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ELECTION PETITION FILED BY VOTER – IMPROPER ACCEPTANCE OF NOMINATION DESPITE OF SUPPRESSION OF MATERIAL FACTS – HIS ELECTION IS VOID- HIGH COURT ALLOWED THE SAME AND SET ASIDE THE ELECTION OF RETURNED CANDIDATE – APEX COURT HELD THAT Once it is found that it was a case of improper acceptance, as there was misinformation or suppression of material information, one can state that question of rejection in such a case was only deferred to a later date. When the Court gives such a finding, which would have resulted in rejection, the effect would be same, namely, such a candidate was not entitled to contest and the election is void. Otherwise, it would be an anomalous situation that even when criminal proceedings under Section 125A 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. The upshot of the aforesaid discussion would be to hold that the present appeal is totally devoid of any merits and is, accordingly, dismissed.= KISAN SHANKAR KATHORE |…..APPELLANT(S) | | | | |VERSUS | | |ARUN DATTATRAY SAWANT & ORS. |…..RESPONDENT(S) | = 2014 (May. Part ) http://judis.nic.in/supremecourt/filename=41540

ELECTION PETITION FILED BY VOTER – IMPROPER ACCEPTANCE OF NOMINATION DESPITE OF SUPPRESSION OF MATERIAL FACTS – HIS ELECTION IS VOID- HIGH COURT ALLOWED THE SAME AND  SET ASIDE THE ELECTION OF RETURNED CANDIDATE – APEX COURT HELD THAT  Once it is found  that  it  was  a  case  of  improper acceptance, as there was misinformation or suppression of  material information, one can state that question of  rejection  in  such  a  case was only deferred to a later date.  When the Court gives  such a finding, which would have resulted in rejection, the effect would be same, namely, such a candidate was not entitled to  contest  and the  election  is  void.   Otherwise,  it  would  be  an  anomalous situation that even when criminal proceedings under Section 125A 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. The upshot of the aforesaid discussion  would  be  to  hold  that  the  present appeal is totally devoid of any merits and is, accordingly,  dismissed.=

 

 

The election petition was filed under Section  100(1)(d)(i)  and  (iv)

         of the Act on the ground that in the nomination form filled  in  by

         the appellant he had suppressed his dues payable to the Government,

         suppressed the  assets  of  his  spouse  and  also  suppressed  the

         information and assets of a partnership  firm  of  which  he  is  a

         partner.  

The appellant contested the said petition.  

Evidence  was

         led.  

After hearing the arguments, the High Court  passed  judgment

         dated August 16, 2007 accepting the plea of  the  first  respondent

         that the nomination form of the appellant was defective and  should

         not have been accepted  by  the  Returning  Officer.   

Thus,  while

         allowing the election petition and setting aside of the election of

         the appellant,  the  High  Court  recorded  the  non-disclosure  on

         following counts:

                  a) Non-disclosure of dues to Maharashtra State Electricity

                  Board in respect of two service connections  held  by  him

                  amounting to Rs.79,200/- and Rs.66,250/-.

 

 

                  b)  The appellant failed  to  disclose  the  ownership  of

                  Bungalow No. 866 and the taxes dues thereof  amounting  to

                  Rs.3,445/- owned by his wife.

 

 

                  c)  The appellant failed to disclose  the  particulars  of

                  the vehicle MH-05-AC-55 owned by the wife.

 

 

               d) The appellant is  guilty  of  non-disclosure  of  property

                  owned by firm Padmavati Developers of which the  appellant

                  is a partner, which owns two plots of lands measuring 1313

                  sq.mtrs. and 1292 sq.mts. in Survey No. 48, Hissa No. 9 of

                  Mouze   Kalyan,   Taluka   Ambarnath,   District    Thane,

                  Maharashtra.

 

 

                 Challenging the impugned judgment,  the  present  statutory

         appeal is filed, as provided under Section 116A of the Act.=

 

 

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

         qualifications and assets held by the  candidate,  his  spouse  and

         dependent children.  It is on that basis  that  not  only  Election

         Commission has issued guidelines,  but  also  prepared  formats  in

         which the affidavits are to be filed.  

As a fortiorari, 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.

When the information is given by a candidate in  the  affidavit  filed

         along with the nomination paper and objections are  raised  thereto

         questioning the correctness of the  information  or  alleging  that

         there is non-disclosure of certain important  information, 

 it  may

         not be possible for the returning officer at that time to conduct a

         detailed examination.  

Summary enquiry may  not  suffice.   

Present

         case is itself an example which loudly demonstrates this.   At  the

         same time, it would not be possible for the  Returning  Officer  to

         reject  the  nomination  for  want  of   verification   about   the

         allegations made by the objector.  

In such a case, when  ultimately

         it is proved that it was a case of non-disclosure  and  either  the

         affidavit was false or it  did  not  contain  complete  information

         leading to suppression, it can be  held  at  that  stage  that  the

         nomination was improperly accepted.  

Ms. Meenakshi  Arora,  learned

         senior counsel appearing for the Election Commission, right  argued

         that such an  enquiry  can  be  only  at  a  later  stage  and  the

         appropriate stage would be  in  an  election  petition  as  in  the

         instant case, when the election is challenged.  

The grounds  stated

         in Section 36(2) are those which can be examined there and then and

         on that basis the Returning Officer  would  be  in  a  position  to

         reject the nomination.  

Likewise, where the blanks are left  in  an

         affidavit, nomination can be rejected there  and  then.   In  other

         cases where detailed enquiry is needed, it would  depend  upon  the

         outcome thereof,  in  an  election  petition,  as  to  whether  the

         nomination was properly accepted or  it  was  a  case  of  improper

         acceptance.  

Once it is found  that  it  was  a  case  of  improper

         acceptance, as there was misinformation or suppression of  material

         information, one can state that question of  rejection  in  such  a

         case was only deferred to a later date.  

When the Court gives  such

         a finding, which would have resulted in rejection, the effect would

         be same, namely, such a candidate was not entitled to  contest  and

         the  election  is  void.   

Otherwise,  it  would  be  an  anomalous

         situation that even when criminal proceedings under Section 125A 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.

 

39.   The upshot of the aforesaid discussion  would  be  to  hold  that  the

         present appeal is totally devoid of any merits and is, accordingly,

         dismissed.

 2014 (May. Part ) http://judis.nic.in/supremecourt/filename=41540
 

        SURINDER SINGH NIJJAR, A.K. SIKRI

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4261 OF 2007
|KISAN SHANKAR KATHORE |…..APPELLANT(S) |
| | |
|VERSUS | |
|ARUN DATTATRAY SAWANT & ORS. |…..RESPONDENT(S) |

 

J U D G M E N T

A.K. SIKRI, J.

The appellant herein was the successful candidate in the
election of legislative assembly, which he contested from 56,
Ambernath Constituency, Thane District, Maharashtra. There were
five candidates in the fray for which the elections were held on
October 13, 2004 and the results were declared on October 16, 2004.
After he was declared elected, his election was challenged by the
first respondent, who is a voter in the said constituency. He
filed the election petition in the High Court of Judicature at
Bombay stating that the appellant’s nomination had been improperly
accepted by the Returning Officer and the election was void due to
non-compliance of the provisions of the Constitution of India, the
Representation of the People Act, 1951 (hereinafter referred to as
‘the Act’) as well as Rules and Orders framed under the said Act.

2. The election petition was filed under Section 100(1)(d)(i) and (iv)
of the Act on the ground that in the nomination form filled in by
the appellant he had suppressed his dues payable to the Government,
suppressed the assets of his spouse and also suppressed the
information and assets of a partnership firm of which he is a
partner. The appellant contested the said petition. Evidence was
led. After hearing the arguments, the High Court passed judgment
dated August 16, 2007 accepting the plea of the first respondent
that the nomination form of the appellant was defective and should
not have been accepted by the Returning Officer. Thus, while
allowing the election petition and setting aside of the election of
the appellant, the High Court recorded the non-disclosure on
following counts:
a) Non-disclosure of dues to Maharashtra State Electricity
Board in respect of two service connections held by him
amounting to Rs.79,200/- and Rs.66,250/-.
b) The appellant failed to disclose the ownership of
Bungalow No. 866 and the taxes dues thereof amounting to
Rs.3,445/- owned by his wife.
c) The appellant failed to disclose the particulars of
the vehicle MH-05-AC-55 owned by the wife.
d) The appellant is guilty of non-disclosure of property
owned by firm Padmavati Developers of which the appellant
is a partner, which owns two plots of lands measuring 1313
sq.mtrs. and 1292 sq.mts. in Survey No. 48, Hissa No. 9 of
Mouze Kalyan, Taluka Ambarnath, District Thane,
Maharashtra.
Challenging the impugned judgment, the present statutory
appeal is filed, as provided under Section 116A of the Act.

3. We may state, at the outset, that there is no dispute on facts,
namely, the appellant had not disclosed certain informations, as
found by the High Court and noted above, in his nomination form.
Entire dispute rests on the issue as to whether it was incumbent
upon the appellant to have disclosed such an information and non-
disclosure thereof rendered his nomination invalid and void. The
nature of information given by the appellant in his nomination
form, on the basis of which the appellant contends that it ought to
have been treated as substantial compliance, would be taken note of
later at the appropriate stage. We deem it appropriate to state
the legal position contained in the Act, Rules and Orders as well
as the judgments of this Court in order to understand as to whether
there was a substantial compliance by the appellant in the form of
information given by him or it amounted to non-disclosure of the
material information warranting rejection of his nomination.

4. Since the petition filed before the High Court was under Section
100(1)(d)(i) and (iv), we first take note of these provisions,
which are to the following effect:
“100. Grounds for declaring election to be void. – (1)
Subject to the provisions of sub-section (2) if the High
Court is of opinion –
xx xx xx
(d) that the result of the election, in so far as it
concerns a returned candidate, has been materially
affected –
(i) by the improper acceptance or any nomination, or
xx xx xx
(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.”

5. Section 100(1)(d) talks of result of election being ‘materially
affected’ by improper acceptance, we would like to reproduce here
Section 33(1) of the Act, which mandates filing of a nomination
paper completed in the prescribed form in order to constitute it to
be a valid nomination. It reads as under:
“33. Presentation of nomination paper and requirement for
a valid nomination. – (1) On or before the date appointed
under clause (a) of section 30 each candidate shall,
either in person or by his proposer, between the hours of
eleven o’clock in the forenoon and three o’clock in the
afternoon deliver to the returning officer at the place
specified in this behalf in the notice issued under
section 31 a nomination paper completed in the prescribed
form and signed by the candidate and by an elector of the
constituency as proposer:
xx xx xx”

6. Other relevant provisions are Sections 33A, 34, 35 and 36 of the Act,
which are as under:
“33A. Right to information. – (1) A candidate shall,
apart from any information which he is required to
furnish, under this Act or the rules made thereunder, in
his nomination paper delivered under sub-section(1) of
section 33, also furnish the information as to whether –
(i) he is accused of any offence punishable with
imprisonment for two years or more in a pending
case in which a charge has been framed by the court
of competent jurisdiction;
(ii) he has been convicted of an offence other than
any offence referred to in sub-section (1) or sub-
section (2), or covered in sub-section (3), of
section 8 and sentenced to imprisonment for one
year or more.
(2) The candidate or his proposer, as the case may be,
shall, at the time of delivering to the returning officer
the nomination paper under sub-section (1) of section 33,
also deliver to him an affidavit sworn by the candidate in
a prescribed form verifying the information specified in
sub-section (1).
(3) The returning officer shall, as soon as may be after
the furnishing of information to him under sub-section
(1), display the aforesaid information by affixing a copy
of the affidavit, delivered under sub-section (2), at a
conspicuous place at his office for the information of the
electors relating to a constituency for which the
nomination paper is delivered.”
xx xx xx
34. Deposits. – (1) A candidate shall not be deemed to be
duly nominated for election from a constituency unless he
deposits or causes to be deposited. –
(a) in the case of an election from a Parliamentary
constituency, a sum of twenty-five thousand rupees
or where the candidate is a member of a Scheduled
Caste or Scheduled Tribe, a sum of twelve thousand
five hundred rupees; and
(b) in the case of an election from an Assembly or
Council constituency, a sum of ten thousand rupees
or where the candidate is a member of a Scheduled
Caste or Scheduled Tribe, a sum of five thousand
rupees:
Provided that where a candidate has been nominated by more
than one nomination paper for election in the same
constituency, not more than one deposit shall be required
of him under this sub-section.
(2) Any sum required to be deposited under sub-section
(1) shall not be deemed to have been deposited under that
sub-section unless at the time of delivery of the
nomination paper under sub-section (1) or, as the case may
be, sub-section (1A) of section 33 the candidate has
either deposited or caused to be deposited that sum with
the returning officer in cash or enclosed with the
nomination paper a receipt showing that the said sum has
been deposited by him or on his behalf in the Reserve Bank
of India or in a Government Treasury.
xx xx xx
35. Notice of nominations and the time and place for
their scrutiny. – The returning officer shall, on
receiving the nomination paper under sub-section (1) or,
as the case may be, sub-section (1A) of section 33, inform
the person or persons delivering the same of the date,
time and place fixed for the scrutiny of nominations and
shall enter on the nomination paper its serial number, and
shall sign thereon a certificate stating the date on which
and the hour at which the nomination paper has been
delivered to him; and shall, as soon as may be thereafter,
cause to be affixed in some conspicuous place in his
office a notice of the nomination containing descriptions
similar to those contained in the nomination paper, both
of the candidate and of the proposer.
36. Scrutiny of nomination. – (1) On the date fixed for
the scrutiny of nominations under section 30, the
candidates, their election agents, one proposer of each
candidate, and one other person duly authorised in writing
by each candidate but no other person, may attend at such
time and place as the returning officer may appoint; and
the returning officer shall give them all reasonable
facilities for examining the nomination papers of all
candidates which have been delivered within the time and
in the manner laid down in section 33.
(2) The returning officer shall then examine the
nomination papers and shall decide all objections which
may be made to any nomination and may, either on such
objection or on his own motion, after such summary
inquiry, if any, as he things necessary, reject any
nomination on any of the following grounds:–
(a) that on the date fixed for the scrutiny of
nominations the candidate either is not qualified
or is disqualified for being chosen to fill the
seat under any of the following provisions that may
be applicable, namely:–
Articles 84, 102, 173 and 191,
Part II of this Act, and sections 4 and 14 of the
Government of Union Territories Act, 1963; or
(b) that there has been a failure to comply with
any of the provisions of section 33 or section 34;
or
(c) that the signature of the candidate or the
proposer on the nomination paper is not genuine.

 
(3) Nothing contained in clause (b) or clause (c) of sub-
section (2) shall be deemed to authorise the rejection of
the nomination of any candidate on the ground of any
irregularity in respect of a nomination paper, if the
candidate has been duly nominated by means of another
nomination paper in respect of which no irregularity has
been committed.
(4) The returning officer shall not reject any nomination
paper on the ground of any defect which is not of a
substantial character.
(5) The returning officer shall hold the scrutiny on the
date appointed in this behalf under clause (b) of section
30 and shall not allow any adjournment of the proceedings
except when such proceedings are interrupted or obstructed
by riot or open violence or by causes beyond his control:
Provided that in case an objection is raised by the
returning officer or is made by any other person the
candidate concerned may be allowed time to rebut it not
later than the next day but one following the date fixed
for scrutiny, and the returning officer shall record his
decision on the date to which the proceedings have been
adjourned.
(6) The returning officer shall endorse on each
nomination paper his decision accepting or rejecting the
same and, if the nomination paper is rejected, shall
record in writing a brief statement of his reasons for
such rejection.
(7) For the purposes of this section, a certified copy of
an entry in the electoral roll for the time being in force
of a constituency shall be conclusive evidence of the fact
that the person referred to in that entry is an elector
for that constituency, unless it is proved that he is
subject to a disqualification mentioned in section 16 of
the Representation of the People Act, 1950 (43 of 1950).
(8) Immediately after all the nomination papers have been
scrutinized and decisions accepting or rejecting the same
have been recorded, the returning officer shall prepare a
list of validly nominated candidates, that is to say,
candidates whose nominations have been found valid, and
affix it to his notice board.”

 
7. After having taken note of the aforesaid statutory provisions, let us
now proceed to discuss some of the important judgments of this
Court and to cull out legal principles therefrom on the subject,
which have a direct bearing on the issue of disclosure of
information.

8. First case that needs a mention, which is a milestone and trigerred
electoral reforms in this country, is Union of India v. Association
for Democratic Reforms & Anr., (2002) 5 SCC 294. In this case, the
Court held that it was incumbent upon every candidate, who is
contesting election, to give information about his assets and other
affairs, which requirement is not only essential part of fair and
free elections, inasmuch as, every voter has a right to know about
these details of the candidates, such a requirement is also covered
by freedom of speech granted under Article 19(1)(a) of the
Constitution of India. The summing up the entire discussion in the
judgment can be found in the following passage:
“46. To sum up the legal and constitutional position
which emerges from the aforesaid discussion, it can be
stated that:
1. The jurisdiction of the Election Commission is wide
enough to include all powers necessary for smooth conduct
of elections and the word “elections” is used in a wide
sense to include the entire process of election which
consists of several stages and embraces many steps.
2. The limitation on plenary character of power is when
Parliament or State Legislature has made a valid law
relating to or in connection with elections, the
Commission is required to act in conformity with the said
provisions. IN case where law is silent, Article 324 is a
reservoir of power to act for the avowed purpose of having
free and fair election. The Constitution has taken care
of leaving scope for exercise of residuary power by the
Commission in its own right as a creature of the
Constitution in the infinite variety of situations that
may emerge from time to time in a large democracy, as
every contingency could not be foreseen or anticipated by
the enacted laws or the rules. By issuing necessary
directions, the Commission can fill the vacuum till there
is legislation on the subject. In Kanhiya Lal Omar case
(1985) 4 SCC 628 the Court construed the expression
“superintendence, direction and control” in Article 324(1)
and held that a direction may mean an order issued to a
particular individual or a precept which many may have to
follow and it may be a specific or a general order and
such phrase should be construed liberally empowering the
Election Commission to issue such orders.
3. The word “elections” includes the entire process of
election which consists of several stages and it embraces
many steps, some of which may have an important bearing on
the process of choosing a candidate. Fair election
contemplates disclosure by the candidate of his past
including the assets held by him so as to give a proper
choice to the candidate according to his thinking and
opinion. As stated earlier, in Common Cause case, (1996)
2 SCC 752 the Court dealt with a contention that elections
in the country are fought with the help of money power
which is gathered from black sources and once elected to
power, it becomes easy to collect tons of black money,
which is used for retaining power and for re-election. If
on an affidavit a candidate is required to disclose the
assets held by him at the time of election, the voter can
decide whether he could be re-elected even in case where
he has collected tons of money.
Presuming, as contended by the learned Senior Counsel
Mr. Ashwani Kumar, that this condition may not be much
effective for breaking a vicious circle which has polluted
the basic democracy in the country as the amount would be
unaccounted. May be true, still this would have its own
effect as a step-in-aid and voters may not elect law-
breakers as law-makers and some flowers of democracy may
blossom.
4. To maintain the purity of elections and in particular
to bring transparency in the process of election, the
Commission can ask the candidates about the expenditure
incurred by the political parties and this transparency in
the process of election would include transparency of a
candidate who seeks election or re-election. In a
democracy, the electoral process has a strategic role.
The little man of this country would have basic elementary
right to know full particulars of a candidate who is to
represent him in Parliament where laws to bind his liberty
and property may be enacted.
5. The right to get information in democracy is recognised
all throughout and it is a natural right flowing from the
concept of democracy. At this stage, we would refer to
Article 19(1) and (2) of the International Covenant on
Civil and Political Rights, which is as under:
“(1) Everyone shall have the right to hold opinions
without interference.
(2) Everyone shall have the right to freedom of
expression; this right shall include freedom to seek,
receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or in
print, in the form of art, or through any other media of
his choice.”
6. On cumulative reading of a plethora of decisions of
this Court as referred to, it is clear that if the field
meant for legislature and executive is left unoccupied
detrimental to the public interest, this Court would have
ample jurisdiction under Article 32 read with Articles 141
and 142 of the Constitution to issue necessary directions
to the executive to subserve public interest.
7. Under our Constitution, Article 19(1)(a) provides for
freedom of speech and expression. Voter’s speech or
expression in case of election would include casting of
votes, that is to say, voter speaks out or expresses by
casting vote. For this purpose, information about the
candidate to be selected is a must. Voter’s (little man –
citizen’s) right to know antecedents including criminal
past of his candidate contesting election for MP or MLA is
much more fundamental and basic for survival of democracy.
The little man may think over before making his choice of
electing law-breakers as law-makers.

9. On the basis of the aforesaid discussion, this Court issued
directions for filing affidavit and the nature of information which
was to be given, spelling out the same in para 48 of the judgment,
which reads as under:
“48. The Election Commission is directed to call for
information on affidavit by issuing necessary order in
exercise of its power under Article 324 of the
Constitution of India from each candidate seeking election
to Parliament or a State Legislature as a necessary part
of his nomination paper, furnishing therein, information
on the following aspects in relation to his/her
candidature:
(1) Whether the candidate is convicted/acquitted/
discharged of any criminal offence in the past – if any,
whether he is punished with imprisonment or fine.
(2) Prior to six months of filing of nomination, whether
the candidate is accused in any pending case, of any
offence punishable with imprisonment for two years or
more, and in which charge is framed or cognizance is taken
by the court of law. If so, the details thereof.
(3) The assets (immovable, movable, bank balance, etc.)
of a candidate and of his/her spouse and that of
dependants.
(4) Liabilities, if any, particularly whether there are
any overdues of any public financial institution or
government dues.
(5) The educational qualifications of the candidate.”

10. The judgment in Association for Democratic Reforms led to amendment
in the Act with the induction of Section 33A (already reproduced
above) as well as Section 33B therein. Election Commission also
laid down guidelines in the year 2002. Insofar as Section 33B is
concerned, it was struck down by this Court in the case of People’s
Union for Civil Liberties (PUCL) & Anr. v. Union of India & Anr.,
(2003) 4 SCC 399.

11. In order to bring the directions contained in the aforesaid two
judgments within the statutory framework, revised guidelines were
issued by the Election Commission on March 23, 2006. In para 5 of
these guidelines, para 14 of the judgment in Association for
Democratic Reforms is reproduced. Likewise, para 13 takes note of
the directions given in the case of People’s Union for Civil
Liberties. In para 15, it is noted that the Supreme Court, while
striking down Section 33B of the Act, stated that earlier
directions of Election Commission dated June 28, 2002 would
continue to operate subject to the afore-mentioned directions of
the Court and, therefore, revised directions had become necessary.
In para 16, these directions are issued in supersession of earlier
directions dated June 28, 2002. Paras 1 and 3 of these
guidelines/directions are relevant for us, and, therefore, we
reproduce the same as under:
“(1) Every candidate at the time of filing his nomination
paper for any election to the Council of State, House of
the People, Legislative Assembly of a State of the
Legislative Council of a State having such a council,
shall furnish full and complete information in regard to
the matters specified by the Hon’ble Supreme Court and
quoted in paras 13 and 14 above, in an affidavit, the
format whereof is annexed hereto as Annexure-I to this
order.
xx xx xx
(3) Non-furnishing of the affidavit by any candidate
shall be considered to be violation of the order of the
Hon’ble Supreme Court and the nomination of the candidate
concerned shall be liable to rejection by the returning
officer at the time of scrutiny of nomination such non-
furnishing of the affidavit.”

12. We would also like to reproduce para 17 of these guidelines, which
concerns the case at hand:
“17. For the removal of doubt, it is hereby clarified that
the earlier direction contained in para 14(4) of the
earlier order dated 28th June, 2002, in so far as
verification of assets and liabilities by means of summary
enquiry and rejection of nomination paper on the ground of
furnishing wrong information or suppressing material
information is not enforceable in pursuance of the order
dated 13th March, 2003 of the Apex Court. It is further
clarified that apart from the affidavit Annexure-I hereto
referred to in para 16(1) above, the candidate shall have
to comply with the other requirements as spelt out in the
Representation of the People Act, 1951, as amended by the
Representation of the People (Third Amendment) Act, 2002
and the Conduct of Election Rules, 1961, as amended by the
Conduct of Elections (Amendment) Rules, 2002.”

13. The meaning and scope of these guidelines came up for discussion
before this Court in Resurgence India v. Election Commission of
India & Anr., (2013) 11 Scale 348. That judgment was rendered in a
writ petition filed under Article 32 of the Constitution of India
for issuance of specific directions to effectuate meaningful
implementation of the judgments in Association of Democratic
Reforms, People’s Union for Civil Liberties and also to direct the
Election Commission to make it compulsory for the Returning Officer
to ensure that the affidavits filed by the contestants are complete
in all respects and to reject the affidavits having blank
particulars. This petition, thus was filed taking note of the
practice which had started prevailing, namely, many candidates were
leaving some of the columns blank in their affidavits thereby
omitting to provide the required information. As per the
petitioner in that case, in such an eventuality the Returning
Officer should reject the nomination whereas the Union of India
pleaded that it should be treated at par with filing false
affidavits and the candidate filing such an affidavit should be
prosecuted under Section 125A of the Act. The Court took note of
the provisions of Sections 33A, 36 and 125A of the Act and
thereafter referred to the earlier three Judge Bench judgment of
this Court in Shaligram Shrivastava v. Naresh Singh Patel, (2003) 2
SCC 176, wherein the Court had discussed the power of rejecting the
nomination paper by the Returning Officer of a candidate filing the
affidavit with particulars left blank. The relevant discussion in
this behalf is in paras 15 and 16 of the said judgment, which read
as under:
“15. Although, the grounds of contention may not be
exactly similar to the case on hand but the reasoning
rendered in that verdict will come in aid for ariving at a
decision in the given case. In order to arrive at a
conclusion in that case, this Court traversed through the
objective behind filing the proforma. The proforma
mandated in that case was required to be filed as to the
necessary and relevant information with regard to the
candidate in the light of Section 8 of the RP Act. This
Court further held that at the time of scrutiny, the
Returning Officer is entitled to satisfy himself whether
the candidate is qualified and not disqualified, hence,
the Returning Officer was authorized to seek such
information to be furnished at the time or before
scrutiny. It was further held that if the candidate fails
to furnish such information and also absents himself at
the time of the scrutiny of the nomination papers, then he
is obviously avoiding a statutory inquiry being conducted
by the Returning Officer under Section 36(2) of the RP Act
relating to his being not qualified or disqualified in the
light of Section 8 of the RP Act. It is bound to result
in defect of a substantial character in the nomination.
This Court further held as under:
“17. In the case in hand the candidate had failed to
furnish such information as sought on the proforma given
to him and had also failed to be present personally or
through his representative at the time of scrutiny. The
statutory duty/power of Returning Officer for holding
proper scrutiny of nomination paper was rendered
nugatory. No scrutiny of the nomination paper could be
made under Section 36(2) of the Act in the light of
Section 8 of the Act. It certainly rendered the
nomination paper suffering from defect of substantial
character and the Returning Officer was within his
rights in rejecting the same.”
16. It is clear that the Returning Officers derive the
power to reject the nomination papers on the ground that
the contents to be filled in the affidavits are essential
to effectuate the intent of the provisions of the RP Act
and as a consequence, leaving the affidavit blank will in
fact make it impossible for the Returning Officer to
verify whether the candidate is qualified or disqualified
which indeed will frustrate the object behind filing the
same. In concise, this Court in Shaligram (supra)
evaluated the purpose behind filing the proforma for
advancing latitude to the Returning Officers to reject the
nomination papers.”
14. The legal position is, thereafter, summarized in para 27, which
becomes important for our purpose and, therefore, we produce the
same hereunder:
“27. What emerges from the above discussion can be
summarized in the form of following difections:
(i) The voter has the elementary right to know full
particulars of a candidate who is to represent him in the
Parliament/Assemblies and such right to get information is
universally recognized. Thus, it is held that right to
know about the candidate is a natural right flowing from
the concept of democracy and is an integral part of
Article 19(1)(a) of the Constitution.
(ii) The ultimate purpose of filing of affidavit along
with the nomination paper is to effectuate the fundamental
right of the citizens under Article 19(1)(a) of the
Constitution of India. The citizens are supposed to have
the necessary information at the time of filing of
nomination paper and for that purpose, the Returning
Officer can very well compel a candidate to furnish the
relevant information.
(iii) Filing of affidavit with blank particulars will
render the affidavit nugatory.
(iv) It is the duty of the Returning Officer to check
whether the information required is fully furnished at the
time of filing of affidavit with the nomination paper
since such information is very vital for giving effect to
the ‘right to know’ of the citizens. If a candidate fails
to fill the blanks even after the reminder by the
Returning Officer, the nomination paper is fit to be
rejected. We do comprehend that the power of Returning
Officer to reject the nomination paper must be exercised
very sparingly but the bar should not be laid so high that
the justice itself is prejudiced.
(v) We clarify to the extent that Para 73 of People’s
Union for Civil Liberties case (supra) will not come in
the way of the Returning Officer to reject the nomination
paper when affidavit is filed with blank particulars.
(vi) The candidate must take the minimum effort to
explicitly remark as ‘NIL’ or ‘Not Applicable’ or ‘Not
known’ in the columns and not to leave the particulars
blank.
(vii) Filing of affidavit with blanks will be directly
hit by Section 125A(i) of the RP Act. However, as the
nomination paper itself is rejected by the Returning
Officer, we find no reason why the candidate must be again
penalized for the same act by prosecuting him/her.”

15. Keeping in mind the aforesaid statutory framework as well as the
legal principles enunciated in the afore-noted judgments, we now
proceed to discuss the nature of information about which there was
non-disclosure by the appellant.

RE – Non-disclosure of Government dues
16. The appellant had not disclosed, in his nomination paper/ affidavit,
that he was in arrears in respect of two electricity meters
standing in his name, in respect whereof electricity connection was
given by the Maharashtra State Electricity Board (for short,
‘MSEB’). The outstanding amount in these two meters was Rs.79,200/-
and Rs.66,250/- respectively. It was proved, on the basis of
evidence led by the respondent herein, that the aforesaid dues were
outstanding against these two electricity connections. The defence
of the appellant, however, was that one electricity meter, which
was in his residential bungalow, was defective and complaints in
this behalf were made to MSEB from time to time and because of that
dispute he was orally advised by the officials of MSEB not to pay
the amount.

17. The High Court proceeded on the assumption that there was a dispute.
However, as per the High Court that could not be a valid reason for
not disclosing this information with a note that the matter was
pending review at the hands of MSEB. Thereafter, the High Court
posed the question as to whether such non-disclosure can be treated
as a technical defect or it is a substantive one. As per the High
Court, the answer could be found by adverting to the form and the
affidavits to be filed along with the nomination form. These forms
required the candidates to disclose his liabilities/overdues to
public financial institution and Government dues. Since MSEB is a
Government body, the appellant was supposed to give this
information. The High Court opined that non-disclosure of this
information, which is very vital to enable the voter to form his
opinion about the candidate’s antecedents, resulted in
misinformation and disinformation thereby influencing the voters to
take an uninformed decision. The discussion on this aspect is
summed up by the High Court in the following manner:
“Accordingly, I have no hesitation in taking the view that
it is a case of non-disclosure of liability in respect of
outstanding electricity bills payable to Government
Undertaking (M.S.E.B.); and that non-disclosure is a
substantive defect in the affidavits filed along with
nomination form. The test to hold that the defect is
substantive, in my opinion, is not the amount involved,
but the conscious act of non-disclosure and suppression of
that fact. It would be a case of technical defect if
there was some clerical error in the information disclosed
by the candidate or for that matter, a case of omission
due to lack of knowledge of existence of such dues. In
the present case, the Respondent was conscious and aware
of the fact that on the date of filing of the nomination
form, there were two outstanding electricity bills in
relation to two meters standing in his name, payable to
M.S.E.B. It would have been a different matter if the
Respondent was unaware of that fact or that no such bill
was ever issued by the M.S.E.B. That is not the case of
the Respondent. Thus understood, non-disclosure about the
outstanding electricity bill in the sum of Rs. 79,200/-
payable by the Respondent to M.S.E.B. Is a substantive
defect in the affidavit. Resultantly, the nomination form
filed along with such affidavit would become tainted and
for which reason, it will have to be held that the same
has been improperly accepted within the meaning of Section
100(1)(d)(i) of the Act. Besides, the candidate has
failed to comply with the requirements of the order issued
by the Election Commission in exercise of powers under
Article 324(1) of the Constitution of India which order is
founded on the Law declared by the Apex Court in the case
of Union of India vs. Association for Democratic Reforms
(supra) and binding under Article 141 of the Constitution,
therefore, affecting his nomination as well as the
Election being void under Section 100(1)(d)(iv) of the
Act.”

18. Insofar as outstanding dues in respect of the second electricity
meter are concerned, that pertained to premises which had been let
out by the appellant to his tenants. There was no dispute that the
amount was outstanding. However, the defence of the appellant was
that the primary liability of making payment was that of the
tenants. The High Court had discarded this defence with the
observations that electricity meter stood in the name of the
appellant in relation to which there was an outstanding, which
amount was payable on the date of filing of the nomination. Even
the premises where this meter had been installed were owned by the
appellant. Therefore, in law, it was the appellant who was liable
to be proceeded against for recovery of the amount and this fact
was enough justification to disclose the aforesaid outstanding. As
per the High Court, even this non-disclosure amounted to
substantive defect.
On that basis, the High Court held that non-disclosure of
these Government dues rendered the nomination paper invalid and,
therefore, it was a case of improper acceptance.

. RE – Non-disclosure of bungalow No. 866 in the name of spouse and
outstanding taxes thereof

19. Bungalow No. 866 at Badlapur in the limits of Kulgaon-Badlapur
Municipal Council stands in the name of Kamal Kishore Kathore, wife
of the appellant. At the time of filing the nomination, there were
municipal dues in the sum of Rs.3,465/-. Allegation of the first
respondent was that both the aforesaid informations were suppressed
and not disclosed in the affidavit filed by the appellant along
with the nomination form. According to him, this was crucial
information regarding immovable property owned by the appellant’s
wife, suppression whereof amounted to filing a defective affidavit
and such an affidavit was no affidavit in the eyes of law.

20. Significantly, the averment of the first respondent in the election
petition that the appellant had suppressed information regarding
the aforesaid immovable property belonging to his wife was not
specifically denied by the appellant. The appellant only denied
the liability of taxes pertaining to this property, that too on the
ground that this property was required to be put to revaluation and
reassessment for the purpose of assessing the taxes and for this
purpose since the measurement of the property was undertaken to
assess the taxable value, no demand notices were issued by the
municipal authority. Even hearing regarding re-assessment took
place on December 28, 2014 before the Collector and it is only
after the completion of the reassessment work the municipal
authority had issued tax demand notices.

21. In view of the aforesaid, the High Court observed that as far as the
ownership of the property in the name of the wife of the appellant
is concerned, it was a clear case of non-disclosure and the
ownership was proved even on the basis of evidence produced before
the Court. As far as non-payment of municipal dues is concerned,
the High Court noted that the appellant merely explained the
circumstances in his written statement as to why the municipal
taxes in relation to that property had not been paid. However, the
municipal taxes were paid in part on October 28, 2004, after the
date of filing of nomination with the payment of Rs.1,783/-
pertaining to the year 2003-04. It would show that the appellant
was in arrears. The Court also discussed the evidence on this
aspect, namely, about the purported dispute relating to the
reassessment as set up by the appellant in his defence and has
returned a finding of fact that, in fact, there were arrears of
municipal taxes in relation to that house.

22. As far as non-disclosure of the immovable property is concerned, the
only reply given by the appellant was that there was a substantial
compliance because of the reason that the appellant in his
affidavit had disclosed the value of all the properties belonging
to him and his spouse, in the sum of Rs.11,10,000/-. The High
Court, however, found that no such case was made out in the written
statement. Moreover, in the affidavit filed by the appellant,
against the column of immovable properties, he had disclosed the
properties at Badlapur and Kulgaon, valued at Rs.11,10,000/-, shown
against the column ‘Self’. Thus, the valuation of the properties
given in the affidavit was of those properties which belong to the
appellant and, therefore, it was a clear case of non-disclosure of
wife’s property. This non-disclosure is also taken as a material
defect. Summing up the discussion on this aspect, the High Court,
in para 74, observed as under:
“74. Insofar as the present case is concerned, as is
mentioned earlier, the fact asserted by the Petitioner is
that the Respondent has not disclosed the ownership of his
wife in relation to house No. 866/4 in the affidavit “at
all”. That allegation has remained unchallenged and
undenied. In my opinion, therefore, there is substance in
the stand taken on behalf of the Petitioner that the
affidavit filed by the Respondent along with the
nomination paper is only to do lip-service and is no
affidavit at all as is required by the mandate of law or
the order issued by the Election Commission which is
founded on the Law declared by the Apex Court. As the
affidavit filed by the Respondent along with the
nomination form suffers from this substantive defect, the
nomination of the Respondent has been improperly accepted
within the meaning of Section 100(1)(d)(i) of the Act.
Besides, the election of the Respondent was void also on
account of non-compliance of the order passed by the
Election Commission under Article 324 of the Constitution
of India, which is founded on the Law declared by the Apex
Court under Article 141 of the Constitution of India,
within the meaning of Section 100(1)(d)(iv) of the Act.”

RE – Non-disclosure of vehicle MH-05-AC-555 owned by the appellant’s
wife

23. Here again, from the detailed discussion contained in the impugned
judgment of the High Court, it becomes clear that by leading
requisite and sufficient evidence, the first respondent proved that
wife of the appellant owned the aforesaid vehicle and the
particulars thereof were not disclosed. The defence of the
appellant was that he had mentioned the value thereof in his
affidavit, but accepted that it was against column ‘Self’ and not
in the independent column of his spouse. His defence is discussed
and rejected by the High Court in the following manner:
“89. On analysis of the pleadings, it follows that the
Respondent admits that motor vehicle in question is owned
by his wife. However, it is not his case that in the
nomination form, he has disclosed the ownership of the
said vehicle of his wife. Perhaps, the Respondent intends
to suggest that he has substantially complied with the
requirements by disclosing the ownership of motor vehicle
valued Rs.5,50,000/- and that it was purchased against
loan given by M & M Financial Services Ltd.
90. Before we deal with the ocular evidence of the
parties, it will be useful to make reference to the
details to be disclosed by the candidate as per the
prescribed affidavit. The requirement is that the
candidate should disclose the “details of the motor
vehicles” owned and possessed by him, his wife and/or
other dependent members of his family separately. The
Respondent, however, against the said column has only
mentioned figure of Rs.5,50,000/- under the column ‘Self’,
which gives an impression that the Respondent himself owns
vehicle valued Rs.5,50,000/- and nothing more. No details
of the motor vehicle such as number of vehicle, the make,
the model such as economic, luxury or the year of purchase
and the like are disclosed so as to enable the voters to
assess whether the details disclosed are correct or
undervalued, including the legitimate means and capability
of the candidate to possess such assets. As in the case
of disclosure made by the Respondent in respect of
buildings, in similar manner, the disclosure in respect of
vehicle is also incomplete, vague and misleading. The
candidate cannot get away with the explanation that he has
disclosed some amount in one of the columns as sufficient
or substantial compliance. The purpose of disclosure of
assets (movable and immovable) and liabilities to be made
by the candidate, is to educate the voters about the
complete financial status of the candidate, which
information also facilitates the voter to assess whether
the assets (movable and immovable) declared by the
candidate have been procured by him out of his legitimate
and known source of income. The voters have a fundamental
right to know and receive such information about the
candidate before they take an informed decision to elect
their candidate. As it is the fundamental right of the
voters, there is corresponding duty on the candidate to
disclose truthful and complete information regarding the
assets (movable and immovable) as per the prescribed
affidavits which forms integral part of the nomination
form.”

 

 
RE – Non-disclosure of property purchased in the name of the firm

24. The first respondent had alleged that the appellant has a right,
title and interest in land measuring 1330 sq.mts. being Survey No.
48, Hissa No. 9, Plot No.2 and also in land admeasuring about 1292
sq.mts. being Survey No. 48, Hissa No. 9, Plot No.3 at Mouje
Kalyan, Taluka Ambernath, District Thane. These properties are
purchased in the name of the partnership firm M/s. Padmavati
Developers under agreement of development and sale. The appellant
was one of the partners in the said firm. However, the appellant
had not disclosed his interest in the aforesaid assets in the
affidavit filed along with the nomination form. The defence of the
appellant in relation to this allegation was that he had retired
from the partnership firm in the year 2003 and in his letter dated
October 28, 2004 sent to the Returning Officer, he had stated that
the aforesaid two properties do not belong to him. The High Court
noted that admittedly there was no reference about the two
properties in the affidavits filed along with the nomination form.
Further, it was a common case that M/s. Padmavati Developers was
formed as a partnership firm in the year 1995, of which the
appellant was one of the partners. There was also no dispute that
the bank account was operated in the name of the said partnership
firm and appellant was one of the joint signatory. Thus, the only
aspect which needed determination was as to whether the appellant
had retired from the said partnership firm in November 2003, as
claimed by him. However, from the plethora of documentary evidence
placed on record, the High Court returned a finding that those
documents clearly show that the appellant continued to remain an
active partner even after 2003 and was, in fact, a partner on the
date of filing of the nomination. Apart from various documents
revealing and establishing this fact, most important document was
the Deed of Dissolution of the partnership firm, which was dated
January 11, 2005 and at the time of evidence, the appellant had
admitted the contents thereof, as well as the signatures of the
three partners appearing on that document.
The High Court summed up the decision on this aspect in
the following manner:
“124. On overall analysis of the evidence, I have no
hesitation in concluding that the Petitioner has
established the allegation that the Respondent continued
to be partner of the partnership firm Padmavati Developers
at least till December 2004. It is also matter of record
and admitted position that neither the Respondent nor any
other partner of Padmavati Developers caused to give
public notice of the retirement of the partner or for that
matter, intimation to the Registrar of Firms till January
2005. Obviously, intimation has been sent to the
Registrar of Firms only after the institution and service
of the present Election Petition, having realised the
seriousness of the allegation. If so, it was obligatory
on the part of the Respondent to disclose his interest in
the properties purchased in the name of the said firm.”

25. It would be pertinent to mention here that the first respondent had
alleged non-disclosure of many other assets, liabilities, etc. or
suppression of other material information in the affidavits.
However, apart from the aforesaid four non-disclosures, other
allegations have not been accepted by the High Court. We would
also like to mention at this stage itself that on all the four
counts the High Court has recorded finding of facts, which are
based on the evidence produced on record. As would be noted
hereinafter, learned senior counsel appearing for the appellant did
not even attempt to argue that these findings are wrong on facts.
He only made legal submissions and his entire endeavour was that
for non-disclosure of the aforesaid information, the High Court
could not have held that the nomination was wrongly accepted and
further that since there was a substantial compliance, there was no
reason to set aside the election of the appellant.

26. On these aspects, the High Court had framed issues No. 7 and 8, which
are as under:
“(7) Does the Petitioner proves that the Respondent’s
Nomination Form is improperly accepted by the Returning
Officer”
(8) Whether on account of improper acceptance of the
nomination paper, the Election result is materially
affected?”

27. On Issue No.7, finding of the High Court is that nomination was
improperly accepted by the Returning Officer by giving the
following reasons:
“130. That takes me to the next issue as to whether
Petitioner proves that the Respondent’s nomination form is
improperly accepted by the Returning Officer? Insofar as
this issue is concerned, the Respondent may be right to
the extent that the Returning Officer cannot be faulted
for having accepted the nomination form of the Respondent.
That was required to be accepted inspite of the
objection, in view of the decision of the Apex Court in
the case of PUCL (supra) 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 Officer 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 Respondent was
proper and lawful. As the Respondent’s nomination paper
suffered 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 Officer, covered by the rigours of Section
100(1)(d)(i) of the Act. The issue No.7 will have to be
answered accordingly.”

28. Issue No. 8 pertains to the question as to whether the election
result was materially affected because of non-disclosure of the
aforesaid information. The High Court took note of provisions of
Section 100(1)(d)(i) and (iv) and discussed the same. Thereafter,
some judgments cited by the appellant were distinguished and
deciding this issue against the appellant, the High Court concluded
as under:
“137. In my opinion, it is not necessary to elaborate
on this matter beyond a point, except to observe that when
it is a case of improper acceptance of nomination on
account of invalid affidavit or no affidavit filed
therewith, which affidavit is necessarily an integral part
of the nomination form; and when that challenge concerns
the returned candidate and if upheld, it is not necessary
for the Petitioner to further plead or prove that the
result of the returned candidate has been materially
affected by such improper acceptance.
138. The avowed purpose of filing the affidavit is to make
truthful disclosure of all the relevant matters regarding
assets (movable and immovable) and liabilities as well as
criminal actions (registered, pending or in respect of
which cognizance has been taken by the Court of competent
jurisdiction or in relation to conviction in respect of
specified offences). Those are matters which are
fundamental to the accomplishment of free and fair
election. It is the fundamental right of the voters to be
informed about all matters in relation to such details for
electing candidate of their choice. Filing of complete
information and to make truthful disclosure in respect of
such matters is the duty of the candidate who offers
himself or who is nominated for election to represent the
voters from that Constituency. As the candidate has to
disclose this information on affidavit, the solemnity of
affidavit cannot be allowed to be ridiculed by the
candidates by offering incomplete information or
suppressing material information, resulting in
disinformation and misinformation to the voters. The
sanctity of disclosure to be made by the candidate flows
from the constitutional obligation.”

29. 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 affidavit filed by him along with the nomination
form. The defence and/or justification given for non-disclosing
these particulars is rightly rebuffed by the High Court. However,
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. Siddheshwar v. Prasanna Kumar, (2013) 4 SCC
776, the Court was required to examine as to whether information
given in the affidavits was substantial compliance of 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 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 firm are concerned, the appellant was simply a
partner from which he had resigned, even when this event occurred
after the filing of the nomination form.

30. We may state, in the first instance, that the judgment in G.M.
Siddheshwar has no application insofar as the present case is
concerned. The Court was dealing with the form of affidavit that
is required to be filed along with the election petition in order
to comply with the provisions of Section 83(1) proviso of the Act.
The very maintainability of the election petition was challenged on
the ground that the affidavit furnished by the election petitioner
was not in absolute compliance with the format affidavit (Form 25).
The Court, however, upheld the view of the High Court holding that
on perusal of the affidavit, there was substantial compliance with
the prescribed format. Even when some defect was found in the
verification to the election petition, it was held that said defect
is also curable and cannot be held fatal to the maintainability of
the election petition. In the present case, we are concerned with
the affidavit which a candidate seeking election is required to
file along with his nomination form. At the same time, we proceed
on the basis that if there is a substantial compliance of the
requirements contained in the said affidavits, in the sense that
there is a disclosure of required particulars, including
assets/liabilities etc., it can be treated as adequate compliance
of the provisions of the Act, Rules and Orders.

31. We have also kept in mind the following observations in G.M.
Siddheshwar, while undertaking our analysis of the issue in the
present case:
“31. The Court must make a fine balance between the purity
of the election process and the avoidance of an election
petition being a source of annoyance to the returned
candidate and his constituents. In Azhar Hussain v. Rajiv
Gandhi, 1986 Supp SCC 315 this Court observed (in the
context of summary dismissal of an election petition):
(SCC p. 324, para 12)
“12…So long as the sword of Damocles of the election
petition remains hanging an elected member of the
legislature would not feel sufficiently free to devote
his whole-hearted attention to matters of public
importance which clamour for his attention in his
capacity as an elected representative of the
constituency concerned. The time and attention demanded
by his elected office will have to be diverted to
matters pertaining to the contest of the election
petition. Instead of being engaged in a campaign to
relieve the distress of the people in general and of the
residents of his constituency who voted him into office,
and instead of resolving their problems, he would be
engaged in campaign to establish that he has in fact
been duly executed.”

 
32. In view of the aforesaid, two facets of the issue, which require
consideration, are as follows:
a) Whether there is a substantial compliance in disclosing the
requisite information in the affidavits filed by the appellant
along with the nomination paper?
b) Whether non-disclosure of the information on account of
aforesaid four aspects has materially affected the result of the
election?

33. 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
finding about non-disclosure of the information qua all the aspects
is without blemish. There is a specific format in which the
information is to be given, which was not adhered to.

34. With these remarks we proceed to deal with the first 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 fide dispute about the outstanding
dues in respect of the first 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 fide
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 first instance. Again, in
such circumstances, one can bona fide 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 filing 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.1,783/- 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 in 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.

35. Even if it is so, in respect of the aforesaid aspects, on other non-
disclosures, the case of the appellant has to fail. We find 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 appellant’s
wife. Likewise, non-disclosure of the appellant’s interest/share
in the partnership firm is a very serious and major lapse. On all
these aspects, we find that the defence/explanation furnished by
the appellant does not inspire any confidence. 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
affidavits 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 affidavits be treated
as sufficient/substantial compliance.

36. We have already reproduced above the relevant portions of judgments
in the cases of Association for Democratic Reforms and People’s
Union for Civil Liberties 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
qualifications and assets held by the candidate, his spouse and
dependent children. It is on that basis that not only Election
Commission has issued guidelines, but also prepared formats in
which the affidavits are to be filed. As a fortiorari, 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.

37. It was argued that acceptance of nomination is as per Section 33 of
the Act, which contains requirement for a valid nomination.
Further Section 36(2) deals with rejection of nomination on grounds
specified 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 satisfied and there cannot be any
‘deemed’ ground, which is not covered by Section 36(2) of the Act.
Therefore, the Returning Officer had rightly accepted the
nomination form as none of the grounds specified in sub-section (2)
of Section 36 were attracted. He further submitted that Sections
8A, 9, 9A, 10 and 10A provide disqualifications for Members of
Parliament and 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 Officer is required to examine
is as to whether the candidate suffers from any of the
disqualifications mentioned in Section 8 to 10A 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 affidavit
prescribed by Rule 4A and the deposit required by Section 34 of the
Act. Apart from the aforesaid, the Returning Officer is not
empowered to reject the nomination on any other ground. He argued
that the right of the Returning Officer to conduct a summary
inquiry into the correctness or otherwise of the contents of the
affidavit filed along with the nomination was expressly taken away
as can be seen from the judgment of this Court in the case of
People’s Union for Civil Liberties. Having noted that the
Returning Officer has no power to reject a nomination where false
information is furnished or material information is suppressed, the
Election Commission of India and Union of India have requested this
Court to treat the same as equal to a blank affidavit, as noted in
the case of Resurgence India.
It is difficult to accept the aforesaid submissions of the
learned senior counsel as that would amount to nullifying the
effect of the judgments as well as guidelines issued by the
Election Commission.

38. When the information is given by a candidate in the affidavit filed
along with the nomination paper and objections are raised thereto
questioning the correctness of the information or alleging that
there is non-disclosure of certain important information, it may
not be possible for the returning officer at that time to conduct a
detailed examination. Summary enquiry may not suffice. Present
case is itself an example which loudly demonstrates this. At the
same time, it would not be possible for the Returning Officer to
reject the nomination for want of verification about the
allegations made by the objector. In such a case, when ultimately
it is proved that it was a case of non-disclosure and either the
affidavit was false or it did not contain complete information
leading to suppression, it can be held at that stage that the
nomination was improperly accepted. Ms. Meenakshi Arora, learned
senior counsel appearing for the Election Commission, right argued
that such an enquiry can be only at a later stage and the
appropriate stage would be in an election petition as in the
instant case, when the election is challenged. The grounds stated
in Section 36(2) are those which can be examined there and then and
on that basis the Returning Officer would be in a position to
reject the nomination. Likewise, where the blanks are left in an
affidavit, nomination can be rejected there and then. In other
cases where detailed enquiry is needed, it would depend upon the
outcome thereof, in an election petition, as to whether the
nomination was properly accepted or it was a case of improper
acceptance. Once it is found that it was a case of improper
acceptance, as there was misinformation or suppression of material
information, one can state that question of rejection in such a
case was only deferred to a later date. When the Court gives such
a finding, which would have resulted in rejection, the effect would
be same, namely, such a candidate was not entitled to contest and
the election is void. Otherwise, it would be an anomalous
situation that even when criminal proceedings under Section 125A 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.

39. The upshot of the aforesaid discussion would be to hold that the
present appeal is totally devoid of any merits and is, accordingly,
dismissed.
…………………………………..J.
(Surinder Singh Nijjar)

 
…………………………………..J.
(A.K. Sikri)
New Delhi;
May 09, 2014.

 

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