non-disclosing
these particulars is rightly rebuff ed by the High Court. However,
the submission of Mr B. Adinarayana Rao, learned Senior Counsel
appearing for the appellant, was that having regard to the judgment of
this Court in G.M. Siddeshwar vs. Prasanna Kumar [G.M. Siddeshwar
vs. Prasanna Kumar, (2013) 4 SCC 776 : (2013) 2 SCC (Civ) 715] the
Court was required to examine as to whether the information given
in the affi davits was substantial compliance with those particulars
regarding government dues, assets and liabilities, etc. He submitted
that the information amounted to substantial compliance. For this
purpose, his attempt was to demonstrate that insofar as electricity
dues of MSEB are concerned, there was a genuine dispute about the
non-payment; as far as ownership of Bungalow No. 866 in the name
of his wife is concerned, it was added to the value of the properties
belonged to the appellant; municipal taxes in respect of this bungalow
were again the subject-matter of dispute; the value of the vehicle
owned by his wife was also disclosed against his own name; and as
far as properties owned by the partnership fi rm are concerned, the
appellant was simply a partner from which he had resigned, even
when this event occurred after the fi ling of the nomination form.
37. We have already discussed in detail each item of
non-disclosure as well as defence of the appellant pertaining thereto.
For the reasons recorded in detail at that stage by the High Court
and stated above, with which we agree, we are of the opinion that its
fi nding about non-disclosure of the information qua all the aspects is
without blemish. There is a specifi c format in which the information is
to be given, which was not adhered to.
38. With these remarks we proceed to deal with the fi rst aspect.
Insofar as non-disclosure of the electricity dues is concerned, in the
given facts of the case, we are of the opinion that it may not be a serious
lapse. No doubt, the dues were outstanding, at the same time, there
was a bona fi de dispute about the outstanding dues in respect of the fi rst
electricity meter. It would have been better on the part of the appellant to
give the information along with a note about the dispute, as suggested
by the High Court, we still feel that when the appellant nurtured belief
in a bona fi de manner that because of the said dispute he is not to give
the information about the outstanding amount, as it had not become
“payable”, this should not be treated as a material lapse. Likewise, as
far as the second electricity meter is concerned, it was in the premises
which was rented out to the tenants and the dues were payable by
the tenants in the fi rst instance. Again, in such circumstances, one can
bona fi de believe that the tenants would pay the outstanding amount.
No doubt, if the tenants do not pay the amount the liability would have
been that of the owner i.e. the appellant. However, at the time of fi ling
the nomination, the appellant could not presume that the tenants would
not pay the amount and, therefore, it had become his liability. Same
is the position with regard to non-payment of a sum of Rs.1783 as
outstanding municipal dues, where there was a genuine dispute as to
revaluation and reassessment for the purpose of assessing the taxes
was yet to be undertaken. Having said so, we may clarify that it would
depend on the facts and circumstances of each case as to whether
such a non-disclosure would amount to material lapse or not. We are,
thus, clarifying that our aforesaid observation in the facts of the present
case should not be treated as having general application.
39. Even if it is so, in respect of the aforesaid aspects, on other
non-disclosures, the case of the appellant has to fail. We fi nd a clear case
of non-disclosure of Bungalow No. 866 in the name of the appellant’s
wife, which is a substantial lapse. So is the case about the non-disclosure
of vehicle in the name of the appellant’s wife. Likewise, non-disclosure of
the appellant’s interest/share in the partnership fi rm is a very serious and
major lapse. On all these aspects, we fi nd that the defence/explanation
furnished by the appellant does not inspire any confi dence. It is simply
an afterthought attempt to wriggle out of the material lapse on the part
of the appellant in not disclosing the required information, which was
substantial. We, therefore, are of the view that in the affi davits given by
the appellant along with the nomination form, material information about
the assets was not disclosed and, therefore, it is not possible to accept
the argument of the appellant that information contained in the affi davits
be treated as suffi cient/substantial compliance.
40. We have already reproduced above the relevant portions of
judgments in Assn, for Democratic Reforms [Union of India vs. Assn, for
Democratic Reforms, (2002) 5 SCC 294] and People’s Union for Civil
Liberties [People’s Union for Civil Liberties vs. Union of India, (2003)
4 SCC 399] and the guidelines issued by the Election Commission
pursuant thereto. A conjoint and combined reading thereof clearly
establishes that the main reason for issuing directions by this Court
and guidelines by the Election Commission pursuant thereto is that the
citizens have fundamental right under Article 19(1)(a) of the Constitution
of India to know about the candidates contesting the elections and this
is the primary reason that casts a solemn obligation on these candidates
to furnish information regarding the criminal antecedents, educational
qualifi cations and assets held by the candidate, his spouse and dependent
children. It is on that basis that not only the Election Commission has
issued guidelines, but also prepared formats in which the affi davits are
to be fi led. As a fortiori, it follows that if the required information as per
the said format in respect of the assets of the candidate, his wife and
dependent children is not given, it would amount to suppression/non-
disclosure.
41.
It was argued that the acceptance of nomination is as per
Section 33 of the Act, which contains requirement for a valid nomination.
Further Section 36(2) deals with the rejection of nomination on grounds
specifi ed therein. It was the submission of the learned Senior Counsel
that at the time of scrutiny of the nomination under Section 36, nomination
could be rejected only if any of the grounds stipulated in sub-section (2)
are satisfi ed and there cannot be any “deemed” ground, which is not
covered by Section 36(2) of the Act. Therefore, the Returning Offi cer had
rightly accepted the nomination form as none of the grounds specifi ed
in sub-section (2) of Section 36 were attracted. He further submitted
that Sections 8-A, 9, 9-A, 10 and 10-A provide disqualifi cations for the
Members of Parliament and the State Legislature. As per the counsel,
from the scheme of the Act it can be seen that at the time of scrutiny
of nomination, all that the Returning Offi cer is required to examine is
as to whether the candidate suff ers from any of the disqualifi cations
mentioned in Sections 8 to 10-A of the Act and as to whether the
nomination is in the form prescribed by Section 33 and accompanied by
the documents mentioned in sub-sections (2) to (7) of Section 33 and
whether it is accompanied by an affi davit prescribed by Rule 4-A and
the deposit required by Section 34 of the Act. Apart from the aforesaid,
the Returning Offi cer is not empowered to reject the nomination on any
other ground. He argued that the right of the Returning Offi cer to conduct
a summary inquiry into the correctness or otherwise of the contents of
the affi davit fi led along with the nomination was expressly taken away as
can be seen from the judgment of this Court in People’s Union for Civil
Liberties [People’s Union for Civil Liberties vs. Union of India, (2003) 4
SCC 399]. Having noted that the Returning Offi cer has no power to reject
a nomination where false information is furnished or material information
is suppressed, the Election Commission of India and the Union of
India have requested this Court to treat the same as equal to a blank
affi davit, as noted in Resurgence India [Resurgence India vs. Election
Commission of India, (2014) 14 SCC 189].
42. When the information is given by a candidate in the affi davit
fi led 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 Offi cer at that time to conduct a detailed examination.
Summary enquiry may not suffi ce. The present case is itself an example
which loudly demonstrates this. At the same time, it would not be
possible for the Returning Offi cer to reject the nomination for want of
verifi cation 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 affi davit 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 Offi cer would
be in a position to reject the nomination. Likewise, where the blanks
are left in an affi davit, 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 fi nding, which would have resulted
in rejection, the eff ect 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
be questioned. This cannot be countenanced.”
(36) The Hon’ble Supreme Court, in the case of Sri Meirembant Prithiviraj
@ Prithviraj Singh Vs. Pukhrem Sharatchandra Singh reported in 2017 [2] SCC
487, reiterating the principles laid down in the above cited judgments, has elaborately
considered the issue whether it is necessary to plead and prove that the result was
materially aff ected when the nomination of the returned candidate was found to have
been improperly accepted. The entire discussions in the judgment with reference to
relevant provisions of Representation of People Act, 1951 and precedents as found
in the judgment are extracted below:
“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 and requirements of a valid nomination. A
nomination paper complete in the prescribed form, signed by
a candidate and by an elector of the constituency as proposer
should be delivered to the Returning Offi cer within the prescribed
period. Section 33-A which was inserted by Act 72 of 2002
with eff ect from 24-8-2002 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 for adjudication of this case is as follows:
“36. Scrutiny of nomination.—(1)-(3) ***
(4) The Returning Offi cer 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 eff ect from 3-9-2002 reads as under:
“4-A. Form of affi davit to be fi led 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 Offi cer the
nomination paper under sub-section (1) of Section 33 of the Act,
also deliver to him an affi davit sworn by the candidate before a
Magistrate of the First Class or a Notary in Form 26.”
11. A candidate has to fi le an affi davit along with his nomination
paper as prescribed in Form 26 in which one of the columns
pertains to the educational qualifi cation. 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 the High Court is of opinion
— (a) that on the date of his election a returned candidate was not
qualifi ed, or was disqualifi ed, to be chosen to fi ll the seat under
the Constitution or this Act 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, insofar as it concerns a
returned candidate, has been materially aff ected—
(i)
by the improper acceptance of any nomination, or
(ii) by any corrupt practice committed in the interests of the
returned candidate by an agent other than his election agent,
or
(iii) by the improper reception, refusal or 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 the High Court, a returned candidate has
been guilty by an agent, other than his election agent, of any corrupt
practice but the High Court is satisfi ed—
(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 without the consent, of the
candidate or his election agent;
(b)
* * *
(c)
that the candidate and his election agent took all reasonable
means for preventing the commission of corrupt practices at the
election; and
(d)
that in all other respects the election was free from any corrupt
practice on the part of the candidate or any of his agents, then the
High Court may decide that the election of the returned candidate is
not void. ”
12. Section 125-A prescribes penalty for fi ling false affi davit which
is reproduced as under:
“12 5-A. Penalty for fi ling false affi davit, etc.—
A candidate who himself or through his proposer,
with intent to be elected in an election—
(i) fails to furnish information relating to subsection
(1) of Section 33-A; or
(ii) gives 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 affi davit which is required to be delivered under
sub-section (2) of Section 33-A, as the case may
he, 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 fi ne, 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. Assn, for Democratic Reforms [Union of India vs.
Assn, for Democratic Reforms, (2002) 5 SCC 294] 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 qualifi cation or holding of property is relevant for electing a person
to be his representative. Pursuant to the judgment in Union of India vs. Assn, for
Democratic Reforms [Union of India vs. Assn, for Democratic Reforms, (2002)
5 SCC 294] 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 v.
Union of India [People’s Union for Civil Liberties v. Union of India, (2003) 4 SCC
399] in which it was held as follows: (SCC pp. 452-53, para 78)
“78. What emerges from the above discussion can be
summarised thus:
(D) The contention that as there is no specifi c 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
fi rst 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 suffi ciently 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 28-6-2002 in which there was a reference to the
judgment of this Court in Union of India v. Assn, for Democratic Reforms
[Union of India v. Assn, for Democratic Reforms, (2002) 5 SCC 294] in
which it was held that information on fi ve aspects has to be provided to the
voter. One of the fi ve aspects pertains to the educational qualifi cation of the
candidates. An Order was issued by the Election Commission of India on
28- 6-2002 directing that full and complete information relating to the fi ve aspects
which were mentioned in the judgment has to be furnished. Providing incomplete
information or suppression of material information on any of the fi ve aspects was
to be treated as a defect of substantial character by the Returning Offi cers.
16. In Resurgence India v. Election Commission of India [Resurgence India
vs. Election Commission of India, (2014) 14 SCC 189] this Court held that (SCC
p. 200, para 21) every candidate is obligated to fi le an affi davit with relevant
information with regard to their criminal antecedents, assets and liabilities and
educational qualifi cation. The fundamental right under Article 19(1)(a) of the voter
was reiterated in the said judgment and it was held that fi ling of affi davit with blank
particulars would render the affi davit as nugatory. In Kisan Shankar Kathore v.
Arun Dattatray Saw ant [Kisan Shankar Kathore v. Arun Dattatray Sawant, (2014)
14 SCC 162] this Court considered the question as to whether it was incumbent
upon the appellant to have disclosed the information sought for in the nomination
form and whether the non-disclosure thereof renders 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 qualifi cation of a
candidate. It is also clear from the provisions of the Act, the Rules and Form 26
that there is a duty cast on the candidates to give correct information about their
educational qualifi cations. It is not in dispute that the appellant did not study MBA
in the Mysore University. It is the case of the appellant that reference to MBA from
Mysore University was a clerical error. It was contended by the appellant that he
always thought of doing MBA by correspondence course from Mysore University.
But, actually he did not do the course. The question which has to be decided is
whether the declaration given by him in Form 26 would amount to a defect of
substantial nature warranting rejection of his nomination.
18. Section 36(4) of the Act mandates that the Returning Offi cer 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, fi led in 2012 is
not a clerical error as contended by him. The appellant contested election to
the same constituency in 2008 and in the affi davit fi led by him in Form 26 he
declared that he passed MBA from Mysore University in 2004. In the affi davit
fi led by him in this election petition by way of examination-in-chief the appellant
stated that his nomination paper and the enclosed affi davit were prepared and
fi led by his counsel Chakpam Bimolchandra Singh on the instructions of his agent
Ph. Shamu Singh. He also stated that his counsel fi lled the prescribed affi davit
in his own handwriting. The appellant also stated that he signed the affi davit
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 Advocate Chakpam Bimolchandra Singh to fi ll up Column 9
of the affi davit 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 qualifi cation. 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 fi lled up the entries in Form 26. He
stated that he entered the educational qualifi cations 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
affi davit.
23. It is clear from the above judgment in Durai Muthuswami [Durai
Muthuswami vs. N. Nachiappan, (1973) 2 SCC 45] that there is a diff erence
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
diff erence 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 aff ected 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 insofar as it concerns the
returned candidate has been materially aff ected 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.
24. The judgment of this Court in Durai Muthuswami [Durai Muthuswami vs.
N. Nachiappan, (1973) 2 SCC 45] was referred to in Jagjit Singh vs. Dharam Pal
Singh [Jagjit Singh vs. Dharam Pal Singh, 1995 Supp (1) SCC 422] , in which it
was held as follows: (Jagjit Singh case [Jagjit Singh vs. Dharam Pal Singh, 1995
Supp (1) SCC 422] SCCp. 429, para 21)
“21. The trial Judge has held that since there is no
averment in the petition that the result of the election was
materially aff ected 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 aff ected
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
aff ected by the alleged infi rmity. (See: Durai Muthuswami vs.
N. Nachiappan [Durai Muthuswami vs. N. Nachiappan, (1973)
2 SCC 45].) 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 aff ected. ”
25. It was held by this Court in Vashist Narain Sharma vs. Dev Chandra [Vashist
Narain Sharma vs. Dev Chandra, (1955) 1 SCR 509 : AIR 1954 SC 513] as under:
(AIR pp. 515-16, para 9)
“9. The learned counsel for the respondents concedes that the
burden of proving that the improper acceptance of a nomination
has materially aff ected 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 diff erence
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 fi rst case the result of the election is not materially
aff ected because if all the wasted votes are added to the votes of the candidate
securing the highest votes, it will make no diff erence to the result and the
returned candidate will retain the seat. In the other two cases it is contended
that the result is materially aff ected. 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 aff ected. 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 anyone to predicate how many or which proportion of
the votes will go to one or the other of the candidates. While it must he recognised
that the petitioner in such a case is confronted with a diffi cult 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 fi nd 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.”
(emphasis supplied)
This Court in Kisan Shankar Kathore vs. Arun Dattatray Sawant [Kisan Shankar
Kathore vs. Arun Dattatray Sawant, (2014) 14 SCC 162] 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 fi led by
the returned candidate was dismissed by this Court by observing as follows: (SCCp.
188, para 43)
“43…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 fi nding, which would have resulted
in rejection, the eff ect would he same, namely, such a
candidate was not entitled to contest and the election is
void”.
26. Mere fi nding that there has been an improper
acceptance of the nomination is not suffi cient 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 aff ected.
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 aff ected need not be proved further.
We do not fi nd substance in the submission of Mr Giri that
the judgment in Durai Muthuswami [Durai Muthuswami vs.
N. Nachiappan, (1973) 2 SCC 45] is not applicable to the
facts of this case. The submission that Durai Muthuswami
[Durai Muthuswami v. N. Nachiappan, (1973) 2 SCC 45] is a
case of disqualifi cation 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 with Section 100(1)(d). The
said judgment squarely applies to this case on all fours. We
also do not fi nd 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 aff ected. There is
no requirement to prove that the result of the election of the
returned candidate is materially aff ected once his nomination
is declared to have been improperly accepted.”
(37) Considering the legal position settled by the Hon’ble Supreme Court, in the
decided cases above, this Court examined the case on hand with reference to the
issues “suppression” and “improper acceptance of nomination of third respondent”.
Even though Additional Issue No.2 could have been framed with little more clarity,
the parties and the counsels during trial and arguments have focused whether the
third respondent has properly disclosed his assets and liabilities in the affi davit in
Form 26 properly and whether the suppression of assets and liabilities by third
respondent leads to a fi nding or declaration that the nomination of third respondent
has been improperly accepted.
(38) After reopening of case, the 3rd respondent has marked Exs.R4 to R16 on
28.06.2023. The applications fi led by the 3rd respondent in OA.Nos.537 to 539/2023
were allowed subject to the objections raised by the learned counsel for the petitioner
as to the admissibility of the documents. Since the documents, namely, Exs.R4 to
R16 were generated from computer, the main objection was that the document
without due certifi cate under Section 65-B of the Evidence Act is not admissible and
the 3rd respondent is not competent to certify the certifi cate under Section 65-B of
Evidence Act or on other grounds. Therefore, before going into issues on merits, the
objection raised by learned counsel for the election petitioner regarding admissibility
of documents by referring to Section 65-B of Evidence Act is also to be considered.
(39) Section 65-B of Evidence Act reads as follows:-
65B. Admissibility of electronic records.—
(1)
Notwithstanding anything contained in this Act, any
information contained in an electronic record which is printed
on a paper, stored, recorded or copied in optical or magnetic
media produced by a computer (hereinafter referred to as the
computer output) shall be deemed to be also a document, if the
conditions mentioned in this section are satisfi ed in relation to the
information and computer in question and shall be admissible in
any proceedings, without further proof or production of the original,
as evidence of any contents of the original or of any fact stated
therein of which direct evidence would be admissible.
(2)
The conditions referred to in sub-section (1) in respect
of a computer output shall be the following, namely:—
(a)
the computer output containing the information was
produced by the computer during the period over which the
computer was used regularly to store or process information for
the purposes of any activities regularly carried on over that period
by the person having lawful control over the use of the computer;
(b)
during the said period, information of the kind contained
in the electronic record or of the kind from which the information
so contained is derived was regularly fed into the computer in the
ordinary course of the said activities;
(c)
throughout the material part of the said period, the
computer was operating properly or, if not, then in respect of
any period in which it was not operating properly or was out of
operation during that part of the period, was not such as to aff ect
the electronic record or the accuracy of its contents; and
(d)
the information contained in the electronic record
reproduces or is derived from such information fed into the
computer in the ordinary course of the said activities.
(3)
Where over any period, the function of storing or
processing information for the purposes of any activities regularly
carried on over that period as mentioned in clause (a) of
sub-section (2) was regularly performed by computers, whether—
(a) by a combination of computers operating over that
period; or
(b) by diff erent computers operating in succession over that
period; or
(c) by diff erent combinations of computers operating in
succession over that period; or
(d) in any other manner involving the successive operation
over that period, in whatever order, of one or more computers
and one or more combinations of computers, all the computers
used for that purpose during that period shall be treated for
the purposes of this section as constituting a single computer;
and references in this section to a computer shall be construed
accordingly.
(4) In any proceedings where it is desired to give a statement
in evidence by virtue of this section, a certifi cate doing any of the
following things, that is to say,—
(a) identifying the electronic record containing the statement
and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the
production of that electronic record as may be appropriate for
the purpose of showing that the electronic record was produced
by a computer;
(c) dealing with any of the matters to which the conditions
mentioned in sub-section (2) relate, and purporting to be signed
by a person occupying a responsible offi cial position in relation
to the operation of the relevant device or the management of the
relevant activities (whichever is appropriate) shall be evidence of
any matter stated in the certifi cate; and for the purposes of this
sub-section it shall be suffi cient for a matter to be stated to the
best of the knowledge and belief of the person stating it.
(5) For the purposes of this section,—
(a) information shall be taken to be supplied to a computer if
it is supplied thereto in any appropriate form and whether it is so
supplied directly or (with or without human intervention) by means
of any appropriate equipment;
(b) whether in the course of activities carried on by any offi cial
information is supplied with a view to its being stored or processed
for the purposes of those activities by a computer operated
otherwise than in the course of those activities, that information, if
duly supplied to that computer, shall be taken to be supplied to it in
the course of those activities;
(c) a computer output shall be taken to have been produced by a
computer whether it was produced by it directly or (with or without
human intervention) by means of any appropriate equipment.
Explanation.—For the purposes of this section any reference
to information being derived from other information shall be a
reference to its being derived therefrom by calculation, comparison
or any other process.
(40) In the case of Anvar P.V. Vs. P.K. Basheer and Others reported in 2014
[10] SCC 473, a Three Member Bench of Hon’ble Supreme Court has considered
the scope of Section 65-B of Evidence Act and held as follows:-
“14. Any documentary evidence by way of an electronic record
under the Evidence Act, in view of Sections 59 and 65-A, can be
proved only in accordance with the procedure prescribed under
Section 65-B. Section 65-B deals with the admissibility of the
electronic record. The purpose of these provisions is to sanctify
secondary evidence in electronic form, generated by a computer.
It may be noted that the section starts with a non obstante clause.
Thus, notwithstanding anything contained in the Evidence Act, any
information contained in an electronic record which is printed on
a paper, stored, recorded or copied in optical or magnetic media
produced by a computer shall be deemed to be a document only if
the conditions mentioned under sub-section (2) are satisfi ed, without
further proof or production of the original. The very admissibility of
such a document i.e. electronic record which is called as computer
output, depends on the satisfaction of the four conditions under
Section 65-B(2). Following are the specifi ed conditions under Section
65-B(2) of the Evidence Act:
(i) The electronic record containing the information should have
been produced by the computer during the period over which the
same was regularly used to store or process information for the
purpose of any activity regularly carried on over that period by the
person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or
of the kind from which the information is derived was regularly fed
into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was
operating properly and that even if it was not operating properly for
some time, the break or breaks had not aff ected either the record or
the accuracy of its contents; and
(iv) The information contained in the record should be a
reproduction or derivation from the information fed into the computer
in the ordinary course of the said activity.
15. Under Section 65-B(4) of the Evidence Act, if it is desired
to give a statement in any proceedings pertaining to an electronic
record, it is permissible provided the following conditions are satisfi ed:
(a) There must be a certifi cate which identifi es the electronic
record containing the statement;
(b) The certifi cate must describe the manner in which the
electronic record was produced;
(c) The certifi cate must furnish the particulars of the device
involved in the production of that record;
(d) The certifi cate must deal with the applicable conditions
mentioned under Section 65-B(2) of the Evidence Act; and
(e) The certifi cate must be signed by a person occupying a
responsible offi cial position in relation to the operation of the relevant
device.
16.
It is further clarifi ed that the person need only to state
in the certifi cate that the same is to the best of his knowledge and belief
Most importantly, such a certifi cate must accompany the electronic record
like computer printout, compact disc (CD), video compact disc (VCD), pen
drive, etc., pertaining to which a statement is sought to be given in evidence,
when the same is produced in evidence. All these safeguards are taken to
ensure the source and authenticity, which are the two hallmarks pertaining
to electronic record sought to be used as evidence. Electronic records being
more susceptible to tampering, alteration, transposition, excision, etc. without
such safeguards, the whole trial based on proof of electronic records can lead
to travesty of justice.
17.
Only if the electronic record is duly produced in terms
of Section 65-B of the Evidence Act, would the question arise as to the
genuineness thereof and in that situation, resort can be made to Section
45-A—opinion of Examiner of Electronic Evidence.”
(41) This Court is able to see that the documents produced by 3rd respondent
by way of additional documents particularly Exs.R4 to R16 are vulnerable self-serving
documents. Even though documents were permitted to be marked subject to every
objection raised by the learned counsel for the election petitioner at the time of
marking the documents, this Court fi nds that the 3rd respondent has not produced
any other document except the said documents to controvert the specifi c averments
in the election affi davit. The 3rd respondent who is in control of the documents is
expected to produce the original records like the accounts of various Firms and
Organizations in which the 3rd respondent was holding some share or interest.
Therefore, this Court will now consider the documents which satisfy the requirements
of law to be acted upon as a document admissible in evidence.
SUPPRESSION OF EQUITY SHARES OR ITS VALUE IN M/S.VANI FABRICS
PRIVATE LIMITED:-
(42) On the issue of suppression, it is the specifi c case of the petitioner that the
3rd respondent had suppressed his holdings of 15,000 shares in M/s.Vani Fabrics
Private Limited as on the date when the election affi davit was fi led. However, it is
contended by the 3rd respondent that the 3rd respondent had already transferred his
shares. The petitioner relied upon the Balance Sheet for the Financial Year ended
by 31.03.2018. Since the period covered under Ex.P5 is prior to the date of fi ling
of nomination, the document-Ex.P5 is not relevant. Exs.C4 to C7 are documents
produced by the Registrar of Companies, Coimbatore who was examined as CW2.
The documents-Exs.C4 and C5 show that they pertain to M/s.Vani Fabrics Private
Limited for the Financial Year ended on 31.03.2018. Exs.C4 and C5 are the fi nancial
statement and Annual Returns of the company fi led by company relating to the period
from 01.04.2017 to 31.03.2018. Exs.C4 and C5 shows 3rd respondent and his brother
as Directors, each holding 15,000 equity shares in M/s.Vani Fabrics Private Limited.
These documents pertaining to the previous period are not relevant. The Registrar of
Companies, Coimbatore, who is examined as CW2, produced Exs.C6 and C7 along
with annexures. Ex.C6 is Form DIR-12 dated 21.08.2018 with annexures and Ex.C7
is Form No.MGT-7 dated 31.12.2019 with annexure relating to M/s.Vani Fabrics.
From the annexures to Ex.C6, it is seen that the third respondent and his brother
have given letters of resignation to the Board of Directors on 16.08.2018 informing
that they are resigning from the post of Directorship. They requested the Board to
inform the Registrar of Companies (ROC) and all the statutory authorities. Certifi ed
copy of the resolution passed at the meeting of Board of Directors on 16.08.2018,
available in the annexures shows that the resignation of third respondent and
his brother was accepted on 16.08.2018. From the annexure to Ex.C7, it is seen
that transfer of 15,000 equity shares held by the third respondent in favour of his
brother is shown in the Annual Returns submitted by the company on 28.06.2019.
In the Return, it is stated that transfer of 15,000 equity shares had been registered
on 17.03.2019. However, the transfer of shares was informed to the Registrar of
Companies after election. List of shareholders furnished by the Director of Company
as on 31.03.2019 shows that the third respondent is not holding any shares as on
31.03.2019. Though the list is signed by one of the Directors, no date is mentioned.
Hence, as per Returns furnished by the Company to ROC after election, the third
respondent is neither a Director nor a shareholder as on 17.03.2019. However, no
other statutory record maintained by the Company is produced. Since it is stated that
the third respondent resigned from Directorship and his resignation was accepted,
the case of petitioner that the third respondent did not disclose his remuneration
as Director of M/s.Vani Fabrics cannot be readily accepted unless there is positive
evidence to the contrary. Hence, as per Returns furnished by the Company, after
election the third respondent is not holding any shares in the company M/s.Vani
Fabrics Private Limited as on 18.03.2019. However, the case of 3rd respondent
that he has transferred his shares on 17.03.2019 is not corroborated by any other
document, except Ex.C7. In the Annual Return, it is stated that share transfer was
registered on 17.03.2019. No other Company record or evidence is produced by
3rd respondent to corroborate. CW2 categorically states that registration is not done
by Registrar of Companies and it is done by the Company. The list of shareholders
furnished by the Company to ROC shows that the 3rd respondent was not holding
any share in M/s.Vani Fabrics as on 31.03.2019. This is just a piece of paper
which can be prepared any time. From the list of shareholders as on 31.03.2019,
annexed with Ex.C7, this Court fi nds that the share of brother of 3rd respondent
is increased from 15000 to 30000 to show that the 3rd respondent has transferred
his shares in favour of his brother Mr.Jayapradeep Panneerselvam. However, it is
contended by the petitioner in the reply affi davit that the alleged share transfer is
done by fabrication of records by 3rd respondent after fi ling the election petition.This
was stoutly denied by 3rd respondent. CW2, Registrar of Companies, Coimbatore,
admitted that as per the records of the company, the 3rd respondent ceased to be
a Director of M/s.Vani Fabrics from 16.08.2018. Regarding suppression of assets
and liabilities, the burden lies on the petitioner to prove it. From Ex.C7, the name of
3rd respondent does not fi nd a place as a shareholder as per information furnished
to the Registrar of Companies and hence, this Court may accept the case of 3rd
respondent that he ceased to be a shareholder with eff ect from 17.03.2019 in the
absence of any other evidence or an attempt by petitioner to call for records from the
company to show that the company had manipulated its records. There is no cross
examination of RW1 regarding the transfer of shares or about the suppression by
holding shares in the company M/s.Vani Fabrics. Ex.R9 produced by 3rd respondent
also shows that 15,000 shares held by 3rd respondent in M/s.Vani Fabric Private
Limited was transferred to his brother. Therefore, this Court is of the view that the
petitioner is neither a Director nor a shareholder and the case of the 3rd respondent
that he had transferred the shares on 17.03.2019 in favour of his brother can be
accepted.
SUPPRESSION OF THE VALUE OF SHARES TRANSFERRED AND OTHER
ASSETS AND INCOME FROM DIFFERENT SOURCES:
(43) However, the matter does not rest with that. The fact that the 3rd respondent
has transferred his shares to his brother just prior to the fi ling of nomination can
be accepted as seen from the documents. Transfer of shares has to be for a
consideration. As pointed out by the learned counsel for the petitioner, the value
of shares as per company records was Rs.27 lakhs. Even the book value of the
shares, according to the Books of Accounts of company of M/s.Vani Fabrics, was
Rs.100/- per share. The case of the petitioner in the reply to the counter affi davit that
the 3rd respondent has suppressed his asset namely the value of shares transferred
by him in favour of his brother just few days prior to the fi ling of nomination as an
alternative plea cannot be ignored. What is more important is that the 3rd respondent
in his reply affi davit in response to the counter affi davit of 26th respondent, has
stated that the shares were transferred to his own brother and there is no question
of 3rd respondent receiving any consideration. The transaction was referred to as an
internal adjustment between 3rd respondent and his brother. Quite surprisingly, the
3rd respondent has stated that he has paid capital gains for the said transaction.
This of course with some degree of uncertainty would suggest that the shares were
transferred for a valuable consideration with profi t and there is suppression of assets
namely the consideration for the transferred shares and it is a relevant and material
fact if it has to be accepted that the disclosure of assets and liabilities is mandatory.
(44) This Court has noted that the 3rd respondent has no explanation either in
the counter affi davit or in his reply about the consideration he had received by way
of transfer of 15,000 equity shares in M/s.Vani Fabrics Private Limited. It is surprising
to note that during examination, the 3rd did not mention about the transfer of shares.
However, the 3rd respondent by way of additional documents produced Ex.R7-Ledger
Account of the 3rd respondent pertaining to the loan transaction between the 3rd
respondent and his brother Mr.Jayapradeep. This document is fi led along with the
certifi cate issued by the 3rd respondent’s Auditor under Section 65-B of Evidence Act.
The Auditor is not the person who is competent to certify the accounts maintained
by the 3rd respondent. Learned counsel for the election petitioner pointed out that
this document reveals more about the suppression. This document indicates that the
3rd respondent has paid certain amounts by way of repaying Housing Loan. The 3rd
respondent then produced Ex.R12-Ledger Account of 3rd respondent’s brother. The
same Auditor has issued Certifi cate under Section 65-B of Evidence Act. Ex.R12 would
show a receipt of Rs.24 lakhs by 3rd respondent’s brother from the 3rd respondent.
The 3rd respondent also produced Ex.R14-Income Tax Returns submitted by the 3rd
respondent and Ex.R14-Income Tax Returns submitted by the 3rd respondent and
Ex.R15-Income Tax Returns submitted by 3rd respondent’s brother. Learned
counsel for the petitioner referring to these two documents, submitted that if these
two documents were to be accepted, then it would reveal that the 3rd respondent
has suppressed several income in his affi davit in Form-26. It is pointed out from
the documents that the 3rd respondent has disclosed a sum of Rs.33,03,136/- as
liability of 3rd respondent to his brother. The 3rd respondent’s brother in Ex.R15
has shown a sum of Rs.66,42,781/- as the amount payable by his brother,
3rd respondent herein. PW1 deposed that the 3rd respondent has not disclosed his
assets and liabilities and his sources of income, particularly, his salary which he is
receiving as a Director of a Company. Even though there is no specifi c pleading
about salary, the allegation of suppression is on the basis of balance sheet of the
Company M/s.Vani Fabrics Private Limited. Referring to the fact that the 3rd respondent
is a shareholder and Director in M/s.Vani Fabrics Private Limited, it is suggested
that the 3rd respondent is receiving salary from M/s.Vani Fabrics Private Limited as
the Director of the Company. The Ledger produced by the 3rd respondent would
reveal that the 3rd respondent was receiving a sum of Rs.3,00,000/- per month as
remuneration from M/s.Vijayanth Developers Private Limited. RW1 admitted that
he has shown income from salaries as Rs.45,60,000/- in his Income Tax Returns
marked as Ex.R14 and that he has totally received a sum of Rs.35,60,000/- as salary
from M/s.Vijayanth Developers Private Limited as per Ex.R14. From the Income
Tax Returns submitted by the 3rd respondent, the fact that the 3rd respondent
has invested in diff erent partnership concerns is shown. Suppression of a sum of
Rs.36,00,000/- the 3rd respondent has received from the Company, M/s.Vijayanth
Developers Private Limited as Director of the Company, is reflected from
Ex.R9-Ledger produced by the 3rd respondent himself. Similarly, Ex.R14 surprisingly
reveal not only the salary income of the 3rd respondent as Director of M/s.Vijayanth
Developers Private Limited but also the income from various other sources. A sum of
Rs.24,00,000/- shown as the remuneration the 3rd respondent had received from
a partnership fi rm by name Jayam Vijayam Enterprises. RW1 during further cross
examination admitted that he had received a remuneration of Rs.24 lakhs from the
Firm Jayam Vijayam Enterprises. He admitted that in the Income Tax Returns, he
has shown a sum of Rs. 1,38,27,565/- as profi t towards his 50% share. He has also
admitted his capital in the said Firm as Rs.51,000/-. Similarly, the 3rd respondent
has shown receipt of a sum of Rs. 15,00,000/- by way of interest. During cross
examination of 3rd respondent, he admitted that he collected interest from one
Manivannan. He also admitted that he had given a sum of Rs.30,00,000/- to one
Manivannan during 2014-15 and he has shown the sum of Rs. 15,00,000/- as interest
for the said amount lent to him. Under the guise of explaining the consideration he
had received by transferring 15,000 shares to his own brother, the 3rd respondent
has recalled himself and marked several documents to show that he has suppressed
several income in his Form 26. The adjustment of a sum of Rs.24,00,000/- which is
by way of consideration for transfer of shares cannot be accepted. Learned senior
counsel for the 3rd respondent submitted that this Court should accept that the
3rd respondent established the fact that the consideration for transfer of 15,000
shares in M/s.Vani Fabrics Private Limited is accounted by Book transfer and hence,
the petitioner’s contention regarding non-disclosure of consideration received by
3rd respondent has to be rejected. Since this Court has already seen that the
amount disclosed by 3rd respondent as payable to his brother as per the affi davit in
Form-26 does not tally with the amount payable 3rd respondent to his brother as per
the Income Tax Returns of the 3rd respondent, the 3rd respondent’s case based on
additional documents cannot be accepted or believed. While examining the entries in
the Ledger along with the Income Tax Returns submitted by 3rd respondent as well
as his brother, this Court has to conclude that the 3rd respondent had suppressed
not only the asset to the extent of consideration the 3rd respondent had received
by transferring his 15,000 shares in M/s.Vani Fabrics Private Limited but also the
income he had received by way of salary from M/s.Vijayanth Developers Private
Limited, the salary from the partnership fi rm by name Jayam Vijayam Enterprises
and the interest he has earned by lending money. Even the amount that was lent
to a private individual to collect a huge amount of Rs. 15,00,000/- towards interest
is not disclosed. This is an asset. The profi t he has earned in the partnership ought
to have been shown as his income.
(45) Apart from the averments regarding suppression of assets in the form of
shares or by transfer of 15,000 equity shares in M/s.Vani Fabrics, learned counsel
for the petitioner tried to substantiate his case of suppression by referring to the
objections raised by 19th respondent and an NGO before the Returning Offi cer.
The document-Ex.C17, is the objection raised by an NGO under the name Arappor
lyakkam on the date of scrutiny i.e., on 27.03.2019. It was pointed out from the
affi davit in Form 26 that there is a discrepancy between the value of movable assets
shown by 3rd respondent and the total amount of movable assets disclosed in Form
26. It is rightly pointed out in the objection that the total assets disclosed by third
respondent in Form 26 is only to the tune of Rs.1,35,30,394/-. Since the candidate
has disclosed his total value of movable assets owned by him as Rs.4,16,27,224/-,
the disclosure as per affi davit is false.
(46) Another objection petition is fi led by 19th respondent on the date of
scrutiny which is also marked as Ex.R3 and Ex.C12. One of the objections raised is
regarding suppression of a liability of third respondent to the company to the tune of
Rs.65, 000/- and the suppression of assets of company M/s.Vijayanth Developers to the
tune of Rs.34,93,355/- and a sum of Rs.3,15,00,000/-. After scrutiny, 3rd respondent
sent an affi davit to the Returning Offi cer seeking an amendment to the Election Affi davit
to change the fi gure towards the amount payable to him by M/s.Vijayanth Developers
Private Limited as Rs.3,17,49,280/-. Surprisingly, the Returning Offi cer has forwarded
Exs.C12 and C17 dated 27.03.2019 to the 3rd respondent on 01.04.2019, three days
after scrutiny. The 3rd respondent appears to have sent a reply dated 05.04.2019
to the objection raised by 19th respondent, regarding the non-disclosure of a sum
of Rs.65, 000/- which was due from the 3rd respondent to the company, namely,
M/s.Vijayanth Developers. The 3rd respondent in his reply to the objection, marked as
Ex.C14, stated that the total loan amount due from the company to the 3rd respondent
is Rs.3,17,49,280/-. Along with reply, a letter obtained from his brother as Director
of M/s.Vijayanth Developers (P) Ltd., marked as Ex.C19 is also sent to Returning
Offi cer to show that the Company has acknowledged that a sum of Rs.3,17,49,380/-
is due to third respondent from the company. This fi gure of Rs.3,17,49,280/- is
supposed to be mentioned in the election affi davit in Form 26. As pointed out earlier,
an affi davit of the 3rd respondent dated 29.03.2019 is submitted to the Returning
Offi cer to amend the election affi davit with reference to Column No.5 in page No.7
of the affi davit in Form 26 fi led by 3rd respondent. The 3rd respondent has admitted
in the affi davit, that by mistake the loan given by 3rd respondent to M/s.Vijayanth
Developers, was mentioned as Rs.36,52,450/- instead of Rs.3,17,49,280/-. Therefore,
non-disclosure or false disclosure of assets in Election Affi davit in Form 26
is admitted by the 3rd respondent.
(47) However, the Returning Offi cer who has completed scrutiny on 27.03.2019
and accepted the nomination of 3rd respondent on 27.03.2019 sought for proof from
3rd respondent on 01.04.2019 and received reply and documents from 3rd respondent
after the scrutiny is over. This is a serious irregularity. The 3rd respondent has
disclosed his shareholding in M/s.Vijayanth Developers and the fact that a sum of
Rs.36,52,450/- is due to him from the said company as per the affi davit fi led by him.
An affi davit to amend the affi davit in Form 26 is submitted by the 3rd respondent
after scrutiny and acceptance of nomination by the Returning Offi cer on 27.03.2019
to the eff ect that the amount payable to him from M/s.Vijayanth Developers is not
Rs.36,58,450/- as mentioned in Form-26 but Rs.3,17,49,280/-.
(48) Section 36 of the Representation of People Act, 1951 reads as follows:-
36. Scrutiny of nominations.—
(1) On the date fi xed for the scrutiny of
nominations under section 30, the candidates, their
election agents, one proposer 4*** of each candidate,
and one other person duly authorised in writing by
each candidate, but no other person, may attend
at such time and place as the returning offi cer may
appoint; and the returning offi cer 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 offi cer 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, 5 [reject] any nomination on any of the
following grounds:— 6 [(a) 7 [that on the date fi xed
for the scrutiny of nominations the candidate] either
is not qualifi ed or is disqualifi ed for being chosen to
fi ll the seat under any of the following provisions that
may be applicable, namely:— Articles 84, 102, 173
and 191, 8*** 9 [Part II of this Act and sections 4 and
14 of the Government of Union Territories Act, 1963
(20 of 1963)] 10***; 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 11 [clause (b)
or clause (c)] of sub-section (2) shall be deemed to
authorise the 12[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 offi cer shall not reject
any nomination paper on the ground of any 1***
defect which is not of a substantial character.
(5) The returning offi cer 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 2 [an objection is raised by the
returning offi cer 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
fi xed for scrutiny, and the returning offi cer shall record
his decision on the date to which the proceedings
have been adjourned.
(6) The returning offi cer 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.
[(7) For the purposes of this section, a
certifi ed 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 disqualifi cation
mentioned in section 16 of the Representation of the
People Act, 1950 (43 of 1950).
(8) Immediately after all the nomination
papers have been scrutinised and decisions
accepting or rejecting the same have been recorded,
the returning offi cer shall prepare a list of validly
nominated candidates, that is to say, candidates
whose nominations have been found valid, and affi x
it to his notice board.]”
(49) Following the judgment of Hon’ble Supreme Court, the Election Commission
has issued revised instructions and the Returning Offi cer is required to follow the
instructions contained in the Handbook containing instructions. Clauses 6.6, 6.7,
6.10.1, 6.11.1 of Handbook for Returning Offi cer issued in February, 2019, relates
to scrutiny, are relevant and hence, they are extracted:
“6.6 OBJECTIONS AND SUMMARY INQUIRY REASONS
TO BE RECORDED IN EVERY CASE OF OBJECTION OR
REJECTION
6.6.1
Even if no objection has been raised with regard
to a nomination paper, Returning Offi cer has to satisfy himself/
herself that it is valid in law. If any objection is raised, Returning
Offi cer shall have to hold a summary inquiry to decide the same
and to treat the nomination paper to be either valid or invalid.
Returning Offi cer should record his/her decision in each case
giving briefl y the reasons where an objection has been raised
or why he/she rejects the nomination paper. Returning Offi cer’s
decision could be challenged later in an election petition and
hence the importance of recording a brief statement of reasons
at this time. If Returning Offi cer accepts the nomination paper of
a candidate overruling the objections raised by an objector, he
may be supplied with a certifi ed copy of his/her decision upon his
request.
6.6.2 ECI Instruction no.509/MISC/ECI/CIRCULAR/ FUNC/
JUD/RCC/2017, dated 13.02.2017 may be referred to in case of
objections against nomination under section 9A on the ground of
subsisting contract with Govt.
6.7 PRESUMPTION OF VALIDITY
6.7.1 There is a presumption that every nomination paper is
valid unless the contrary is prima facie obvious or has been made
out. In case of a doubt as to the validity of a nomination paper,
the benefi t of such doubt must go to the candidate concerned
and the nomination paper should be held to be valid. Remember
that whenever a candidate’s nomination paper is rejected without
proper reason that can be a reason to set aside the election in an
election petition. Returning Offi cer should adopt a comparatively
liberal approach in dealing with minor technical or clerical errors.
Sub-section (4) of Section 36 mandates that nomination paper
shall not be rejected on a ground or defect which is not substantial.
6.10.1 Returning Offi cer must reject a nomination paper, if
i)
the candidate is clearly not qualifi ed in law to be a
member of the Legislature concerned, or
ii)
the candidate is clearly disqualifi ed in law to be such
member, or [N.B. As regards the persons who have been
disqualifi ed under Sections 8A and 11A(b) (for corrupt practices)
and 10-A (for failure to lodge account of election expenses) of the
said Act, 1951, there would be a list of such disqualifi ed persons.
Returning Offi cer should obtain the list from CEO]. Complains
regarding other disqualifi cations, Returning Offi cer has to decide
based on summary inquiry.
iii) Requirements of Section 33 of R.P. Act, 1951 are
not fulfi lled.
iv) The prescribed affi davit has not been fi led at all by the
candidate, or [N.B. If the prescribed affi davit has been fi led but are
alleged or found to be defective or containing false information,
the nomination should NOT be rejected on this ground.]
v)
The nomination paper has not been signed by the
candidate and/or by the required number of his proposer(s), or
vi) The proper deposit has not been made in accordance
with Section 34, or
vii) The oath or affi rmation is not made by the candidate as
required under the Constitution of India, Government of Union
Territories Act, 1963 or the Government of National Capital
Territory of Delhi Act, 1991, as the case may be, or
viii) The candidate does not belong to the Scheduled Caste
or the Scheduled Tribe and he has fi led nomination paper to
contest a seat reserved for the Scheduled Castes or, as the case
may be, the Scheduled Tribes, or
ix) Where the candidate is not an elector of the constituency
for which he has fi led nomination paper and he has neither
fi led a copy of the electoral roll of the constituency in which he
is registered as an elector or of the relevant part thereof or a
certifi ed copy of the relevant entries relating to his name in such
electoral roll along with the nomination paper nor produced the
same at the time of scrutiny as required under Section 33(5) of
the said Act.
x)
Columns were left blank in the affi davit and fresh affi davit
not fi led in spite of notice.
Note on item (viii): In order to prevent non-SC/ST persons
contesting election from reserved constituencies, the Returning
Offi cers at the time of scrutiny of nominations should satisfy
themselves that the candidates contesting from reserved
constituencies belong to SC or ST, as the case may be. Wherever
in doubt, the Returning Offi cer must insist on production of
SC/ST certifi cate issued by competent authorities. Where,
however, the certifi cate produced by the candidate is also
challenged, the Returning Offi cer need not go into that question,
except where it is alleged that the certifi cate produced is forged or
is not issued by competent authority. In the case of any allegation/
suspicion about the genuineness of the certifi cate, the Returning
Offi cer should get the position crosschecked with the authority
which purportedly issued the SC/ST certifi cate in question, before
deciding the validity of the nomination paper of the candidate
concerned. If on suchcross-checking/ verifi cation, the Returning
Offi cer is satisfi ed that the certifi cate in question is not genuine,
he should not only reject the nomination of the candidate
concerned but should also initiate criminal proceeding against the
candidate for adducing forged documentary evidence before him.
(Instruction No. 4/3/2008/JS-II (Vol. III) dated 2.7.2008).
6.11.1 If a candidate to whose nomination paper an objection
has been taken applies for time to rebut such objection. Returning
Offi cer should adjourn the scrutiny of that candidate. The
adjourned cannot go beyond 11.00 a.m, on the second day after
the date fi xed for scrutiny. The scrutiny of all other nomination
papers must, of course, be completed on the day of scrutiny,
notwithstanding such adjournment in respect of one or more
nomination papers.”
(50) The enquiry before the Returning Offi cer is summary in nature. This
Court is unable to fi nd any clue from the reading of Section 36 of the Act, 1951,
to show that the Returning Offi cer is permitted to collect affi davits or documents
from contestants or third parties even after scrutiny of nomination. Admittedly, in this
case, as spoken by the Returning Offi cer, the nomination of 3rd respondent was
accepted by the Returning Offi cer on the date of scrutiny. On the date of scrutiny,
the objection raised by a third party “Arappor lyakkam” is a valid objection and the
non-disclosure/false disclosure is admitted by the 3rd respondent himself by submitting
an affi davit after scrutiny contrary to statutory provisions and the guidelines given
in Hand Book for Returning Offi cer. This only shows that the Returning Offi cer who
was supposed to consider the objection on the date of scrutiny of nomination, failed
to do that and has accepted the nomination without an explanation or correction.
However, in the course of argument, it was pointed out that the objection by the
stranger “Arappor lyakkam” was only sent on 27.03.2019 and it was not submitted
at the time of scrutiny. Even if no objection is received, the Returning Offi cer has
to satisfy himself that the nomination is valid. If an objection is received as per
clause 6.6.1, the Returning Offi cer has to hold a summary enquiry to decide the
same. Returning Offi cer should record his/her decision. As per instructions, the
Returning Offi cer can reject the nomination paper when columns are left blank in
the affi davit and fresh affi davit is not fi led in spite of notice. When no plausible
explanation is given by anyone present before the Returning Offi cer on the date of
scrutiny of nomination and the nondisclosure or mistake in the statutory affi davit in
Form 26 is admitted by the Returned Candidate and the non-disclosure is evident,
the Returning Offi cer has simply ignored the objection and accepted nomination
by recording acceptance on 27.03.2019. This is a serious irregularity. The 3rd
respondent has given a supporting affi davit on 29.03.2019. The Returning Offi cer
becomes functus offi cio offi cer after the scrutiny. Therefore, the document submitted
after scrutiny cannot be considered. Even before this Court, the 3rd respondent
has not produced any independent or acceptable document to show that a sum of
Rs.3,17,49,280/- is due from the company to him. No details or particulars as to how
this amount became due, is given anywhere in the pleading or during his evidence
as RW1.Therefore, this Court is of the view that the 3rd respondent has consciously
ignored vital informations required to explain the discrepancies even before this
Court. Unfortunately, the petitioner has not raised a ground in the petition pointing
out the discrepancy or the non-disclosure even while fi ling the statutory affi davit in
Form-26. When this was pointed out by Court, the 3rd respondent requested this
Court to give an opportunity to explain the discrepancy. In that process, the 3rd
respondent has now admitted suppressions to the eff ect that he has not disclosed
several assets and sources of his income as required in the format prescribed in
Form-26. Since a specifi c issue has been framed whether the Returning Offi cer
has conducted the election of Theni Parliamentary Constituency in an impartial
manner and in accordance with the provisions of the Conduct of Election Rules,
1961 and during the scrutiny of nominations under Section 36 of the RP Act, 1951,
this Court, from the facts as seen from the documents and evidence, fi nds that the
Returning Offi cer has not conducted the scrutiny of nominations strictly in terms of
Section 36 of the RP Act, 1951 and instructions given under the Hand Book. She
has shown her partisan attitude in favour of 3rd respondent at the time of scrutiny.
As a consequence, this Court holds that the nomination of 3rd respondent
has been improperly accepted by the Returning Offi cer.
(51) During argument, learned Senior counsel submitted that mentioning of
a sum of Rs.36,52,450/- instead of Rs.3,17,49,280/- is merely a clerical mistake
inadvertently by the steno. In any other case, this Court would have accepted this
explanation. In the process of explaining how a sum of Rs.3,17,49,280/- is due
from a Company, the Returned Candidate admitted his income and assets from
various sources which are not disclosed in the statutory affi davit in Form-26. In the
Election Affi davit format, specifi c instructions are given to specify every investments
separately. The Returned Candidate has mentioned only agriculture and business
as source of income. He has not disclosed his income by lending money and the
money lent for earning a sum of Rs.15,00,000/- by way of interest. He has not
disclosed his income by way of salary drawn by him as Director of a Company.
His capital in a Partnership Firm is not disclosed. His partnership business and
the profi t he has earned in the real estate business is not disclosed even though
he admits in his evidence when confronted with his documents. The right to know
about the candidate standing for election has been brought within the sweep of
Article 19(1)(a) by Hon’ble Supreme Court in Union of India vs. Association for
Democratic Reforms and others reported in (2002) 5 SCC 294. The amendment
in Representation of the People Act, 1951, introducing Section 33-B to nullify the
judgment of Hon’ble Supreme Court in Association for Democratic Reform’s case
was struck down by Hon’ble Supreme Court in People’s Union for Civil Liberties
vs. Union of India and another reported in (2003) 4 SCC 399, on the ground
that the legislature has no power to review the decision of Supreme Court. The
disclosure of information is to facilitate and augment the freedom of expression as
observed by Hon’ble Supreme Court in the later judgment. The right to know about
the contestant who is going to represent the people will not be eff ective unless the
information about the assets and liabilities from all sources is known to the electors.
Considering the purpose behind disclosure, the candidate is required to disclose
even the assets and liabilities of his spouse and dependents. The majority in the
latter judgment even made educational qualifi cation to be mandatorily disclosed.
(52) In Madiraju Venkata Ramana Raju vs. Peddireddigari
Ramachandra Reddy and others reported in (2018) 14 SCC /, the Hon’ble Supreme
Court had occasion to deal with an Appeal against the order of High Court allowing
the Application fi led in the Election Petition to strike out Para Nos. 2 to 9 & 11 of
the Election Petition on the ground that they are not supported by material facts and
to dismiss the Election Petition under Order VII Rule 11 of CPC for want of cause
of action. The Hon’ble Supreme Court, while setting aside the order of High Court,
observed that the reliefs claimed by the appellant (petitioner in Election Petition)
are founded on grounds inter alia related to Section 100(1)(d)(i) of Representation
of the People Act, 1951 and the question whether a particular fact is material or
not depends upon the special facts and circumstances of the case. As extracted
earlier, in Resurgence India’s case reported in (2014) 14 SCC 189, the Hon’ble
Supreme Court has held that it is the duty of the Returning Offi cer to check whether
the information required is fully furnished at the time of fi ling of affi davit with the
nomination paper and the nomination paper is liable to be rejected if a candidate
fails to fi ll the blanks even after reminder by Returning Offi cer.
(53) In this case, there is specifi c pleading regarding suppression of assets and
liabilities and improper acceptance of nomination by Returning Offi cer. In the reply
to the counter fi led by third respondent, the petitioner has specifi cally pleaded the
partisan attitude of Returning Offi cer accepting the nomination of third respondent.
The issues framed by this Court and the witnesses examined would amply show
that the parties have conducted the trial with the full understanding of the case. The
Returning Offi cer was examined as Court witness (C.W.3) and he marked Exs.C8 to
C18 relating to the scrutiny of nomination fi led by the third respondent. This Court
has already found that the statutory affi davit fi led by 3rd respondent is defective.
The affi davit fi led by 3rd respondent after the scrutiny cannot be read along with the
election affi davit in Form 26. The Returned Candidate has shown the value of his
movable assets at Rs.4,16,27,224/-. But, he has disclosed the movable assets to
the value of Rs.1,35,30,394/-. This false disclosure is explained by an affi davit which
cannot be accepted as it was not there when the 3rd respondent’s nomination was
accepted. An explanation that such huge discrepancy was a typographical mistake
cannot be readily accepted especially disclosure by over-valuing assets may be with
a purpose. The Returning Offi cer may accept the nomination even if it is defective.
However, such improper acceptance can be challenged in this election petition. In
the circumstances, the 3rd respondent at least owe a moral responsibility to this
Court explaining his non-disclosure. The document produced before the Returning
Offi cer is a letter by brother of 3rd respondent acknowledging the huge liability of
the Company M/s.Vijayanth Developers. The Balance Sheet / Financial Statement
of the Company as on 31.03.2018 shows only a short term borrowal of money to
the tune of Rs.65,000/- from the Company. This Court is unable to fi nd how the
3rd respondent could pump in such a huge money of more than Rs.3.17 Crores to
the Company which has admittedly borrowed a huge sum of Rs.10 Crores on the
collateral security given by 3rd respondent to the value of around Rs.6 Crores. If the
non-disclosure without an explanation or supporting document is condoned, that will
certainly go against the spirit in which the Hon’ble Supreme Court has laid principles
to save the democracy as part of basic structure of our Constitution.
(54) For all the reasons stated above, this Court holds that the affi davit fi led
under Rule 4[A] of the Conduct of Election Rules, 1961, has not been validly
made, Further this Court holds that the Returned Candidate has suppressed
his assets equivalent to the value of 15,000 equity shares in M/s.Vani Fabrics
Private Limited allegedly transferred by the Returned Candidate in favour of his
brother and other assets and sources of income as admitted by him. Further,
the 3rd respondent has given a false information in the Election Affi davit fi led
under Rule 4[A] of the Conduct of Election Rules, 1961. As regards Additional
Issue No.3, this Court conclude that the Returning Offi cer has not conducted
the summary enquiry during scrutiny of nomination in the manner as expected
by Returning Offi cer in accordance with law as explained.
(55) Though the petitioner has, in his reply affi davit, has also referred to a
mortgage of the property of 3rd respondent in relation to a loan obtained by the
Company M/s.Vijayanth Developers Private Limited, the liability of a Company is not
a liability of the individual. The statutory affi davit fi led by the Returned Candidate
refers to the loan borrowed to by the Returned Candidate himself from the City
Union Bank, Mandaveli Branch. The objection of the petitioner is that the 3rd
respondent has suppressed the mortgage of his property for the loan advanced to
the Company to the tune of Rs.10 Crores. It is also alleged that the property off ered
by the 3rd respondent as collateral, has been undervalued. This Court is unable to
accept the case of the petitioner that there is suppression of an asset or liability of
the 3rd respondent by showing that the Company in which the 3rd respondent is
a shareholder, has borrowed money by mortgaging his personal property. It is not
shown that the 3rd respondent has given personal guarantee so that the Bank may
proceed against the 3rd respondent for the liability of the Company. A Company is
diff erent from a shareholder or a Director of a Company. The mortgage created by
the 3rd respondent may be an encumbrance over the property owned by the returned
candidate. This Court is unable to accept the liability of M/s.Vijayanth Developers as
the liability of 3rd respondent. The 3rd respondent has disclosed the mortgage in
favour of the Bank in respect of the property owned by him. Therefore, this Court
is unable to accept the case of the petitioner in relation of the mortgage and liability
of the Company M/s.Vijayanth Developers Private Limited.
ISSUE NO [2] AND ADDITIONAL ISSUE NO[2]:- CORRUPT PRACTICES:-
(56) Though several allegations relating to corrupt practices were made in the
election petition, the petitioner in the course of trial has confi ned to the corrupt
practices alleged by him with reference to the video clipping that was spread through
Whatsapp and YouTube. The petitioner has not produced any independent witness
to prove corrupt practices as seen through the video. However, a Compact Disc
with the video clipping that got spread in the social platform, is produced before this
Court. This Court has seen the video with audio. On seeing the video, the case of
the petitioner as seen in the election petition involving a lady by name Mrs.Saveetha
Arunprasad, is true. As against the specifi c allegations that the 3rd respondent
through his associates started bribing the electors and about the registration of an
FIR against the said Saveetha Arunprasad for distribution of money to voters, the
3rd respondent in his counter, has stated that mere association of Mrs.Saveetha
Arunprasad with his father or himself, will not lead to an inference that corrupt
practices were indulged with the consent of the 3rd respondent.
(57) The learned counsel for the petitioner submitted that the association, as
stated by the petitioner in the election petition, would only mean that persons have
joined together with a common object. In other words, the learned counsel, in his
written argument, referring to the dictionary meaning of the word “association”, has
submitted that the phrase used by the petitioner plays a signifi cant role as the 3rd
respondent has categorically admitted that Mrs.Saveetha Arunprasad as his associate.
Since the word “association” was used by the petitioner, that the 3rd respondent had
acted in association with Mrs.Saveetha Arunprasad and others, the argument is that
it should be understood that a specifi c allegation is made to the eff ect that the 3rd
respondent bribed electors through his associates with his consent and therefore,
the admission of association of Mrs.Saveetha Arunprasad by 3rd respondent should
be understood that the associates of 3rd respondent were acting with the consent
of 3rd respondent without any ambiguity to bribe electors for the purpose of 3rd
respondent’s win. This argument which is based on assumption with confused jargon,
cannot be appreciated in an election petition.
(58) The learned counsel for the petitioner pointed out that the 3rd respondent
has not let in any evidence to show that Mrs.Saveetha Arunprasad is not an agent
appointed by him or by his Chief Agent. The petitioner, during his examination, has
specifi cally stated that the 3rd respondent’s associates distributed money to voters.
The petitioner has also fi led a copy of the FIR in crime No.215/2019 in relation
to the incident as seen from the Video Compact Disc containing the video of the
episode pleaded by the petitioner. On seeing the VCD marked as Ex.P9, this Court
is of the view that the voters were given money to vote for ‘two leaves’ symbol.
The fact that contents of VCD has spread through social media, is not disputed by
the 3rd respondent. The involvement of Mrs.Saveetha Arunprasad in the distribution
of money among voters in the Theni Parliamentary Constituency may also be true.
(59) The 3rd respondent has admitted during his cross examination that Mrs.
Saveetha Arunprasad is seen with 3rd respondent in a few photographs. The 3rd
respondent admitted that Mrs.Saveetha Arunprasad is an active member of AIADMK
party and holding currently the post of Chairperson of Melachokkanathapuram.
CW4, who registered the FIR in crime No.215/2019 in Ex.P7 in connection with the
incident, has given evidence regarding the FIR. The original of the FIR has been
fi led before the Judicial Magistrate, Bodinaickenoor. He acknowledged the receipt
of written complaint in respect of FIR and spoken about the receipt of VCD along
with the written complaint. He has admitted that the video which was given along
with complaint, was produced as evidence before the Judicial Magistrate, Bodi. He
also admitted the fact that he arrested Mrs.Saveetha Arunprasad who is the fi rst
accused in Crime No.215/2019. He also admitted about the Final Report fi led by
him. However, during cross examination by the 3rd respondent, CW4 admitted that
he did not know about the person who shot the video and that he was informed by
the Village Administrative Offi cer that he got the video through Whatsapp. This Court
is unable to fi nd much discrepancy in the evidence of CW4 during cross examination
and his evidence of course, reveals only the fact that there was a complaint about
corrupt practices and the video circulated through social media is produced before
the Court and the criminal case is pending trial.
(60) The 3rd respondent admitted that the father of Mrs.Saveetha Arunprasad is
holding the position in the party and Mrs.Saveetha Arunprasad was the Chairperson
of Melachokkanathapuram Town Panchayat between 2011- 2016. When a specifi c
question was put to 3rd respondent, whether Mrs.Saveetha Arunprasad is a polling
agent for Bodinaickenoor segment, the 3rd respondent has stated “I do not know”.
The relevant questions and answers are extracted below for convenience:-
Q: Are you aware that each candidate can appoint two
polling agents for each polling station of the Constituency?
A: Yes.
Q: Is it correct to state that Bodi segment had 298 polling
stations in Theni Parliamentary Constituency?
A : I do not know the exact number.
Q: I put it to you that your chief election agent appointed
Savitha as your polling agent for Bodi segment.
A: I do not know.
Q: Are you aware that a candidate can appoint 14 EVM
counting agents and 2 postal ballot counting agents at the
counting centre on the day of counting?
A: I do not remember what was the procedure during the
2019 elections.
Q: Who had appointed the aforesaid counting agents on
the counting day for you?
A: I have to ask my chief election agent.
(61) It is true that the 3rd respondent was evasive. However, the petitioner
has nowhere in the petition or evidence stated that Mrs.Saveetha Arunprasad was
an agent of 3rd respondent either appointed by the 3rd respondent or by his chief
agent. However, it is stated in the petition that Mrs.Saveetha Arunprasad was bribing
electors with the consent of 3rd respondent and his election agents.
(62) Section 123 of the Representation of People Act, 1951, reads as follows:-
123. Corrupt practices.— The following shall be deemed to
be corrupt practices for the purposes of this Act:—
(1) “Bribery” that is to say— (A) any gift, off er or promise by
a candidate or his agent or by any other person with the consent of
a candidate or his election agent of any gratifi cation, to any person
whomsoever, with the object, directly or indirectly of inducing—
(a) a person to stand or not to stand as, or [to withdraw or not to
withdraw] from being a candidate at an election, or (b) an elector to
vote or refrain from voting at an election, or as a reward to— (i) a
person for having so stood or not stood, or for 5 [having withdrawn
or not having withdrawn] his candidature; or (ii) an elector for having
voted or refrained from voting;
(B) the receipt of or agreement to receive, any gratifi cation,
whether as a motive or a reward— (a) by a person for standing
or not standing as, or for 6 [withdrawing or not withdrawing] from
being, a candidate; or (b) by any person whomsoever for himself
or any other person for voting or refraining from voting, or inducing
or attempting to induce any elector to vote or refrain from voting, or
any candidate 3 [to withdraw or not to withdraw] his candidature.
Explanation.—For the purposes of this clause the term
“gratifi cation” is not restricted to pecuniary gratifi cations or
gratifi cations estimable in money and it includes all forms of
entertainment and all forms of employment for reward but it does
not include the payment of any expenses bona fi de incurred at, or
for the purpose of, any election and duly entered in the account of
election expenses referred to in section 78.]
(2) Undue infl uence, that is to say, any direct or indirect
interference or attempt to interfere on the part of the candidate or
his agent, or of any other person 7 [with the consent of the candidate
or his election agent], with the free exercise of any electoral right:
Provided that—(a) without prejudice to the generality of the
provisions of this clause any such person as is referred to therein
who—(i) thereatens any candidate or any elector, or any person
in whom a candidate or an elector is interested, with injury of any
kind including social ostracism and ex-communication or expulsion
from any caste or community; or (ii) induces or attempts to induce
a candidate or an elector to believe that he, or any person in whom
he is interested, will become or will be rendered an object of divine
displeasure or spiritual censure, shall be deemed to interfere
with the free exercise of the electoral right of such candidate or
elector within the meaning of this clause; (b) a declaration of public
policy, or a promise of public action, or the mere exercise of a legal
right without intent to interfere with an electoral right, shall not be
deemed to be interference within the meaning of this clause 1[(3).
The appeal by a candidate or his agent or by any other person
with the consent of a candidate or his election agent to vote or
refrain from voting for any person on the ground of his religion,
race, caste, community or language or the use of, or appeal to
religious symbols or the use of or appeal to, national symbols, such
as the national fl ag or the national emblem, for the furtherance of
the prospects of the election of that candidate or for prejudicially
aff ecting the election of any candidate:
2 [Provided that no symbol allotted under this Act to a candidate
shall be deemed to be a religious symbol or a national symbol for
the purposes of this clause (3A).] The promotion of, or attempt to
promote, feelings of enmity or hatred between diff erent classes of
the citizens of India on grounds of religion, race, caste, community,
or language, by a candidate or his agent or any other person with
the consent of a candidate or his election agent for the furtherance
of the prospects of the election of that candidate or for prejudicially
aff ecting the election of any candidate.] 3 [(3B) The propagation
of the practice or the commission of sati or its glorifi cation by a
candidate or his agent or any other person with the consent of the
candidate or his election agent for the furtherance of the prospects
of the election of that candidate or for prejudicially aff ecting the
election of any candidate. Explanation.—For the purposes of this
clause, “sati” and “glorifi cation” in relation to sati shall have the
meanings respectively assigned to them in the Commission of Sati
(Prevention) Act, 1987 (3 of 1988)].
(4) The publication by a candidate or his agent or by any
other person with the consent of a candidate or his election
agent, of any statement of fact which is false, and which he either
believes to be false or does not believe to be true, in relation to the
personal character or conduct of any candidate or in relation to the
candidature, or withdrawal, of any candidate, being a statement
reasonably calculated to prejudice the prospects of that candidate’s
election.
(5) The hiring or procuring, whether on payment or otherwise,
of any vehicle or vessle by a candidate or his agent or by any other
person 4 [with the consent of a candidate or his election agent] 6
[or the use of such vehicle or vessel for the free conveyance] of any
elector (other than the candidate himself the members of his family
or his agent) to or from any polling station provided under section
25 or a place fi xed under sub-section (1) of section 29 for the poll:
Provided that the hiring of a vehicle or vessel by an elector or by
several electors at their joint costs for the purpose of conveying him
or them to and from any such polling station or place fi xed for the
poll shall not be deemed to be a corrupt practice under this clause
if the vehicle or vessel so hired is a vehicle or vessel not propelled
by mechanical power: Provided further that the use of any public
transport vehicle or vessel or any tramcar or railway carriage by
any elector at his own cost for the purpose of going to or coming
from any such polling station or place fi xed for the poll shall not be
deemed to be a corrupt practice under this clause. Explanation.—
In this clause, the expression “vehicle” means any vehicle used or
capable of being used for the purpose of road transport, whether
propelled by mechanical power or otherwise and whether used for
drawing other vehicles or otherwise.
(6) The incurring or authorising of expenditure in contravention
of section 77.
(7) The obtaining or procuring or a betting or attempting
to obtain or procure by a candidate or his agent or, by any other
person 1 [with the consent of a candidate or his election agent],
any assistance (other than the giving of vote) for the furtherance
of the prospects of that candidate’s election, 2 [from any person
whether or not in the service of the Government] and belonging
to any of the following classes, namely:— (a) gazetted offi cers;
(b) stipendiary judges and magistrates; (c) members of the
armed forces of the Union; (d) members of the police forces;
(e) excise offi cers; 3 [(f) revenue offi cers other than village revenue
offi cers known as lambardars malguzars, patels, deshmukhs or by
any other name, whose duty is to collect land revenue and who are
remunerated by a share of, or commission on, the amount of land
revenue collected by them but who do not discharge any police
functions; and (g) such other class of persons in the service of the
Government as may be prescribed: 4 [Provided that where any
person, in the service of the Government and belonging to any of
the classes aforesaid, in the discharge or puported discharge of his
offi cial duty, makes any arrangements or provides any facilities or
does any other act or thing, for, to, or in relation to, any candidate
or his agent or any other person acting with the consent of the
candidate or his election agent (whether by reason of the offi ce
held by the candidate or for any other reason), such arrangements
facilities or act or thing shall not be deemed to be assistance for the
furtherance of the prospects of that candidate’s election;]
5 [(h) class of persons in the service of a local authority, university,
government company or institution or concern or undertaking
appointed or deputed by the Election Commission in connection
with the conduct of elections.] 6 [(8) Booth capturing by a candidate
or his agent or other person.] Explanation. —(1) In this section the
expression “agent” includes an election agent, a polling agent and
any person who is held to have acted as an agent in connection with
the election with the consent of the candidate. (2) For the purposes
of clause (7), a person shall be deemed to assist in the furtherance
of the prospects of a candidate’s election if he acts as an election
agent 7*** of that candidate. 8 [(3) For the proposes of clause (7),
notwithstanding anything contained in any other law, the publication
in the Offi cial Gazette of the appointment, resignation, termination
of service, dismissal or removal from service of a person in the
service of the Central Government (including a person serving in
connection with the administration of a Union territory) or of a State
Government shall be conclusive proof— (i) of such appointment,
resignation, termination of service, dismissal or removal from
service, as the case may be, and (ii) where the date of taking eff ect
of such appointment, resignation, termination of service, dismissal
or removal from service, as the case may be, is stated in such
publication, also of the fact that such person was appointed with
eff ect from the said date, or in the case of resignation, termination
of service, dismissal or removal from service such person ceased
to be in such service with eff ect from the said date.
(63) To attract section 123 of the Act, one should establish bribery by any gift,
off er or promise, by a candidate or his agent or by any person with the consent of
the candidate or his election agent of any gratifi cation to any person whomsoever,
with the object, directly or indirectly of inducing a person to stand or not to stand
as from being a candidate at an election, or an elector to vote or refrain from voting
at an election, or as a reward to a person for having so stood or not stood, his
candidature; or an elector for having voted or refrained from voting.
(64) The petitioner is not serious in pressing his vague allegation regarding
undue infl uence. The petitioner who has alleged bribery by distributing money or gift
to electors, has to establish that the gift or off er or promise is by the candidate or
his agent or by any person with the consent of the candidate or his election agent.
In this case, there is no direct proof that Mrs.Saveetha Arunprasad is the agent of
3rd respondent or she was doing with the consent of 3rd respondent or his election
agent. The petitioner himself in his evidence has stated that he did not know whether
Mrs.Saveetha Arunprasad is an agent of 3rd respondent. In such circumstances,
though the petitioner’s case that there was bribery by a lady, it was not established
with positive evidence that a lady by name Mrs.Saveetha Arunprasad has indulged
in bribing the electors/voters either as an agent appointed by 3rd respondent or his
chief agent or acted with the consent of 3rd respondent. Therefore, this Court is
unable to hold that the petitioner has established corrupt practices as defi ned under
section 123 of the RP Act, 1951.
ISSUE NO [3]:-
(65) The petitioner has raised a specifi c plea that Court should declare the
election of 3rd respondent as void on the ground of improper acceptance of
nomination of 3rd respondent.
(66) Section 100 of the RP Act, 1951, reads as follows:-
100. Grounds for declaring election to be void.—
[(1) Subject to the provisions of sub-section (2) if the High
court is of opinion—
(a) that on the date of his election a returned
candidate was not qualifi ed, or was disqualifi ed, to be
chosen to fi ll the seat under the Constitution or this Act
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
aff ected—
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of
the returned candidate by an agent other than his election
agent, or
(iii) by the improper reception, refusal or 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 the High Court, a returned
candidate has been guilty by an agent, other than his
election agent, of any corrupt practice hut the High Court
is satisfi ed—
(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 without the consent, of the candidate or his
election agent;
(b) [Omitted]
(c) that the candidate and his election agent took
all reasonable means for preventing the commission of
corrupt practices at the election; and
(d) that in all other respects the election was free
from any corrupt practice on the part of the candidate or
any of his agents,
then the High Court may decide that the election of the
returned candidate is not void.
(67) The learned Senior counsel appearing for the 3rd respondent argued that
the suppression has not materially aff ected the result of the election. Pointing out
that the 3rd respondent has won the election with huge margin of 76,000 votes, he
submitted that the election of 3rd respondent in this case, cannot be declared as
void on the ground of suppression. The Hon’ble Supreme Court, in the case of Sri
Meirembam Prithiviraj @ Prithviraj Singh Vs. Pukhrem Sharatchandra Singh
reported in 2017 [2] SCC 487, has rejected the contention of the returned candidate
that under Section 100[1][d] of the RP Act,1951, that there must be proof that the
result of the election was materially aff ected by improper acceptance of nomination.
Suppression is proved. As a consequence, this Court holds that nomination of the
returned candidate had been improperly accepted. In view of the conclusions reached
above on all issues, this Court has to allow the election petition and declare the
election of the 3rd respondent / returned candidate as void.
(68) In the result, the Election Petition in ELP.No.4/2019 is allowed and the
election of 3rd respondent / Returned Candidate on 23.05.2019 from No.33,
Theni Parliamentary Constituency is declared as null and void. No costs.
6.07.2023
AP
Internet: Yes
Index: Yes / No
Witnesses examined on the side of Petitioner:-
PW1
- Mr. P. Milany
PW2
- Mr. Thanga Tamilselvan
List of Exhibits marked on the side of the Petitioner:-
1.
Ex.P1
Extract of the Electoral Roll of Theni Parliamentary Constituency
2.
Ex.P2
Certifi cate u/s. 65-B pertaining to Ex.P1
3.
Ex.P3
Election Affi davit under Form-26
4.
Ex.P4
Certifi cate u/s. 65-B pertaining to Ex.P3
5.
Ex.P5
Board's Report along with Audited Balance Sheet
6.
Ex.P6
Certifi cate u/s. 65-B pertaining to Ex.P5
7.
Ex.P7
Photocopy of FIR in Cr.No.215/2019
8.
Ex.P8
Certifi cate u/s. 65-B pertaining to Ex.P7
9.
Ex.P9
Video Compact Disc
10.
Ex.P10
Certifi cate u/s. 65-B pertaining to Ex.P9
11.
Ex.P11
Photocopy of the Voters' List of Part 113 of Bodi Assembly
Segment
12.
Ex.P12
Certifi cate u/s. 65-B pertaining to Ex.P11
13.
Ex.P13
Photos [4 Nos]
14.
Ex.P14
Certifi cate u/s. 65-B pertaining to Ex.P14
15.
Ex.P15
Computer generated copy of the Sanction Letter dated
11.02.2019
16.
Ex.P16
Certifi cate u/s. 65-B pertaining to Ex.P15
17.
Ex.P17
Computer generated copy of the Company Master Data of
Vijayanth Developers Pvt. Ltd
18.
Ex.P18
Certifi cate u/s. 65-B pertaining to Ex.P17
19.
Ex.P19
Computer generated copy of Certifi cate of Registration of
Charge dated 20.03.2019
20.
Ex.P20
Certifi cate u/s. 65-B pertaining to Ex.P19
21.
Ex.P21
Computer generated copy of the Memorandum of Extension of
Equitable Mortgage by way of deposit of title deeds.
22.
Ex.P22
Certifi cate u/s. 65-B pertaining to Ex.P21
Witnesses examined on the side of Petitioner:-
RW1 -
Mr. P. Ravindhranath
List of Exhibits marked on the side of the Respondents:-
1.
Ex.R1
Print out of the Facebook Post dated 12.09.2019
2.
Ex.R2
Press Report
3.
Ex.R3
Return Objection of RW1
4.
Ex.R4
Downloaded copy of E-mail along with attachments
5.
Ex.R5
65-B Certifi cate
6.
Ex.R6
65-B Certifi cate issued by RW1's Advocate
7.
Ex.R7
Downloaded copy of Ledger Account of M/s.Vijayanth
Developers Pvt.Ltd for the period from 01.04.2017 to
21.03.2019
8.
Ex.R8
65-B Certifi cate issued by RWl's Chartered Accountant
9.
Ex.R9
Photocopy of the Share Transfer Form
10.
Ex.R10
Downloaded copy of the Ledge Account
11.
Ex.R11
65-B Certifi cate issued by RW1’s Chartered Accountant
12.
Ex.R12
Downloaded copy of the Ledger Account
13.
Ex.R13
65-B Certifi cate issued by RW1's Auditor
14.
Ex.R14
Photocopy
of
RW1’s
Income
Tax
Returns
for
the
AY 2019-20
15.
Ex.R15
Photocopy of RW1's brother's Income Tax Returns for the
AY 2019-20
16.
Ex.R16
Photocopy of RW1's Bank Statement for the period between
01.01.2016 and 31.03.2016.
Witnesses examined on the side of Court-
CW1
-
Mr. Joseph Jackson K.G.
CW2
-
Mr. C.S. Govindarajan
CW3
-
Mrs. Mariam Pallavi Baldev
CW4
-
Mr. P. Selvaraj
List of Exhibits marked on the side of the Court Witnesses:-
1.
Ex.C1
-
E-Form CHG1 regarding Registration of Charge fi led by
Vijayanth Developers Pvt. Ltd.
2.
Ex.C2
-
Certifi cate generated at the time of Registration of Charge
dated 20.03.2019
3.
Ex.C3
-
Master Data of Vijayanth Developers Private Limited
4.
Ex.C4
-
E-Form No. AOC-4 Form for fi ling Financial Statements &
other documents with ROC for the FY 2017-2018
5.
Ex.C5
-
E-Form No. MGT-7 Annual Return for the FY 2017-2018 in
respect of M/s.Vani Fabrics Pvt Ltd.
6.
Ex.C6
-
Form No. DIR-12 of Vani Fabrics Private Limited
7.
Ex.C7
-
Form No. MGT-7 of Vani Fabrics Private Limited
8.
Ex.C8
-
Nomination Form under Form-26 along with documents and
the proceedings relating to scrutiny
9.
Ex.C9
-
Original Election Nomination in Form-2A of Returned
Candidate with the endorsement of the Returning Offi cer
10.
Ex.C10
-
Original Form-26 of the Returned Candidate
11.
Ex.C11
-
Original Receipt of Notice to appear for allocation of election
symbols with the acknowledgment of the Returned Candidate
12.
Ex.C12
-
Original Objection Petition fi led by PW2 along with documents
13.
Ex.C13
-
Entire scrutiny proceedings
14.
Ex.C14
-
Reply of RWl on 05.04.2019
15.
Ex.C15
-
Supplementary Affi davit dated 29.03.2019
16.
Ex.C16
-
Endorsement of CW3
17.
Ex.C17
-
Objections of Arappor Iyyakkam dated 27.03.2019
18.
Ex.C18
-
Notice dated 01.04.2019 issued by CW3
19.
Ex.C19
-
Certifi cation regarding Confi rmation of Balance issued by
Mr. V.P. Jaya Pradeep
20.
Ex.C20
-
FIR dated 15.04.2019
21.
Ex.C21
-
Photocopy of the complaint
22.
Ex.C22
-
Photocopy of CSR Receipt
23.
Ex.C23
-
Copy of Final Report dated 20.04.2019
24.
Ex.C24
-
Certifi ed copy of Final Report fi led on 31.03.2022
25.
Ex.C25
-
Certifi ed copy of 161 statements of the witnesses
[series 5 Nos.]
06.07.2023
S.S. SUNDAR, J..
AP
Order in
ELP.No.4/2019
06.07.2023
ELP.No.4/2019
S.S. SUNDAR, J.,
After pronouncement of the order today [06.07.2023], learned Senior counsel
appearing for the 3rd respondent has made a request that this Court may stay the
operation of the order for a limited period of thirty days. He has also convinced this
Court that this is a case in which this Court should exercise its discretion granting stay
of operation of order before expiry of the time allowed for appealing.
2. The Court heard the submissions of Mr. V. Arun, learned counsel for the
election petitioner.
3. This Court is inclined to pass the following order:-
“The order pronounced by this Court today [06.07.2023], shall not be in
operation for a period of thirty days from today.”
06.07.2023
AP
Internet: Yes
(By Order)
Mඉඔඉඡ Mඉඔඔඑඋඓ,
Principal Secretary,
Election Commission of India.
Secretariat,
SATYABRATA SAHOO,
Chennai-600 009,
Chief Electoral Offi cer and
25th August, 2023.
Principal Secretary to Government,
Public (Elections) Department.
PRINTED AND PUBLISHED BY THE DIRECTOR OF STATIONERY AND
PRINTING, CHENNAI ON BEHALF OF THE GOVERNMENT OF TAMIL NADU