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Friday, October 28, 2016

This Court in Hari Shanker Jain v. Sonia Gandhi, 2001 (8) SCC 233 at page 244 upheld the decision of a Full Bench of the Rajasthan High Court wherein it was decided that the jurisdiction of the High Court to try an election petition is not by way of constituting a special jurisdiction and conferring it upon the High Court. It is an extension of the original jurisdiction of the High Court to hear and decide the election disputes. It is clear from the above judgments of this Court that the inherent power of the High Court is not taken away when the election disputes are adjudicated. Section 53 (2) is a power conferred on the Returning Officer to declare a candidate elected when the number of candidates is equal to the number of seats to be filled. The power of the High Court is not fettered by Section 53 (2). The High Court has taken into consideration an anomalous situation that would arise by a candidate belonging to one party being declared elected after having crossed the floor. We are in agreement with the High Court and we do not intend to interfere with the discretion exercised by the High Court.

                                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No. 2649 of 2016


SRI MAIREMBAM PRITHVIRAJ @ PRITHVIRAJ SINGH


                                                           .... Appellant(s)
                                   Versus

SHRI PUKHREM SHARATCHANDRA SINGH

                                                             ….Respondent(s)

                                    With

                        CIVIL APPEAL No. 2829 of 2016


PUKHREM SHARATCHANDRA SINGH

                                                           .... Appellant(s)
                                   Versus

SRI MAIREMBAM PRITHVIRAJ @ PRITHVIRAJ SINGH
                                                             ….Respondent(s)


                               J U D G M E N T


L. NAGESWARA RAO, J.

CIVIL APPEAL No. 2649 of 2016
      The Appellant has filed this appeal aggrieved by the judgment  of  the
High Court of Manipur at  Imphal  by  which  his  election  to  the  Manipur
Legislative Assembly from Moirang  Assembly  constituency  was  declared  as
void.
A Notification was issued for  election  to  the  10th  Manipur  Legislative
Assembly  on  04.01.2012.   The  Appellant  belonging  to  the   Nationalist
Congress Party (NCP) and the Respondent who  was  sponsored  by  the  Indian
National Congress (INC) filed their nominations within the time  prescribed.
 There was no other nomination  filed.    The  Respondent  objected  to  the
nomination of the Appellant at the time of scrutiny on  the  ground  that  a
false declaration relating to educational  qualification  was  made  by  the
Appellant.   The  Returning  Officer  directed  the  Appellant   to   submit
documents in proof of his  educational  qualification  as  declared  in  the
affidavit filed under  Form  26.    The  Appellant  failed  to  produce  any
document to prove his  educational  qualification  in  spite  of  which  the
Returning Officer accepted the nomination of  the  Appellant.  Polling  took
place on 28.01.2012 and the counting of votes was held on  06.03.2012.   The
result was declared on the same day.  The  Appellant  secured  14,521  votes
and the  Respondent  secured  13,363  votes.   The  Appellant  was  declared
elected as MLA, Moirang Constituency.

The Respondent challenged  the  election  of  the  Appellant  by  filing  an
election petition in the Guwahati High Court seeking a declaration that  the
Appellant’s election was null  and  void,  that  the  Respondent  should  be
declared as duly elected and that a criminal proceeding should  be  directed
to be initiated against the Appellant under Section 125-A  and  127  of  the
Representation of the People Act, 1951  (hereinafter  referred  to  as  ‘the
Act’).  Apart from the ground of  improper  acceptance  of  nomination,  the
Respondent also alleged corrupt practices against the Appellant.

The Appellant denied the allegation of false declaration.  According to  the
Appellant, the declaration made by him that he  passed  Master  of  Business
Administration (MBA) in 2004 from Mysore University was  a  clerical  error.
The Respondent abandoned the  allegation  of  corrupt  practices  and  other
electoral malpractices during the trial of  the  election  petition  in  the
High Court.      The High Court framed six issues which are as follows:

“Whether the Returning Officer of 27th Moirang  AC  has  illegally  accepted
the nomination paper of the respondent or not?
Whether the election of the respondent had been materially affected  by  the
acceptance of the nomination paper of the respondent by  the  R.O.  of  27th
Moirang A/C or not?
Whether the respondent had filed false affidavit in respect of  the  highest
education qualification in the Form, in which the respondent  had  mentioned
“MBA Mysore University” or whether it was merely a clerical error?
Whether the petition lacks material facts or not?
Whether the election petition is liable to be dismissed for not putting  the
words “attested to be true copy of the petition” on each and every  page  of
the petition by the petitioner himself or not; or  on  any  of  the  defects
raised by the respondent in his written statement?
Whether the petitioner is  entitled  to  the  relief  claimed  in  the  writ
petition?”

Issue No.  5  pertains  to  attestation  of  the  petition  not  being  made
properly.  The objection raised by the Appellant to the  maintainability  of
the election petition was that only the front page of the election  petition
had the words “Attested to be true copy.”   Issue  No.  5  was  answered  in
favour of the Respondent. The High Court  considered  the  main  controversy
pertaining to the  filing  of  false  affidavit  regarding  the  educational
qualification by the Appellant in a detailed manner.    There  is  no  doubt
that the Appellant filed Form 26  in  which  he  mentioned  his  educational
qualification  as  MBA  from  Mysore  University  in  2004.   After  careful
consideration of the material on record and various judgments cited  by  the
parties,  the  High  Court  concluded  that  the  declaration  made  by  the
Appellant in Form 26 about his educational qualification as MBA from  Mysore
University was false.   The plea of the Appellant that the  defect  in  Form
26 was due to  a  clerical  error  was  rejected.   The  contention  of  the
Appellant  that  providing   wrong   information   about   the   educational
qualification was not a defect of substantial character was  also  rejected.
The Appellant contended that the Respondent failed to plead and  prove  that
the result was ‘materially affected’ as required under Section 100  (1)  (d)
of the Act.  The High Court did  not  accept  the  said  contention  on  the
ground that there were only two candidates in the fray in which case it  was
not necessary  to  prove  that  the  result  of  election  of  the  returned
candidate was materially affected.  The High Court further  held  if  it  is
found that the Appellant’s nomination was improperly  accepted,  the  result
of his election stood automatically affected materially.    The  High  Court
on the basis of the above reasons declared the election of the Appellant  as
void.  The Appellant has filed this appeal challenging the same.

We have heard Mr. V. Giri, learned Senior Counsel for the Appellant and  Ms.
Meenakshi Arora, learned Senior  Counsel  for  the  Respondent.    Mr.  Giri
submitted that the declaration pertaining to the  educational  qualification
of the Appellant was merely a clerical error  and  cannot  be  termed  as  a
false  declaration.   In  any  event,   the   declaration   of   educational
qualification is not a defect of substantial nature warranting rejection  of
his nomination.   Mr. Giri also submitted that  the  election  petition  was
filed under Section 100 (1) (d) (i) and (iv) of the Act.    He  stated  that
there is neither pleading nor  proof  in  the  election  petition  that  the
improper acceptance of the Appellant’s nomination  had  materially  affected
the result.  According to Mr. Giri, the Appellant’s election cannot  be  set
aside on the ground of improper acceptance of  his  nomination  without  the
requirement of Section  100  (1)  (d)  of  the  Act  being  satisfied.    He
referred to Durai Muthuswami v. N. Nachiappan and Ors. reported in 1973  (2)
SCC 45 and submitted that the said judgment  should  be  restricted  to  the
facts of that case.  He also attempted to distinguish the said  judgment  as
not applicable to the facts of this case by submitting that it  was  a  case
of disqualification under Section 9-A of  the  Act.   He  further  submitted
that the said case was one filed under Section 100 (1) (a) of  the  Act.  He
contended that there is no need for pleading or proving that the result  was
materially affected if the election is challenged under Section 100 (1)  (a)
to (c) whereas it is compulsory in a petition filed under  Section  100  (1)
(d).

Ms. Meenakshi Arora, learned Senior  Counsel,  argued  that  the  Respondent
pleaded in the election  petition  that  the  result  of  the  election  was
materially affected by the improper acceptance  of  the  nomination  of  the
Appellant.  She took us through the pleadings and evidence,  both  oral  and
documentary, to contend that the declaration  of  educational  qualification
by  the  Appellant  was  not  a  mistake.    She  submitted  that  the  same
declaration was made by the Appellant even when  he  contested  the  earlier
election to the Legislative Assembly in  2008.   She  also  highlighted  the
contradictory stands relating to the declaration  taken  by  the  Appellant.
She submitted that it was not necessary to  show  that  the  result  of  the
election was  materially  affected  when  there  were  only  two  contesting
candidates for one seat.   She relied upon the judgment in Durai  Muthuswami
(supra) which according to her, was approved in Jagjit Singh v.  Dharam  Pal
Singh, reported in 1995 Supp (1) SCC 422.   She further  relied  upon  Union
of India v. Association for Democratic Reforms, reported  in  2002  (5)  SCC
294,  People’s Union for Civil Liberties (PUCL) v. Union of India,  reported
in 2003 (4)  SCC  399,  Kisan  Shankar  Kathore  v.  Arun  Dattatray  Sawant
reported in 2014 (14) SCC 162 and Resurgence India  v.  Election  Commission
of India and  Anr.  reported  in  2014  (14)  SCC  189  in  support  of  her
submission  that  a  voter  has  a  right  to  know  about  the  educational
qualification of the  candidate  and  any  false  or  mis-declaration  would
result in rejection of the nomination of the candidate. Ms. Meenakshi  Arora
also cited Hari Krishna Lal v. Babu Lal Marandi reported  in  2003  (8)  SCC
613 to contend that  the  false  declaration  relating  to  the  educational
qualification of a candidate is a defect of substantial character.

Two issues fall for our consideration in this appeal which are:
Whether a false declaration relating to the educational qualification  is  a
defect of substantial character warranting rejection of a nomination?
Whether it is necessary to plead and prove that the  result  was  materially
affected when the nomination of the returned candidate  was  found  to  have
been improperly  accepted,  moreso,  when  there  are  only  two  candidates
contesting the election?
  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  Officer
within the prescribed period.   Section 33-A which was inserted  by  Act  72
of 2002 with effect from 24.08.2002 contemplates that  a  candidate  has  to
provide additional information, apart from the information provided  by  him
under Section 33 (1).  The information mentioned in Section 33-A relates  to
the criminal antecedents of a candidate.  Section 36 deals with scrutiny  of
nomination.  Section 36(4) which is relevant for adjudication of  this  case
is as follows:
“36. Scrutiny of nomination. – (4) The Returning Officer  shall  not  reject
any nomination paper on  the  ground  of  any  defect  which  is  not  of  a
substantial character.”

Rule 4 (A) of the Conduct of Election Rules, 1961 which  was  inserted  with
effect from 03.09.2002 reads as under:
 “[4A. Form of affidavit to be filed at the time  of  delivering  nomination
paper.—The candidate or his proposer, as the case  may  be,  shall,  at  the
time of delivering to the  returning  officer  the  nomination  paper  under
subsection (1) of section 33 of the Act, also deliver to  him  an  affidavit
sworn by the candidate before a Magistrate of the first class  or  a  Notary
in Form 26.]”

A candidate has to file an affidavit along  with  his  nomination  paper  as
prescribed in  Form  26  in  which  one  of  the  columns  pertains  to  the
educational qualification.  Grounds for declaring the election  to  be  void
are provided in Section 100 of the Act which is as under:
“100. Grounds for declaring election to be void.—
 [(1) Subject to the provisions of sub-section (2) if 3 [the High Court]  is
of opinion—
(a) that  on  the  date  of  his  election  a  returned  candidate  was  not
qualified, or was disqualified, to be chosen to  fill  the  seat  under  the
Constitution or this Act 9 [or the  Government  of  Union  Territories  Act,
1963 (20 of 1963)]; or
(b) that any corrupt practice has been committed by a returned candidate  or
his election agent or by any other person with the  consent  of  a  returned
candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as  it  concerns  a  returned
candidate, has been materially affected—
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in  the  interests  of  the  returned
candidate 1 [by an agent other than his election agent], or
(iii) by the improper reception, refusal or rejection of  any  vote  or  the
reception of any vote which is void, or
(iv) by any non—compliance with the provisions of  the  Constitution  or  of
this Act or of any rules or orders made under this Act,
[the High Court] shall declare the election of the returned candidate to  be
void.]
[(2)] If in the opinion of 2 [the High  Court],  a  returned  candidate  has
been guilty by an agent, other than  his  election  agent,  of  any  corrupt
practice 4 *** but 2 [the High Court] is satisfied—
(a)   that no such corrupt practice was committed at  the  election  by  the
candidate or his  election  agent,  and  every  such  corrupt  practice  was
committed contrary to the orders,  and  5  [without  the  consent],  of  the
candidate or his election agent;
6 * * * * *
 (c)  that the candidate and his election agent took  all  reasonable  means
for preventing the commission of corrupt 7 *** practices  at  the  election;
and
(d)   that in all other respects the election was free from  any  corrupt  7
*** practice on the part of the candidate or any of his agents,
then 2 [the High Court]  may  decide  that  the  election  of  the  returned
candidate is not void.”

Section 125-A  prescribes  penalty  for  filing  false  affidavit  which  is
reproduced as under:
“[125A. Penalty for filing false affidavit, etc.—
A candidate who himself or through his proposer, with intent to  be  elected
in an election,—
fails to furnish information relating to sub-section (1) of section 33A;  or

give false information which he knows or has reason to believe to be  false;
or
conceals any information, in  his  nomination  paper  delivered  under  sub-
section (1) of section 33 or in  his  affidavit  which  is  required  to  be
delivered under sub-section (2) of section 33A, as the case may  be,  shall,
notwithstanding anything contained in any other law for the  time  being  in
force, be punishable with imprisonment for a term which may  extend  to  six
months, or with fine, or with both.]”

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.”

In Union of India v. Association for Democratic Reforms (supra)  this  Court
held that the voter  has  a  fundamental  right  to  information  about  the
contesting candidates.   The voter has  the  choice  to  decide  whether  he
should cast a vote in favour of a person involved in a criminal  case.    He
also has a right to decide whether holding of an  educational  qualification
or holding of  property  is  relevant  for  electing  a  person  to  be  his
representative.  Pursuant to the judgment in Union of India  v.  Association
for  Democratic  Reforms  (supra)  Section  33-A   was   inserted   in   the
Representation  of  the  People  Act  providing  for  right  to   additional
information by an Ordinance.   The  challenge  to  the  said  Ordinance  was
dealt with by this Court in People’s Union for  Civil  Liberties  (PUCL)  v.
Union of India (supra) in which it was held as follows:
“78. What emerges from the above discussion can be summarised thus:

(D) The contention that as there is no specific fundamental right  conferred
on a voter  by  any  statutory  provision  to  know  the  antecedents  of  a
candidate, the directions given by this  Court  are  against  the  statutory
provisions is, on the face of it, without  any  substance.  In  an  election
petition challenging the validity of an election of a particular  candidate,
the statutory provisions would govern  respective  rights  of  the  parties.
However, voters' fundamental right to know the antecedents  of  a  candidate
is independent of statutory rights under the election law. A voter is  first
citizen of this country and  apart  from  statutory  rights,  he  is  having
fundamental rights conferred by the Constitution. Members  of  a  democratic
society should be sufficiently informed so that they may  cast  their  votes
intelligently in favour of persons who are to govern  them.  Right  to  vote
would be meaningless  unless  the  citizens  are  well  informed  about  the
antecedents of a candidate. There can  be  little  doubt  that  exposure  to
public gaze and  scrutiny  is  one  of  the  surest  means  to  cleanse  our
democratic governing system and to have competent legislatures.”

It is relevant to mention that the Election Commission  of  India  issued  a
press note on 28.06.2002 in which there was a reference to the  judgment  of
this Court in Union of India v. Association for Democratic Reforms in  which
it was held that information on five aspects  has  to  be  provided  to  the
voter.  One of the five aspects pertains to  the  educational  qualification
of the candidates.  An order was issued by the Election Commission of  India
on 28.06.2002 directing that full and complete information relating  to  the
five aspects which were mentioned in  the  judgment  has  to  be  furnished.
Providing incomplete information or suppression of material  information  on
any of the five aspects was  to  be  treated  as  a  defect  of  substantial
character by the Returning Officers.

In Resurgence India v. Election Commission of India and  Anr.  (supra)  this
Court held that every candidate is  obligated  to  file  an  affidavit  with
relevant information with regard to their criminal antecedents,  assets  and
liabilities and educational  qualification.   The  fundamental  right  under
Article 19 (1) (a) of the voter was reiterated in the said judgment  and  it
was held that filing of affidavit with blank particulars  would  render  the
affidavit as nugatory.  In Kisan Shankar Kathore v.  Arun  Dattatray  Sawant
reported in 2014 (14) SCC page 162 this Court considered the question as  to
whether  it  was  incumbent  upon  the  Appellant  to  have   disclose   the
information  sought  for  in  the  nomination  form  and  whether  the  non-
disclosure thereof render the nomination invalid  and  void.   It  was  held
that  non-furnishing  of  the   required   information   would   amount   to
suppression/non-disclosure.

It is clear from the law laid down by this Court as stated above that  every
voter has a fundamental right to know about  the  educational  qualification
of a candidate.   It is also clear from the provisions  of  the  Act,  Rules
and Form 26 that there is a duty cast on  the  candidates  to  give  correct
information about their educational qualifications.  It is  not  in  dispute
that the Appellant did not study MBA in the Mysore University.   It  is  the
case of the Appellant that reference to MBA from  Mysore  University  was  a
clerical error.  It was contended by the Appellant that  he  always  thought
of  doing  MBA  by  correspondence  course  from  Mysore  University.   But,
actually he did not do the course.  The question which has to be decided  is
whether the declaration given by him in Form 26 would amount to a defect  of
substantial nature warranting rejection of his nomination.   Section 36  (4)
of  the  Act  mandates  that  the  Returning  Officer  shall  not  reject  a
nomination paper on the ground of any defect which is not of  a  substantial
character.  The declaration made by the Appellant in Form 26, filed in  2012
is not a clerical error  as  contended  by  him.   The  Appellant  contested
election to the same constituency in 2008 and in the affidavit filed by  him
in Form 26 he declared that he passed MBA from Mysore  University  in  2004.
In the  affidavit  filed  by  him  in  this  election  petition  by  way  of
examination-in-chief, the Appellant stated that  his  nomination  paper  and
the enclosed affidavit were  prepared  and  filed  by  his  counsel  Chakpam
Bimolchandra Singh on the instructions of his agent  Ph.  Shamu  Singh.   He
also stated that his counsel filled the  prescribed  affidavit  in  his  own
hand-writing.  The Appellant  also  stated  that  he  signed  the  affidavit
without reading the contents and he came to know about the error  only  when
the Respondent raised  his  objection  to  the  nomination.   The  Appellant
further stated that he was working in Projeon, Infosys Company and IBM  till
2007 and because of his job many local friends and elders  thought  that  he
was an MBA degree-holder.  His election  agent  also  thought  that  he  was
holding an MBA degree due  to  which  he  instructed  the  Advocate  Chakpam
Bimolchandra Singh to fill up column 9 of the affidavit by stating that  the
Appellant  is  an  MBA  degree-holder.    In  his   cross-examination,   the
Appellant gave evasive replies to the questions relating to his  educational
qualification.   He  stated  that  he  does  not  remember  whether  he  had
undergone MBA from Mysore University and he does  not  remember  whether  he
possesses MBA degree.  Chakpam Bimolchandra Singh who was examined  as  DW-3
in his cross-examination denied having filled up the  entries  in  Form  26.
He stated that he entered the educational qualifications  of  the  Appellant
on the basis of instructions given by the election  agent  Shamu  Singh.  He
also stated that he was not present before the Oath  Commissioner  when  the
Appellant signed the affidavit.

The contention of  the  Appellant  that  the  declaration  relating  to  his
educational qualification in the affidavit is a  clerical  error  cannot  be
accepted.   It is not an error committed once.  Since  2008,  the  Appellant
was making the statement  that  he  has  an  MBA  degree.   The  information
provided by him in the affidavit filed in Form 26 would amount  to  a  false
declaration.  The said false declaration cannot  be  said  to  be  a  defect
which is not substantial.  He was given  an  opportunity  by  the  Returning
Officer to produce the relevant document in support of his declaration.   At
least at that point of time he should have informed  the  Returning  Officer
that an error crept into the declaration.  He  did  not  do  so.  The  false
declaration relating to his educational qualification cannot  be  stated  to
be not of a substantial character.  It is no more  res  integra  that  every
candidate has to disclose his  educational  qualification  to  subserve  the
right to  information  of  the  voter.   Having  made  a  false  declaration
relating  to  his  educational  qualification,  the  Appellant   cannot   be
permitted  to  contend  that  the  declaration  is  not  of  a   substantial
character.  For the reasons stated supra, we uphold  the  findings  recorded
by the High Court that the false declaration  relating  to  the  educational
qualification made by the Appellant is substantial in nature.

Having answered the first question against the Appellant, we proceed now  to
deal with  the  next  point.    Section  100  (1)  (a)  to  (c)  deals  with
disqualification, corrupt practices and improper  rejection  of  nominations
respectively which are grounds for setting aside  the  election.   The  sine
qua non for setting aside an election under Section 100 (1) (d) is that  the
result of the election, in so far as it concerns a returned  candidate,  has
been materially  affected.  The  contention  of  Mr.  Giri,  learned  Senior
Counsel for the Appellant is that even if it is held that the nomination  of
the appellant was improperly accepted, his election cannot be set  aside  in
the absence of  any  pleading  or  proof  that  the  result  was  materially
affected by the improper acceptance of  the  nomination.    He  relied  upon
Magani Lal Mandal v. Bishnu Deo Bhandari, reported in 2012 (3) SCC page  314
to contend that every defect  cannot  be  a  ground  for  setting  aside  an
election under Section 100  (1)  (d)  without  further  proof  that  it  had
materially affected the result of the returned candidate.  He also  referred
to Shambhu Prasad Sharma v. Charandas Mahant and Ors. reported in 2012  (11)
SCC page 390 in which it was held as follows:

“20. Coming to the allegation that other candidates had also  not  submitted
affidavits in proper format, rendering the acceptance  of  their  nomination
papers improper, we need to point out that the  appellant  was  required  to
not only allege material facts relevant to  such  improper  acceptance,  but
further assert  that  the  election  of  the  returned  candidate  had  been
materially affected by such acceptance. There is no such  assertion  in  the
election petition. Mere improper acceptance assuming that any such  improper
acceptance was supported by assertion of material facts  by  the  appellant-
petitioner, would not disclose a cause of action to call for  trial  of  the
election petition on merit unless the same is  alleged  to  have  materially
affected the result of the returned candidate.”

There is no dispute that an election cannot be set aside on  the  ground  of
improper acceptance of any nomination without a pleading and proof that  the
result of the returned candidate was materially affected.  The point  to  be
considered is whether the law as laid down by this  Court  relating  to  the
pleading and proof of the fact of  the  result  of  the  returned  candidate
being materially affected applies to a case  where  the  nomination  of  the
returned  candidate  is  declared  to  have  been  improperly  accepted.   A
situation similar to the facts of this case arose for consideration of  this
Court in Durai Muthuswami’s case.  It is necessary to deal  with  this  case
in detail as the Counsel for the Appellant submitted that the said  judgment
is not applicable to the facts of the present case and that finding  in  the
said case have to be treated as obiter.

The facts,  in  brief,  of  the  case  of  Durai  Muthuswami  are  that  the
Petitioner in the election petition contested in the election to  the  Tamil
Nadu Legislative Assembly from  Sankarapuram  constituency.   He  challenged
the election of the First Respondent on the grounds of  improper  acceptance
of nomination of the returned candidate,  rejection  of  101  postal  ballot
papers, ineligible persons permitted to vote, voting in  the  name  of  dead
persons and double voting. The High Court dismissed  the  election  petition
by holding that the Petitioner failed to allege and prove  that  the  result
of the election was materially affected by the improper  acceptance  of  the
nomination of the First Respondent as required by Section  100  (1)  (d)  of
the Act. The Civil Appeal filed by the Petitioner  therein  was  allowed  by
this Court in Durai Muthuswami (supra) in which it was held as follows:
 “3. Before dealing with the question whether the learned  Judge  was  right
in holding  that  he  could  not  go  into  the  question  whether  the  1st
respondent's nomination has been improperly accepted because  there  was  no
allegation in the election petition that the election  had  been  materially
affected as a result of such improper  acceptance,  we  may  look  into  the
relevant provisions of law. Under Section 81 of the  Representation  of  the
People Act, 1951 an election petition calling in question any  election  may
be presented on one or more of the grounds specified in sub-section  (1)  of
Section 100 and Section 101. It is not necessary to refer  to  the  rest  of
the section. Under Section 83(1) (a), insofar as it  is  necessary  for  the
purpose  of  this  case,  an  election  petition  shall  contain  a  concise
statement of the material  facts  on  which  the  petitioner  relies.  Under
Section 100(1) if the High Court is of opinion—
(a) that  on  the  date  of  his  election  a  returned  candidate  was  not
qualified, or was disqualified, to be chosen to  fill  the  seat  under  the
Constitution or this Act ….
(b)-(c) * * *
(d) that the result of the election,  insofar  as  it  concerns  a  returned
candidate, has been materially affected—
(i) by the improper acceptance of any nomination, or
(ii)-(iii) * * *
the High Court shall declare the election of the returned  candidate  to  be
void. Therefore, what Section 100 requires is that the High Court before  it
declares the election of a returned candidate is void should be  of  opinion
that the result of the election insofar as it concerns a returned  candidate
has been materially affected by the improper acceptance of  any  nomination.
Under Section 83 all that was necessary  was  a  concise  statement  of  the
material facts on which the petitioner relies. That the  appellant  in  this
case has done. He has also stated that the election is void because  of  the
improper acceptance of the 1st respondent's nomination and the  facts  given
showed that the 1st respondent was suffering from a  disqualification  which
will  fall  under  Section  9-A.  That  was  why  it  was  called   improper
acceptance. We do not consider that in the circumstances  of  this  case  it
was necessary for the petitioner to  have  also  further  alleged  that  the
result of the election insofar as it concerns  the  returned  candidate  has
been materially affected by the improper acceptance of the 1st  respondent's
nomination.  That  is  the  obvious  conclusion  to  be   drawn   from   the
circumstances of this case. There was only one seat to be filled  and  there
were only  two  contesting  candidates.  If  the  allegation  that  the  1st
respondent's  nomination  has  been  improperly  accepted  is  accepted  the
conclusion that would follow is that the appellant would have  been  elected
as he was the only candidate validly nominated. There can be, therefore,  no
dispute that the result of the election insofar as it concerns the  returned
candidate has been materially affected by the  improper  acceptance  of  his
nomination because but for such improper acceptance he would not  have  been
able to stand for the election or be declared to be elected. The  petitioner
had also alleged  that  the  election  was  void  because  of  the  improper
acceptance of the 1st respondent's nomination. In the case of election to  a
single-member constituency if there are more than  two  candidates  and  the
nomination of one of the defeated candidates had  been  improperly  accepted
the question might arise as to whether the result of  the  election  of  the
returned candidate had been materially affected by such improper  reception.
In such a case the question would arise as to what would  have  happened  to
the votes which had been cast in favour  of  the  defeated  candidate  whose
nomination had been improperly accepted if it  had  not  been  accepted.  In
that case it would be necessary for the person challenging the election  not
merely to allege but also to prove that the result of the election had  been
materially affected by the improper acceptance  of  the  nomination  of  the
other defeated candidate. Unless he succeeds in proving that  if  the  votes
cast in favour  of  the  candidate  whose  nomination  had  been  improperly
accepted would have gone in the petitioner's favour and he would have got  a
majority he cannot succeed in his election  petition.  Section  100(1)(d)(i)
deals with such a contingency. It is not intended to  provide  a  convenient
technical plea in a case like this where there can  be  no  dispute  at  all
about the election being  materially  affected  by  the  acceptance  of  the
improper nomination. “Materially affected” is not a formula that has got  to
be specified but it is an essential  requirement  that  is  contemplated  in
this section. Law does not contemplate a mere repetition of a  formula.  The
learned Judge has failed to notice  the  distinction  between  a  ground  on
which an election can be declared to be void and the  allegations  that  are
necessary in  an  election  petition  in  respect  of  such  a  ground.  The
petitioner had stated the ground on  which  the  1st  respondent's  election
should be declared to be void. He had  also  given  the  material  facts  as
required under Section 83(1)(a). We are,  therefore,  of  opinion  that  the
learned Judge erred in holding that it was not competent for him to go  into
the question whether the 1st respondent's  nomination  had  been  improperly
accepted.” (Underlining ours)

It is clear from the above judgment that there is a difference  between  the
improper acceptance  of  a  nomination  of  a  returned  candidate  and  the
improper acceptance of nomination of any other candidate.  There is  also  a
difference between cases where there are only two  candidates  in  the  fray
and a situation where there are more  than  two  candidates  contesting  the
election.  If  the  nomination  of  a  candidate  other  than  the  returned
candidate is found to have been improperly accepted, it  is  essential  that
the election Petitioner has to plead and prove  that  the  votes  polled  in
favour of such candidate would have been  polled  in  his  favour.   On  the
other hand, if the improper acceptance of  nomination  is  of  the  returned
candidate, there is no  necessity  of  proof  that  the  election  has  been
materially affected as the returned candidate would not have  been  able  to
contest the election if  his  nomination  was  not  accepted.    It  is  not
necessary for the Respondent to prove that result of the election in so  far
as it concerns the returned candidate has been materially  affected  by  the
improper acceptance of his nomination as  there  were  only  two  candidates
contesting the election and if the Appellant’s  nomination  is  declared  to
have been improperly accepted, his election  would  have  to  be  set  aside
without any further enquiry and the only  candidate  left  in  the  fray  is
entitled to be declared elected.   The  judgment  of  this  Court  in  Durai
Muthuswami (supra)  was referred to in Jagjit Singh  v.  Dharam  Pal  Singh,
1995 Supp (1) SCC 422 page 429 in which it was held as follows:

“21. The trial Judge has held  that  since  there  is  no  averment  in  the
petition that  the  result  of  the  election  was  materially  affected  by
improper rejection or acceptance of votes, it is devoid of cause of  action.
We are unable to agree that the absence of such an averment in the facts  of
this case is fatal. As pointed out by this Court, there may be  cases  where
the obvious conclusion to be  drawn  from  the  circumstances  is  that  the
result of the  election  has  been  materially  affected  and  that  Section
100(1)(d) of the Act is not intended to provide a convenient technical  plea
in a case where there can be no dispute at  all  about  the  result  of  the
election being materially affected by  the  alleged  infirmity.  (See: Durai
Muthuswami v. N. Nachiappan [(1973) 2 SCC 45 : (1974) 1 SCR 40]  .)  In  the
present case, the appellant in the election petition has stated that he  has
lost by a margin of 80  votes  only.  From  the  various  averments  in  the
election petition it was evident that the  number  of  valid  votes  of  the
appellant which are alleged to have been improperly rejected  is  much  more
than 80. From the averments contained in the election petition  it  is  thus
obvious if the appellant succeeds in establishing his case  as  set  out  in
the election petition the result of this election, insofar  as  it  concerns
the returned candidate, would be materially affected.”

It was held by this Court in Vashist Narain Sharma v. Dev Chandra,  reported
in 1955 (1) SCR 509 as under:
“9. The learned counsel for the respondents  concedes  that  the  burden  of
proving  that  the  improper  acceptance  of  a  nomination  has  materially
affected the result of the election lies upon the petitioner but  he  argues
that the question can arise in one of three ways:
(1) where  the  candidate  whose  nomination  was  improperly  accepted  had
secured less votes than the difference between the  returned  candidate  and
the candidate securing the next highest number of votes,
(2) where the person referred to above secured more votes, and
(3) where the person whose nomination has been improperly  accepted  is  the
returned candidate himself.
It is agreed that in the first case  the  result  of  the  election  is  not
materially affected because if all the wasted votes are added to  the  votes
of the candidate securing the highest votes, it will make no  difference  to
the result and the returned candidate will retain the  seat.  In  the  other
two cases it is contended that the result is materially affected. So far  as
the third case is concerned it may be readily conceded that  such  would  be
the conclusion. But we are not prepared to hold that the mere fact that  the
wasted votes are greater than the  margin  of  votes  between  the  returned
candidate and the candidate securing the next highest number of  votes  must
lead to the necessary inference that the result of  the  election  has  been
materially affected. That is a matter which has to be proved  and  the  onus
of proving it lies upon the petitioner. It will not do merely  to  say  that
all or a majority of the wasted votes might have gone to  the  next  highest
candidate. The casting of votes at an election depends  upon  a  variety  of
factors and it is not possible for any one to predicate how  many  or  which
proportion of the votes will go to one  or  the  other  of  the  candidates.
While it  must  be  recognised  that  the  petitioner  in  such  a  case  is
confronted with a difficult situation, it is not possible to relieve him  of
the duty imposed upon him by Section 100(1)(c)  and  hold  without  evidence
that the duty has been discharged. Should  the  petitioner  fail  to  adduce
satisfactory evidence to enable the Court to find  in  his  favour  on  this
point, the inevitable result would be that the Tribunal would not  interfere
in his favour and would allow the election to stand.” (Underlining ours).

This Court in Kisan Shankar Kathore v. Arun Dattatray Sawant  (supra)  dealt
with a situation similar to that of this case.  In that case,  the  election
of the returned candidate was successfully challenged on the ground of  non-
disclosure of material  information.   The  appeal  filed  by  the  returned
candidate was dismissed by this Court by observing as follows:
“Once it is found that it was a case of improper acceptance,  as  there  was
misinformation or suppression of material information, one  can  state  that
question of rejection in such a case was only  deferred  to  a  later  date.
When  the  Court  gives  such  a  finding,  which  would  have  resulted  in
rejection, the effect would be  same,  namely,  such  a  candidate  was  not
entitled to contest and the election is void.”


Mere finding that there has been an improper acceptance  of  the  nomination
is not sufficient for a declaration that the election is void under  Section
100 (1) (d).  There has to be further pleading and proof that the result  of
the election of the  returned  candidate  was  materially  affected.    But,
there would be no necessity of any proof in the event of the  nomination  of
a returned candidate being declared  as  having  been  improperly  accepted,
especially in a case where there are only two candidates in  the  fray.   If
the returned candidate’s nomination is  declared  to  have  been  improperly
accepted it would mean that he could not have  contested  the  election  and
that the result of the election of the  returned  candidate  was  materially
affected need not be proved further.   We  do  not  find  substance  in  the
submission of Mr. Giri that the judgment in Durai Muthuswami (supra) is  not
applicable to the facts of this case. The submission that  Durai  Muthuswami
is a case of disqualification under Section 9-A of the Act and,  so,  it  is
not applicable to the facts of this case is also  not  correct.   As  stated
supra, the election petition in that case was rejected on the ground of non-
compliance of Section 100 (1) (d).  The said judgment  squarely  applies  to
this case on all fours.  We also do not find force in  the  submission  that
the Act has to be  strictly  construed  and  that  the  election  cannot  be
declared to be void under Section 100 (1) (d)  without  pleading  and  proof
that the result of the  election  was  materially  affected.   There  is  no
requirement to prove that  the  result  of  the  election  of  the  returned
candidate is materially affected once his nomination  is  declared  to  have
been improperly accepted.

For the aforementioned reasons, the Civil Appeal is dismissed.  No costs.

Civil Appeal No. 2829 of 2016

  This  appeal  is  filed  by  the  Petitioner  in  the  election   petition
challenging that part of the judgment dated 29.02.2016  of  the  High  Court
Manipur at Imphal, by which the relief that he  should  be  declared  to  be
elected was rejected. The Appellant contested the election  as  a  candidate
of the Nationalist Congress Party (NCP).  Respondent No.1  was  declared  to
have been elected on 28.01.2012.  The election of the First  Respondent  was
set aside  by  the  High  Court  in  the  election  petition  filed  by  the
Appellant.  The Appellant also  sought  for  a  relief  that  he  should  be
declared to have been elected.  Such relief was rejected by the High  Court.
 Hence, this appeal.

After the result of the election was declared on 28.01.2012,  the  Appellant
resigned from NCP and joined Bhartiya Janta  Party  (BJP).   To  a  question
posed by the Court during the  recording  of  his  evidence,  the  Appellant
stated that he tendered resignation from NCP in the  latter  part  of  2013,
that he joined BJP and he continued to be a member of the BJP.  In  January,
2016, the Appellant filed an  application  for  amendment  to  the  election
petition.  He intended to insert  additional  submissions  relating  to  his
expulsion from NCP on 23.12.2013 and the representation made by him  to  the
President NCP Manipur to cancel the expulsion  order.   He  also  wanted  to
bring on record the fact that his enrolment to the  membership  of  BJP  was
rejected on 18.01.2016.  He further  stated  in  the  application  that  the
order of expulsion by the NCP was revoked by an order dated 21.01.2016.

The  arguments  in  the  election  petition  filed  by  the  Appellant  were
concluded on 25.02.2016.  The High Court recorded a finding in the  impugned
judgment that all the pending miscellaneous applications  were  disposed  of
with the consent  of  both  sides  and  the  election  petition  was  to  be
adjudicated  on  the  basis  of  existing  material  on  record.    As   the
miscellaneous application filed by the Appellant  was  not  considered,  the
High Court decided the matter on the basis of the material on  record  which
clearly showed that the Appellant resigned from NCP and joined  BJP.   After
a careful consideration of the material on record, the  High  Court  refused
to grant the declaration as sought by the Appellant.  The  High  Court  held
that having joined BJP, the Appellant was not entitled for a declaration  as
he contested the election  in  2012  on  behalf  of  NCP.   The  High  Court
highlighted the fact that the Appellant will be an MLA belonging to BJP,  if
declared elected after having contested the election on behalf of  the  NCP.
Taking into account the spirit of law as expressed in  paragraph  no.  2  of
the 10th Schedule of the Constitution of India the High Court did not  grant
the relief sought by the Appellant that he should be declared elected.

Ms. Meenakshi Arora, learned Senior  Counsel  appearing  for  the  Appellant
submitted that the 10th Schedule to the Constitution is  not  applicable  to
adjudication of an election petition.   She relied upon Section  53  (2)  of
the Act to contend that the Appellant should be declared as duly elected  as
he was the  only  person  remaining  in  the  fray  after  the  election  of
respondent/returned candidate was declared void.   Section 101  of  the  Act
provides for declaration of the Petitioner to have been duly elected if  the
High Court is of the opinion that the Petitioner received  majority  of  the
valid votes.

According to Section 80 (A) of  the  Act,  the  High  Court  will  have  the
jurisdiction to try an election petition.  It is well settled law  that  the
High Court hearing an election petition is not an ‘authority’  and  that  it
remains the High Court while trying an  election  petition  under  the  Act.
(See T. Deen Dayal v. High Court of A.P., 1997  (7)  SCC  535 at  page  540.
This Court in Hari Shanker Jain v. Sonia Gandhi, 2001 (8)  SCC  233 at  page
244 upheld the decision of a Full Bench of the Rajasthan High Court  wherein
it was decided that the jurisdiction of the High Court to  try  an  election
petition  is  not  by  way  of  constituting  a  special  jurisdiction   and
conferring it upon the High Court.  It  is  an  extension  of  the  original
jurisdiction of the High Court to hear and  decide  the  election  disputes.
It is clear from the above judgments of this Court that the  inherent  power
of the High  Court  is  not  taken  away  when  the  election  disputes  are
adjudicated.   Section 53 (2) is a power conferred on the Returning  Officer
to declare a candidate elected when the number of  candidates  is  equal  to
the number of seats to be filled.  The  power  of  the  High  Court  is  not
fettered by Section 53 (2).  The High Court has taken into consideration  an
anomalous situation that would arise by a candidate belonging to  one  party
being declared elected after having crossed the floor.  We are in  agreement
with the High Court and we do not intend to interfere  with  the  discretion
exercised by the High Court.

For the aforesaid reasons, the Civil Appeal is dismissed.  No  order  as  to
costs.

                      .…............................J.
                 [ANIL R. DAVE]


                                          ................................J.
                             [L. NAGESWARA RAO]

New Delhi,
October 28, 2016

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