* Author
[2024] 4 S.C.R. 394 : 2024 INSC 289
Karikho Kri
v.
Nuney Tayang and Another
(Civil Appeal No. 4615 of 2023)
09 April 2024
[Aniruddha Bose and Sanjay Kumar,* JJ.]
Issue for Consideration
In the year 2019, appellant-KK an independent candidate emerged
victorious in Arunachal Pradesh Legislative Assembly from 44 Tezu
(ST) Assembly Constituency. The issue arising for consideration
is as to the validity of the High Court’s findings that grounds u/ss.
100(1)(b), 100(1)(d)(i) and 100(1)(d)(iv) of the Representation of
the People Act, 1951 were established, warranting invalidation of
the election of KK.
Headnotes
Representation of the People Act, 1951 – ss. 100(1)(b), 100(1)
(d)(i), 123 – Election – Filing of nomination – Submission of
material particulars – Non-disclosure of three vehicles – High
Court held non-disclosure of vehicles as corrupt practice –
Correctness:
Held: The High Court was of opinion that appellant’s failure
to disclose the three vehicles (two scooty and van), that stood
registered in the names of his dependent family members, amounted
to a corrupt practice – The High Court assumed that the nondisclosure of a vehicle registered in the name of a candidate or
his dependent family members was sufficient in itself to constitute
undue influence – One scooty was in name of wife of the appellant,
DW5 deposed that he had taken this vehicle as scrap and sold
it to DW6 – DW6 confirmed the same – In relation to other two
vehicles in question, there were actual documents of conveyance
and also proof of the requisite forms prescribed under the Motor
Vehicles Act, 1988 being duly filled in by wife and son of appellant
– Form No. 29, relating to notice of ownership transfer of a vehicle
by the registered owner, viz., the transferor, was issued in respect
of each of these vehicles but despite the same, the transferees
did not do the needful to get their own names registered as the
owners – Once it is accepted that the three vehicles in question
[2024] 4 S.C.R. 395
Karikho Kri v. Nuney Tayang and Another
were either gifted or sold before the filing of the nomination by
KK, the said vehicles cannot be considered to be still owned by
KK’s wife and son for purposes other than those covered by the
Act of 1988 – However, the High Court did not take note of this
distinguishing factor in the case on hand – The vehicles were
not owned and possessed in praesenti by the dependent family
members of KK at the time of the filing of his nomination – Nondisclosure of three vehicles cannot be held against KK – Such
non-disclosure cannot be treated as an attempt on his part to
unduly influence the voters, thereby inviting the wrath of Section
123(2) of the Act of 1951. [Paras 20,21,22,25,27,28]
Representation of the People Act, 1951 – Election – Filing of
nomination – Non-disclosure of three vehicles – Vehicles sold/
gifted – The High Court was of the opinion that, notwithstanding
vehicles were sold/gifted, these vehicles continued to stand
in the names of the dependent wife and son of KK – In
consequence, upon considering the provisions of the Motor
Vehicles Act, 1988 and the decision of the Supreme Court in
Naveen Kumar v. Vijay Kumar and others [2018] 2 SCR 572,
it was held that vehicles were owned by the dependent wife
and son of KK but they were not disclosed in the Affidavit in
Form No. 26 filed by him – Correctness:
Held: The High Court overlooked the fact that the above judgment
(Naveen Kumar v. Vijay Kumar and others) was rendered in the
context of and for the purposes of the Act of 1988 and not for
general application – The judgment itself made it clear that despite
the sale/transfer of the vehicle in question, a claimant or claimants
should not be made to run from pillar to post to find out who was
the owner of the vehicle as on the date of the accident, if the
sale/transfer was not carried out in their books by the authorities
concerned by registering the name of the subsequent owner, be
it for whatever reason – Further, vehicles being goods, their sale
would be covered by the provisions of the Sale of Goods Act, 1930,
and the same make it clear that conveyance of ownership of the
vehicle would stand concluded upon execution of the document of
sale/transfer and registration of the new owner by the authorities
concerned would be a post-sale event – Mere failure to get
registered the name of the new owner of an already registered
vehicle does not mean that the sale/gift transaction would stand
invalidated and such a vehicle, despite being physically handed
over to the new owner, cannot, by any stretch of imagination, be
396 [2024] 4 S.C.R.
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treated as still being in the possession and control of the former
owner.[Paras 23, 27]
Representation of the People Act, 1951 – ss. 100(1)(b), 100(d)
(i) – Election – Filing of nomination – Submission of material
particulars – Non-submission of the ‘No Dues Certificate’
in respect of the Government accommodation occupied by
appellant during his earlier tenure as an MLA was held against
him – High Court held that his nomination was defective and
in consequence, the acceptance by the Returning Officer was
improper – Correctness:
Held: In the case on hand, it is not in dispute that there were
no actual outstanding dues payable by KK in relation to the
government accommodation occupied by him earlier – His failure
in disclosing the fact that he had occupied such accommodation
and in filing the ‘No Dues Certificate’ in that regard, with his
nomination form, cannot be said to be a defect of any real import
– More so, as he did submit the relevant documents of 2014
after an objection was raised before the Returning Officer – His
explanation that he submitted such Certificates in the year 2014
when he stood for re-election as an MLA is logical and worthy
of acceptance – The most important aspect to be noted is that
there were no actual dues and the failure of KK to disclose that
he had been in occupation of government accommodation during
the years 2009 to 2014 cannot be treated as a defect that is of
substantial character so as to taint his nomination and render its
acceptance improper. [Para 42]
Representation of the People Act, 1951 – Election – Filing of
nomination – Non-disclosure of taxes due – The High Court
held that non-disclosure of the taxes due and payable by KK
and his wife was a defect of substantial character and the
same tainted his nomination:
Held: The failure on the part of KK to disclose the dues of municipal/
property taxes payable by him and his wife, the same cannot be
held to be a non-disclosure, inasmuch as he did disclose the
particulars of such dues in one part of his Affidavit but did not do
so in another part. [Para 49]
Representation of the People Act, 1951 – Election – Filing
of nomination – Whether every defect in the nomination can
straightaway termed to be of such character as to render its
acceptance improper:
[2024] 4 S.C.R. 397
Karikho Kri v. Nuney Tayang and Another
Held: Every defect in the nomination cannot straightaway be termed
to be of such character as to render its acceptance improper and
each case would have to turn on its own individual facts, insofar
as that aspect is concerned – This Court has always drawn a
distinction between non-disclosure of substantial issues as opposed
to insubstantial issues, which may not impact one’s candidature or
the result of an election – The very fact that Section 36(4) of the Act
of 1951 speaks of the Returning Officer not rejecting a nomination
unless he is of the opinion that the defect is of a substantial nature
demonstrates that this distinction must always be kept in mind and
there is no absolute mandate that every non-disclosure, irrespective
of its gravity and impact, would automatically amount to a defect
of substantial nature, thereby materially affecting the result of the
election or amounting to ‘undue influence’ so as to qualify as a
corrupt practice. [Para 40]
Representation of the People Act, 1951 – Voter’s right to know
– Absolute or not:
Held: A blanket proposition that a candidate is required to lay
his life out threadbare for examination by the electorate is not
accepted – His ‘right to privacy’ would still survive as regards
matters which are of no concern to the voter or are irrelevant to
his candidature for public office – In that respect, non-disclosure of
each and every asset owned by a candidate would not amount to
a defect, much less, a defect of a substantial character – It is not
necessary that a candidate declare every item of movable property
that he or his dependent family members owns, unless the same
is of such value as to constitute a sizeable asset in itself or reflect
upon his candidature, in terms of his lifestyle, and require to be
disclosed – Every case would have to turn on its own peculiarities
and there can be no hard and fast or straitjacketed rule as to when
the non-disclosure of a particular movable asset by a candidate
would amount to a defect of a substantial character. [Para 44]
Representation of the People Act, 1951 – s.100(1)(d)(iv) –
Election invalidation under:
Held: In the instant case, the High Court linked all the nondisclosures attributed to KK to s.100(1)(d)(i) of the Act of 1951 but
ultimately concluded that his election stood invalidated u/s. 100(1)
(d)(iv) thereof – There is no discussion whatsoever on what were
the violations which qualified as non-compliance with the provisions
of either the Constitution or the Act of 1951 or the rules and orders
398 [2024] 4 S.C.R.
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framed thereunder, for the purposes of s.100(1)(d)(iv), and as to
how the same materially affected the result of the election – For
the election petitioner to succeed on such ground, viz., s.100 (1)(d)
(iv), he has not only to plead and prove the breach but also show
that the result of the election, insofar as it concerned the returned
candidate, has been materially affected thereby – Though there
are some general references to non-compliance with particular
provisions of the Act of 1951 and the rules made thereunder, there
are neither adequate pleadings nor proof to substantiate and satisfy
the requirements of s.100(1)(d)(iv) of the Act of 1951 – Therefore,
it is clear that NT (unsuccessful candidate) tied up the improper
acceptance of KK nomination, relatable to s.100(1)(d)(i) of the
Act of 1951, with the non-compliance relatable to s.100(1)(d)(iv)
thereof and he did not sufficiently plead or prove a specific breach
or how it materially affected the result of the election, in so far as
it concerned the returned candidate, KK – It was not open to NT
to link up separate issues and fail to plead in detail and adduce
sufficient evidence in relation to the non-compliance that would
attract s.100(1)(d)(iv) of the Act of 1951 – The finding of the High
Court in that regard is equally bereft of rhyme and reason and
cannot be sustained. [Paras 45, 46, 48]
Case Law Cited
Hari Vishnu Kamath v. Syed Ahmad Ishaque and others
[1955] 1 SCR 1104 : (1954) 2 SCC 881; Association for
Democratic Reforms and another v. Union of India and
others [2024] 3 SCR 417 : WP (C) No. 880 of 2017,
decided on 15.02.2024 – followed.
Naveen Kumar v. Vijay Kumar and others [2018] 2
SCR 572 : (2018) 3 SCC 1; Santosh Yadav v. Narender
Singh [2001] Supp. 4 SCR 545 : (2002) 1 SCC 160;
Harsh Kumar v. Bhagwan Sahai Rawat and others
(2003) 7 SCC 709; Commissioner of Commercial Taxes,
Thiruvananthapuram, Kerala v. K.T.C. Automobiles
[2016] 1 SCR 994 : (2016) 4 SCC 82; Surendra Kumar
Bhilawe v. New India Assurance Co. Ltd. [2020] 7 SCR
39 : (2020) 18 SCC 224; Kisan Shankar Kathore v. Arun
Dattatray Sawant and others [2014] 7 SCR 258 : (2014)
14 SCC 162; Vashist Narain Sharma v. Dev Chandra
and others [1955] 1 SCR 509 : (1954) 2 SCC 32; Kamta
Prasad Upadhyaya v. Sarjoo Prasad Tiwari and others
[2024] 4 S.C.R. 399
Karikho Kri v. Nuney Tayang and Another
(1969) 3 SCC 622; Arjun Panditrao Khotkar v. Kailash
Kushanrao Gorantyal and others [2020] 7 SCR 180 :
(2020) 7 SCC 1; Madiraju Venkata Ramana Raju v.
Peddireddigari Ramachandra Reddy and others [2018]
9 SCR 164 : (2018) 14 SCC 1; Resurgence India v.
Election Commission of India and another [2013] 9 SCR
360 : (2014) 14 SCC 189; Union of India v. Association
for Democratic Reforms and another [2002] 3 SCR 696 :
(2002) 5 SCC 294; Lok Prahari through its General
Secretary S.N. Shukla v. Union of India and others [2018]
2 SCR 892 : (2018) 4 SCC 699; S. Rukmini Madegowda
v State Election Commission and others [2022] 12 SCR
1 : (2022) SCC OnLine SC 1218; Mairembam Prithviraj
alias Prithviraj Singh v. Pukhrem Sharatchandra Singh
[2016] 9 SCR 687 : (2017) 2 SCC 487; People’s Union
for Civil Liberties (PUCL) and another v. Union of India
and another [2003] 2 SCR 1136 : (2003) 4 SCC 399;
Sambhu Prasad Sharma v. Charandas Mahant [2012]
6 SCR 356 : (2012) 11 SCC 390; Mangani Lal Mandal
v. Bishnu Deo Bhandari [2012] 1 SCR 527 : (2012) 3
SCC 314; L.R. Shivaramagowda and others v. T.M.
Chandrashekar (Dead) by LRs and others [1998] Supp.
3 SCR 241 : (1999) 1 SCC 666 – referred to.
List of Acts
Representation of the People Act, 1951; Constitution of India.
List of Keywords
Election; Nomination; Disclosure of material particulars; Disclosure
of vehicles; Ownership transfer of vehicle; Corrupt practice; Undue
influence; Government accommodation; Non-due certificate;
Defective nomination; Dues of municipal/property taxes; Improper
acceptance; Election invalidation; Voter’s right to know.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4615 of 2023
From the Judgment and Order dated 17.07.2023 of the Gauhati High
Court at Itanagar Bench in Election Petition No. 01 (AP) of 2019
With
Civil Appeal No. 4716 of 2023
400 [2024] 4 S.C.R.
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Appearances for Parties
C.A. Sundaram, Arunabh Chowdhury, Sr. Advs., Simranjeet Singh,
Pulkit Gupta, Gautam Talukdar, Raushal Kumar, Ms. Apurbaa Dutta,
Lovenish Jagdhane, Zafar Inayat, Amol Chitale, Mrs. Pragya Baghel,
Mrs. Ranjeeta Rohatgi, Vishal Banshal, Karma Dorjee, Abhishek
Roy, Dechen W Lachungpa, Advs. for the Appellant.
Dr. Sushil Balwada, Mrs. Pragya Baghel, Ms. Tatini Basu, Boboy
Potsangbam, Gamso Billai, Kumar Shashank, Byrapaneni Suyodhan,
Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
Sanjay Kumar, J
1. In the year 2019, Karikho Kri, an independent candidate, Dr.
Mohesh Chai, candidate of the Bharatiya Janata Party, and Nuney
Tayang, candidate of the Indian National Congress, contested
the election to the Arunachal Pradesh Legislative Assembly from
44 Tezu (ST) Assembly Constituency. The election was held on
11.04.2019 and Karikho Kri emerged victorious with 7538 votes,
while Dr. Mohesh Chai secured 7383 votes and Nuney Tayang
secured 1088 votes.
2. Nuney Tayang filed Election Petition No. 01(AP) of 2019 before the
Itanagar Bench of the High Court of Assam, Nagaland, Mizoram
and Arunachal Pradesh, seeking a declaration that the election of
Karikho Kri was void on the grounds mentioned in Sections 100(1)
(b), 100(1)(d)(i) and 100(1)(d)(iv) of the Representation of the
People Act, 1951 (for brevity, ‘the Act of 1951’). He also sought a
consequential declaration that he stood duly elected from the said
constituency.
3. By judgment and order dated 17.07.2023, a learned Judge of the
Itanagar Bench of the High Court allowed the election petition in
part, declaring the election of Karikho Kri void under Sections 100(1)
(b), 100(1)(d)(i) and 100(1)(d)(iv) of the Act of 1951, but rejecting
the prayer of Nuney Tayang to declare him duly elected, as he
had not led any evidence to prove the allegations levelled by him
against Dr. Mohesh Chai, the candidate with the second highest
number of votes.
[2024] 4 S.C.R. 401
Karikho Kri v. Nuney Tayang and Another
4. Aggrieved thereby, Karikho Kri filed Civil Appeal No. 4615 of 2023
before this Court and Nuney Tayang filed Civil Appeal No. 4716 of
2023. These appeals were filed under Section 116A of the Act of 1951
5. While ordering notice in both the appeals on 31.07.2023, in exercise
of power under Section 116B(2) of the Act of 1951, this Court directed
that an election should not be held for the subject Constituency
which was represented by Karikho Kri and permitted him to enjoy
all the privileges as a Member of the House and of the constituted
committees but restrained him from casting his vote on the floor of
the House or in any of the committees wherein he participated as
an MLA.
6. Thereafter, during the course of the hearing of these appeals, Karikho
Kri filed I.A. No. 73161 of 2024, as a fresh schedule for election to
the Legislative Assembly of the State of Arunachal Pradesh was
notified on 16.03.2024 and he wished to contest in the election that
is proposed to be held on 19.04.2024. He sought leave to contest
as a candidate in the upcoming assembly election in the State of
Arunachal Pradesh during the pendency of this appeal. By order
dated 20.03.2024, this Court opined that a strong prima facie case
had been made out by him and, in the light of the said fact, stayed
the operation of the impugned judgment. This Court also made it
clear that any steps taken by Karikho Kri in view of the stay order
would be subject to the final decision that would be taken upon
conclusion of the hearing of these appeals.
7. In his election petition, Nuney Tayang claimed that the nomination
submitted by Karikho Kri was improperly accepted by the Returning
Officer, Tezu, as he did not disclose material particulars in his Affidavit
filed in Form No.26 appended to the Conduct of Elections Rules,
1961. The High Court framed nine issues for determination in the
election petition and ultimately held against Karikho Kri on Issue
Nos. 1 (in part), 4, 5, 6 (in part), 7 and 8. Issue No.9 pertained to the
relief claimed by Nuney Tayang. The relevant ‘Issues’ read as under:
‘1. Whether there has been a non-disclosure of
ownership of Hero Honda CD Dawn Motorcycle
owned by the returned candidate, Shri Karikho
Kri bearing registration No. AR-11-2446; Kinetic
Zing Scooty owned by the wife of the returned
candidate, Smti. Bagilu Kri bearing registration No.
402 [2024] 4 S.C.R.
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AR-11-4474; Van, Maruti Omni Ambulance owned
by the wife of the returned candidate, Smti. Bagilu
Kri bearing registration No. AR-11A-3100 and TVS
Star City Motorcycle owned by Shri Goshinso Kri,
the son of the returned candidate Shri Karikho Kri
bearing registration No. AR- 11-6581, as is required
to be disclosed under Clause 7(vi) of the Conduct
of Election Rules, 1961, rendering the nomination of
the returned candidate invalid?
4. Whether there has been a non-submission of no
dues certificate with regard to Electricity Charges
required to be submitted under Clause 8(ii)(b) of
Form No. 26 of the Conduct of Election Rules, 1961,
as the respondent No. 1 was in occupation of MLA
Cottage No. 1 at ‘E’ Sector, Itanagar, from the year,
2009- 2014, while the respondent No. 1 was an MLA
of Tezu (ST) Assembly Constituency during the year,
2009-2014?
5. Whether the statements made by the respondent No.
1 about the liability of himself and his wife in respect
of Municipal Tax, Property Tax, due and grand total of
all govt. dues against Serial No. 6 & 8 of the table in
Para-8(A) of the affidavit in Form No. 26 appended
to the nomination paper of the respondent No. 1
has rendered the nomination of respondent No. 1,
defective?
6. Whether the non-disclosure of assets both movable
and immovable belonging to the respondent No. 1,
his wife, his mother and his two sons in the affidavit
in Form No. 26 appended to the nomination paper
amounted to commission of corrupt practice of undue
influence within the meaning of Section 123(2) of the
Representation of the People Act, 1951?
7. Whether the election of respondent No. 1 to the
44- Tezu(ST) Assembly Constituency is liable to
be declared void under Section 100(1)(d)(i) of the
Representation of the People Act, 1951?
[2024] 4 S.C.R. 403
Karikho Kri v. Nuney Tayang and Another
8. Whether the nature of non-disclosure alleged by the
Election petitioner is of a substantial nature effecting
the election of the returned candidate/respondent
No. 1?
9. What consequential relief the petitioner is entitled
to, if any?’
8. Nuney Tayang examined 7 witnesses, including himself as PW7.
Karikho Kri examined 39 witnesses, including himself as DW1A. Dr.
Mohesh Chai did not choose to contest the case before the High Court,
despite service of notice. Before us, however, he is duly represented
by learned counsel and also filed his replies in both the appeals.
9. The High Court held against Karikho Kri on Issue No 1, in relation to
three out of the four vehicles, viz., the Kinetic Zing Scooty bearing
No. AR-11/4474 and the Maruti Omni Van bearing No. AR-11A/3100,
both registered in the name of Bagilu Kri, his wife, and the TVS Star
City Motorcycle bearing No. AR-11/6851, registered in the name of
Goshinso Kri, his second son. The High Court was of the opinion that,
notwithstanding the sale of the Kinetic Zing Scooty bearing No. AR11/4474 in 2009 and the Maruti Omni Van bearing No. AR-11A/3100
in the year 2017 and the gifting of the TVS Star City Motorcycle
bearing No. AR-11/6851 in 2014, these vehicles continued to stand
in the names of Bagilu Kri and Goshinso Kri, the dependent wife
and son of Karikho Kri, on the relevant date. Upon considering the
provisions of the Motor Vehicles Act, 1988 (for brevity, ‘the Act of
1988’) and the decision of this Court in Naveen Kumar vs. Vijay
Kumar and others1
, the High Court concluded that the person in
whose name the motor vehicle stood registered should be treated as
the owner thereof. In consequence, it was held that, as on the date
of presentation of his nomination on 22.03.2019 and its scrutiny on
26.03.2019, the above three vehicles were owned by the dependent
wife and son of Karikho Kri but they were not disclosed in the Affidavit
in Form No. 26 filed by him.
10. On Issue No. 4 with regard to non-submission of a ‘No Dues
Certificate’ in the context of electricity and water charges, etc., that
was required to be submitted under Clause 8(ii)(B) of Form No. 26,
1 [2018] 2 SCR 572 : (2018) 3 SCC 1
404 [2024] 4 S.C.R.
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the High Court noted that Karikho Kri had occupied government
accommodation in MLA Cottage No.1 at ‘E’ Sector, Itanagar, from
2009 to 2014, as the MLA of Tezu (ST) Assembly Constituency during
those years. According to Karikho Kri, he lost the election in 2014
and vacated the said accommodation. He claimed that when he
filed his nomination for the Assembly Election in 2014, he obtained
a ‘No Dues Certificate’ after clearing the dues and submitted it. As
there were no outstanding dues thereafter and he did not occupy
government accommodation, he stated that he did not disclose the
same. As Karikho Kri admitted such non-disclosure in his Affidavit in
Form No. 26, the High Court held against him on this count.
11. As regards Issue No. 5, pertaining to the liability of Karikho Kri and
his wife in respect of their dues of municipal and property taxes,
the High Court found that Karikho Kri had disclosed the taxes due
and payable by him and his wife in one part of the Affidavit in Form
No.26 submitted by him, but failed to do so in another part thereof.
He disclosed the dues in Part A, Clause 8 (vi) and (viii), but failed to
disclose it in Clause 9 in Part B. Though the High Court held against
Karikho Kri even on this count, Mr. Arunabh Chowdhury, learned
senior counsel, appearing for Nuney Tayang, fairly stated that he
would not be pressing this ground as there was disclosure of the
dues at least in one part of the Affidavit in Form No. 26.
12. As regards Issue No. 6, i.e., whether non-disclosure of the three
vehicles, registered in the names of his dependent wife and second
son, by Karikho Kri in his Affidavit in Form No. 26 amounted to
commission of a corrupt practice as per Section 123(2) of the Act
of 1951, the High Court referred to case law and held that such
non-disclosure amounted to a corrupt practice within the meaning
of Section 123(2) of the Act of 1951.
13. The High Court then considered Issue No. 7, i.e., whether the election
of Karikho Kri was liable to be declared void under Section 100(1)
(d)(i) of the Act of 1951 and opined that when the nomination of the
returned candidate was shown to have been improperly accepted
by the Returning Officer, there is no necessity to further prove that
the election was ‘materially affected’. As the High Court was of the
opinion that the nomination of Karikho Kri had, in fact, been improperly
accepted by the Returning Officer, Tezu, his election was held liable
to be declared void under Section 100(1)(d)(i) of the Act of 1951.
[2024] 4 S.C.R. 405
Karikho Kri v. Nuney Tayang and Another
14. On Issue No. 8 - as to whether the non-disclosures by Karikho Kri were
of a substantial nature affecting his election, the High Court observed
that disclosure of information as per Form No. 26 of the Conduct of
Election Rules, 1961, was fundamental to the concept of free and fair
elections and, therefore, the solemnity thereof could not be ridiculed
by offering incomplete information or suppressing material information,
resulting in disinformation and misinformation to the voters.
15. Coming to Issue No. 9, i.e., as to what consequential relief Nuney
Tayang would be entitled to, if any, the High Court noted that Nuney
Tayang had secured the least number of votes out of the three
candidates and though he made allegations to the effect that Dr.
Mohesh Chai had failed to disclose the properties belonging to his
mother in his Affidavit in Form No. 26, the High Court found that Nuney
Tayang had failed to lead any evidence in proof of this statement
and, as such, there was no material to hold that Dr. Mohesh Chai’s
mother was even his dependent. On that basis, the High Court held
that no judgment could be pronounced against Dr. Mohesh Chai,
solely on the basis of the pleadings and allegations made by Nuney
Tayang in his election petition. In consequence, Nuney Tayang was
held disentitled to relief by way of a declaration that he had been
duly elected from 44 Tezu (ST) Assembly Constituency.
16. It is well-settled that the success of a winning candidate at an
election should not be lightly interfered with (See Santosh Yadav
vs. Narender Singh2 and Harsh Kumar vs. Bhagwan Sahai Rawat
and others3
). The issue before us presently is as to the validity of
the High Court’s findings that the grounds under Sections 100(1)(b),
100(1)(d)(i) and 100(1)(d)(iv) of the Act of 1951 were established,
warranting invalidation of the election of Karikho Kri. Further, the
finding of the High Court on Issue No. 6, that Karikho Kri committed
a ‘corrupt practice’ within the meaning of Section 123(2) of the Act
of 1951 also requires to be examined.
17. Section 33 of the Act of 1951 deals with ‘presentation of nomination
papers and the requirements for a valid nomination’. Scrutiny of such
nominations is undertaken by the Returning Officers under Section 36
of the Act of 1951. To the extent relevant, Section 36 reads as under:
2 [2001] Supp. 4 SCR 545 : (2002) 1 SCC 160
3 (2003) 7 SCC 709
406 [2024] 4 S.C.R.
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‘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 thinks necessary, reject any nomination on any of the
following grounds:—
(a) ….. or
(b) ….. or
(c) …..
3 .…..
4. The returning officer shall not reject any nomination
paper on the ground of any defect which is not of a
substantial character.
5. …..
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. …..
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.
[2024] 4 S.C.R. 407
Karikho Kri v. Nuney Tayang and Another
18. In terms of Section 36(4) above, a Returning Officer is under a
mandate not to reject a nomination paper for a defect unless it is of
substantial character. Significantly, Nuney Tayang raised objections
to the candidature of Karikho Kri by way of his written representation
dated 26.03.2019. Therein, he raised the issue of non-submission of
a ‘No Dues Certificate’ in respect of the government accommodation
occupied by Karikho Kri during his tenure as an MLA from 2009 to
2014. He also raised the issue of non-disclosure of the vehicles,
mentioned in Issue No. 1. By his reply dated 26.03.2019, Karikho
Kri informed the Returning Officer, Tezu, that the vehicles, viz., the
Kinetic Zing Scooty and the Maruti Omni Van standing in the name
of his wife had already been disposed of as was the TVS Star City
Motorcycle standing in the name of his dependent second son, which
had been gifted away. As regards the non-submission of a ‘No Dues
Certificate’, Karikho Kri asserted that there were no outstanding
dues against any government accommodation in his name. Karikho
Kri submitted documents with his explanation, including those
pertaining to the transfer of the vehicles in question as well as the
‘No Dues Certificates’ of 2014. Thereafter, Karikho Kri filed before
the High Court, Certificates issued in 2019 by the Bharat Sanchar
Nigam Limited; the Department of Power, Government of Arunachal
Pradesh; and the Legislative Assembly Secretariat, Arunachal
Pradesh, confirming that there were no outstanding dues. In effect
and in fact, there were no dues payable by Karikho Kri in relation to
the Government accommodation occupied by him earlier.
19. In any event, it appears that the Returning Officer concerned, being
satisfied with the explanation and documents submitted by Karikho
Kri, accepted his nomination. No doubt, this preliminary exercise on
the part of the Returning Officer did not preclude the Election Tribunal,
viz., the High Court, from examining as to whether the acceptance
of Karikho Kri’s nomination was improper and, in consequence,
whether it would have an impact on his election under the relevant
provisions of the Act of 1951. Section 100(1) thereof enumerates
the grounds on which an election can be invalidated. To the extent
relevant, it reads as under:
‘100. Grounds for declaring election to be void:-
(1) Subject to the provisions of sub-section (2) if the High
Court is of opinion—
408 [2024] 4 S.C.R.
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(a) …..; 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)…..; 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 of any nomination,
or
(ii) by any corrupt practice committed in the interests
of the returned candidate by an agent other than
his election agent, or
(iii) by the improper reception, refusal or rejection
of any vote or the reception of any vote which
is void, or
(iv) by any non-compliance with the provisions of
the Constitution or of this Act or of any rules or
orders made under this Act, the High Court shall
declare the election of the returned candidate
to be void.’
20. The High Court held against Karikho Kri not only under Sections
100(1)(d)(i) and (iv) but also under Section 100(1)(b) of the Act of
1951, as it was of the opinion that his failure to disclose the three
vehicles, that still stood registered in the names of his dependent
family members, amounted to a corrupt practice. Insofar as Section
100(1)(b) of the Act of 1951 is concerned, the requirement thereof
for the purpose of invalidating the election of the returned candidate
is that the High Court must form an opinion that a ‘corrupt practice’
was committed by the returned candidate or his election agent or any
other person with the consent of the returned candidate or his election
agent. Section 123 of the Act of 1951 inclusively defines ‘corrupt
practices’, by stating that what have been enumerated thereunder
shall be deemed to be corrupt practices for the purposes of the Act
of 1951. Insofar as the present case is concerned, Section 123(2)
of the Act of 1951 is of relevance. This provision reads as under:
[2024] 4 S.C.R. 409
Karikho Kri v. Nuney Tayang and Another
‘123. Corrupt practices.—
The following shall be deemed to be corrupt practices for
the purposes of this Act:—
……
(2) Undue influence, that is to say, any direct or indirect
interference or attempt to interfere on the part of the
candidate or his agent, or of any other person with the
consent of the candidate or his election agent, with the
free exercise of any electoral right:
……’
21. The High Court opined that non-disclosure of the Kinetic Zing
Scooty and the Maruti Omni Van that had belonged to Bagilu Kri
and the TVS Star City Motorcycle that had belonged to Goshinso
Kri, the dependent wife and son of Krikho Kri, was sufficient in itself
to constitute ‘undue influence’, thereby attracting Section 123(2) of
the Act of 1951. However, what is of significance is that the High
Court did not doubt that these vehicles had been sold or gifted long
before the submission of the nomination by Karikho Kri in 2019.
This is clear from the observations in Para 13 (xiii) of the judgment,
wherein the High Court observed: ‘….at the time of presentation of
nomination paper of respondent No. 1, and on the date of scrutiny of
the nomination paper on 26.03.2019, notwithstanding the aforesaid
vehicles were gifted/sold to other persons by Smti. Bagilu Kri, wife of
respondent No. 1 as well as Shri. Goshinso Kri, son of respondent No.
1; it has now become imperative to decide as to who was the owner
of the aforesaid vehicles at the time presentation of the nomination
paper by the respondent No. 1, and on the date of scrutiny of the
nomination paper on 26.03.2019’. This finding of the High Court has
attained finality as Nuney Tayang did not choose to challenge the
same before this Court.
22. Though it appears that the three vehicles in question still remained
registered in the names of the wife and son of Karikho Kri, the question
that arises is as to whether non-disclosure of such vehicles justified
the attributing of a corrupt practice to Karikho Kri and the negating
of his election on that ground. The High Court assumed that the
non-disclosure of a vehicle registered in the name of a candidate or
his dependent family members was sufficient in itself to constitute
410 [2024] 4 S.C.R.
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undue influence. In this context, the High Court placed reliance on
the provisions of the Act of 1988 and the decision of this Court in
Naveen Kumar (supra). Section 2(30) of the Act of 1988 defines
the owner of a vehicle as under:
‘ “owner” means a person in whose name a motor vehicle
stands registered, and where such person is a minor, the
guardian of such minor, and in relation to a motor vehicle
which is the subject of a hire-purchase, agreement, or an
agreement of lease or an agreement of hypothecation, the
person in possession of the vehicle under that agreement;’
In Naveen Kumar (supra), a 3-Judge Bench of this Court was
dealing with the issue as to who would be the owner of an offending
vehicle in the context of the Act of 1988 when a claim arises from
an accident involving the said vehicle. ‘Owner’, as defined under
Section 2(30) of the Act of 1988, was considered and it was opined
that the person in whose name a vehicle stands registered would
be the owner of the vehicle for the purposes of the Act. Reference
was made to Section 50 of the Act of 1988, which deals with transfer
of ownership, and to various earlier decisions in that regard and it
was observed thus:
‘13. The consistent thread of reasoning which emerges
from the above decisions is that in view of the definition
of the expression “owner” in Section 2(30), it is the person
in whose name the motor vehicle stands registered who,
for the purposes of the Act, would be treated as the
“owner”..……In a situation such as the present where the
registered owner has purported to transfer the vehicle but
continues to be reflected in the records of the Registering
Authority as the owner of the vehicle, he would not stand
absolved of liability. Parliament has consciously introduced
the definition of the expression “owner” in Section 2(30),
making a departure from the provisions of Section 2(19) in
the earlier 1939 Act. The principle underlying the provisions
of Section 2(30) is that the victim of a motor accident or, in
the case of a death, the legal heirs of the deceased victim
should not be left in a state of uncertainty. A claimant for
compensation ought not to be burdened with following
a trail of successive transfers, which are not registered
[2024] 4 S.C.R. 411
Karikho Kri v. Nuney Tayang and Another
with the Registering Authority. To hold otherwise would
be to defeat the salutary object and purpose of the Act.
Hence, the interpretation to be placed must facilitate the
fulfilment of the object of the law. In the present case, the
first respondent was the “owner” of the vehicle involved
in the accident within the meaning of Section 2(30). The
liability to pay compensation stands fastened upon him.
Admittedly, the vehicle was uninsured.’
(emphasis is ours)
23. Notably, the High Court overlooked the fact that the above judgment
was rendered in the context of and for the purposes of the Act of
1988 and not for general application. The judgment itself made
it clear that despite the sale/transfer of the vehicle in question, a
claimant or claimants should not be made to run from pillar to post
to find out who was the owner of the vehicle as on the date of the
accident, if the sale/transfer was not carried out in their books by
the authorities concerned by registering the name of the subsequent
owner, be it for whatever reason. Further, vehicles being goods,
their sale would be covered by the provisions of the Sale of Goods
Act, 1930 (for brevity, ‘the Act of 1930’), and the same make it clear
that conveyance of ownership of the vehicle would stand concluded
upon execution of the document of sale/transfer and registration of
the new owner by the authorities concerned would be a post-sale
event. Section 2(7) of the Act of 1930 defines goods, inter alia, to
mean every kind of movable property, other than actionable claims
and money. Chapter III of the Act of 1930 is titled ‘Effects of the
Contract’ and ‘Transfer of property as between seller and buyer’.
Section 18 therein states that where there is a contract for the sale
of unascertained goods, no property in the goods is transferred to
the buyer unless and until the goods are ascertained. Section 19,
however, states that the property passes when intended to pass and
elaborates that, where there is a contract for the sale of specific or
ascertained goods, the property in them is transferred to the buyer
at such time as the parties to the contract intend it to be transferred.
24. In Commissioner of Commercial Taxes, Thiruvananthapuram,
Kerala vs. K.T.C. Automobiles4
, this Court observed that registration
4 [2016] 1 SCR 994 : (2016) 4 SCC 82
412 [2024] 4 S.C.R.
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of a motor vehicle is a post-sale event but the question would arise
as to when the property in the motor vehicle actually passed to the
buyer. That was a case involving the first sale of a motor vehicle by
the dealer to the first owner and is, therefore, distinguishable from
the subsequent sale of a vehicle, as in the case on hand. It was
observed therein that registration of a motor vehicle is a post-sale
event but only after obtaining valid registration under the Act of 1988,
a purchaser would get entitlement to use the vehicle in a public
place. It was observed that the purchaser, as an owner under the Act
of 1988, was obliged to obtain the certificate of registration, which
alone would entitle him to enjoy the possession of the vehicle by
using it in public places after meeting the other statutory obligations
of insurance, etc. This Court rejected the contention that motor
vehicles would be ‘unascertained goods’ till their engine number or
chassis number is entered in the Certificate of Registration, as the
sale invoice itself would disclose such particulars, so that the owner
of the vehicle may apply for registration of that specific vehicle in
his name. However, owing to the statutory provisions governing
motor vehicles, this Court held that an intending owner or buyer of
a motor vehicle cannot ascertain the particulars of the vehicle for
appropriating it to the contract of sale till its possession is handed
over to him after observing the requirements of the Act of 1988 and
the rules framed thereunder and such possession can be given
only at the registration office immediately preceding the registration.
Owing to the aforestated legal position, this Court held that, prior
to getting possession of the motor vehicle, the intending purchaser/
owner would not have a claim over any ‘ascertained motor vehicle’.
The observations in this judgment would, however, have to be
understood in the context of the first sale of a vehicle by the dealer,
i.e., where such vehicle has no registration whatsoever as opposed
to the subsequent sale of a registered vehicle.
25. Presently, insofar as the Scooty bearing No. AR-11/4474 is concerned,
it stood in the name of Bagilu Kri but Md. Nizammudin (DW5)
deposed that he had taken this vehicle as scrap and sold it as such
to Promod Prasad (DW6). In turn, Promod Prasad (DW6) confirmed
that he bought the Scooty as scrap from Md. Nizammudin (DW5).
During their cross-examination, nothing was elicited from these
witnesses to doubt their claims. However, letter dated 20.09.2019
addressed by the District Transport Officer, Lohit District, Tezu,
[2024] 4 S.C.R. 413
Karikho Kri v. Nuney Tayang and Another
to Bagilu Kri, manifests that the registration of the Scooty in her
name stood cancelled only at that time. The taxes in respect of this
Scooty were paid till 26.03.2022, as borne out by Treasury Challan
No. 4806 dated 30.08.2019. Though much was argued about this
payment of taxes and the fact that the receipt was issued in the
name of Bagilu Kri, we are not inclined to give any weightage to
it. The payment was made after the filing of the election petition
and any person could have done so. The receipt therefor would
automatically be generated in the name of the registered owner. We
may also note that in relation to the other two vehicles in question,
there were actual documents of conveyance and also proof of the
requisite forms prescribed under the Act of 1988 being duly filled in
and issued by Bagilu Kri and Goshinso Kri. Form No. 29, relating
to notice of ownership transfer of a vehicle by the registered owner,
viz., the transferor, was issued in respect of each of these vehicles
but despite the same, the transferees did not do the needful to get
their own names registered as the owners.
26. In Surendra Kumar Bhilawe vs. New India Assurance Co. Ltd.5
,
the issue before this Court was as to whether an insurance company
would be liable to cover the claim arising out of an accident on the
ground that the vehicle was sold to another long before the date of
the accident but the insured continued to be the registered owner
of the vehicle. Referring to the judgment of this Court in Naveen
Kumar (supra), it was observed that the policy of insurance was a
comprehensive policy which covered third-party risks as well and,
therefore, the insurer could not repudiate one part of the policy with
regard to reimbursing the owner for losses when it could not evade
liability to third parties under the same contract of insurance. In view
of the definition of ‘owner’ in Section 2(30) of the Act of 1988, this
Court observed that the registered owner of the truck, on the date
of the accident, was the insured and, therefore, the insurer could not
avoid its liability for the losses suffered by the owner, on the ground
of transfer of ownership. This Court held that it is difficult to accept
that a person who transferred the ownership of a goods vehicle, on
receipt of consideration, would not report the transfer or apply for
transfer of registration and thereby continue to incur the risks and
liabilities of ownership of the said vehicle under the provisions of law,
5 [2020] 7 SCR 39 : (2020) 18 SCC 224
414 [2024] 4 S.C.R.
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including the Act of 1988. This Court further observed that it is equally
incredible that an owner of a vehicle who has paid consideration
to acquire it would not insist on transfer of the permit and thereby
expose himself to the penal consequences of operating a goods
vehicle without a valid permit. This Court, accordingly, held that
the registered owner continues to remain the owner and when the
vehicle is insured in the name of such registered owner, the insurer
would remain liable notwithstanding the transfer. This judgment is
clearly inapplicable to the case on hand as it dealt with the liability of
an insurer in the event of an accident involving the vehicle. Further,
as already noted, the vehicles in question were transferred and
the requisite forms, insofar as the transferor was concerned, were
filled up and issued but it was the transferees who failed to get the
vehicles transferred in their own names.
27. Mere failure to get registered the name of the new owner of an already
registered vehicle does not mean that the sale/gift transaction would
stand invalidated and such a vehicle, despite being physically handed
over to the new owner, cannot, by any stretch of imagination, be treated
as still being in the possession and control of the former owner. Once
it is accepted that the three vehicles in question were either gifted or
sold before the filing of the nomination by Karikho Kri, the said vehicles
cannot be considered to be still owned by Karikho Kri’s wife and son
for purposes other than those covered by the Act of 1988. However,
the High Court did not take note of this distinguishing factor in the case
on hand. In Kisan Shankar Kathore vs. Arun Dattatray Sawant and
others6
, the vehicle, details of which had been suppressed by the
returned candidate, was actually owned and possessed by his wife
and such suppression was, accordingly, held against him. Presently,
the High Court itself concluded that the three vehicles in question were
transferred, be it by way of sale or gift. The vehicles were, therefore, not
owned and possessed in praesenti by the dependent family members
of Karikho Kri at the time of the filing of his nomination. This point of
distinction was completely lost sight of by the High Court but, in our
considered opinion, it made all the difference.
28. Therefore, non-disclosure of the three vehicles in question could not
be held against Karikho Kri in the light of the aforestated analysis.
6 [2014] 7 SCR 258 : (2014) 14 SCC 162
[2024] 4 S.C.R. 415
Karikho Kri v. Nuney Tayang and Another
Such non-disclosure cannot, by any stretch of imagination, be treated
as an attempt on his part to unduly influence the voters, thereby
inviting the wrath of Section 123(2) of the Act of 1951. We may note
that Karikho Kri had declared the value of the movable assets of
his dependent family members and himself as ₹8,41,87,815/-. The
value of the three vehicles in question, by comparison, would be a
mere miniscule of this figure. In any event, suppression of the value
of these three vehicles would have no impact on the declaration of
wealth by Karikho Kri and such non-disclosure could not be said to
amount to ‘undue influence’.
29. Coming to the next ground, if the acceptance of a nomination is found
to be improper and it materially affects the result of the election in
so far as the returned candidate is concerned, Section 100(1)(d)(i)
of the Act of 1951 would come into play. It would be appropriate and
apposite at this stage for us to take note of precedential law on this
point. In Vashist Narain Sharma vs. Dev Chandra and others7
, a
3-Judge Bench of this Court noted that the burden of proving that
the improper acceptance of a nomination has materially affected the
result of an election would arise in one of three ways: (i) 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, (ii) where
the person referred to above secured more votes, or (iii) where
the person whose nomination has been improperly accepted is the
returned candidate himself. It was held that in the first case the
result of the election would not be materially affected because if all
the wasted votes were added to the votes of the candidate securing
the next highest votes, it would make no difference to the result and
the returned candidate would retain the seat. However, in the other
two cases, the result may be materially affected and insofar as the
third case is concerned, it may be readily conceded that such would
be the conclusion.
30. In Hari Vishnu Kamath vs. Syed Ahmad Ishaque and others8
,
a Constitution Bench of 7 Judges considered the scope of enquiry
under Section 100(1)(d) of the Act of 1951. It was observed that the
7 [1955] 1 SCR 509 : (1954) 2 SCC 32
8 [1955] 1 SCR 1104 (1954) 2 SCC 881
416 [2024] 4 S.C.R.
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said provision required, before an order setting aside an election
could be made, that two conditions be satisfied. It must, firstly, be
shown that there has been improper reception or refusal of a vote
or reception of any vote which is void, or non-compliance with the
provisions of the Constitution or the Act of 1951, or any rules or
orders made thereunder, relating to the election or any mistake in
the use of the prescribed form and it must further be shown that, as
a consequence thereof, the result of the election has been materially
affected. The Bench observed that the two conditions are cumulative
and must both be established. It was further observed that the burden
of establishing them is on the person who seeks to have the election
set aside. Reference was also made to Vashist Narain (supra).
31. In Kamta Prasad Upadhyaya vs. Sarjoo Prasad Tiwari and others9
,
another 3-Judge Bench of this Court affirmed the legal position settled
by Vashist Narain (supra). Again, in Arjun Panditrao Khotkar vs.
Kailash Kushanrao Gorantyal and others10, a 3-Judge Bench of
this Court affirmed the view taken in Vashist Narain (supra) that,
where a person whose nomination has been improperly accepted is
the returned candidate himself, it may be readily conceded that the
conclusion has to be that the result of the election was ‘materially
affected’ without their being any necessity to plead and prove the
same.
32. In Madiraju Venkata Ramana Raju vs. Peddireddigari Ramachandra
Reddy and others11, another 3-Judge Bench of this Court affirmed
that if there are more than two candidates and if the nomination of
one of the defeated candidates has been improperly accepted, a
question might arise as to whether the result of the election of the
returned candidate has been materially affected by such improper
reception but that would not be so in the case of challenge to the
election of the returned candidate himself on the ground of improper
acceptance of his nomination.
33. Ergo, if acceptance of the nomination of the returned candidate is
shown to be improper, it would automatically mean that the same
materially affected the result of the election and nothing more needs
9 (1969) 3 SCC 622
10 [2020] 7 SCR 180 : (2020) 7 SCC 1
11 [2018] 9 SCR 164 : (2018) 14 SCC 1
[2024] 4 S.C.R. 417
Karikho Kri v. Nuney Tayang and Another
to be pleaded or proved. However, whether acceptance of the
nomination of Karikho Kri was actually improper is the main issue
that requires to be addressed by us.
34. We may also take note of curial wisdom on the issue as to what
would be the defects that would taint a nomination to the extent of
rendering its acceptance improper. In Resurgence India vs. Election
Commission of India and another12, a 3-Judge Bench of this
Court observed that if the Election Commission accepts nomination
papers in spite of blank particulars therein, it would directly violate
the fundamental right of the citizen to know the criminal antecedents,
assets, liabilities and educational qualifications of the candidate. It was
observed that accepting an affidavit with such blanks would rescind the
verdict in Union of India vs. Association for Democratic Reforms
and another13. In effect, the Bench held that filing of an affidavit
with blank particulars would render the affidavit nugatory. In Kisan
Shankar Kathore (supra), the issue before this Court was whether
non-disclosure of certain government dues in the nomination would
amount to a material lapse impacting the election of the returned
candidate. On facts, this Court found that the non-disclosure of
electricity and municipal dues was not a serious lapse as there was
a dispute raised in the context thereof. Having said so, this Court
clarified that it would depend upon the facts and circumstances of
each case as to whether such non-disclosure would amount to a
material lapse or not. This Court, however, found that there were,
in fact, material lapses by the returned candidate, inasmuch as he
had failed to disclose the bungalow standing in the name of his
wife and also a vehicle owned by her. Further, he had also failed to
disclose his interest/share in a partnership firm which amounted to a
very serious and major lapse. The observations of this Court, in the
context of improper acceptance of his nomination, are of relevance:
‘43.When the information is given by a candidate in
the affidavit filed along with the nomination paper and
objections are raised thereto questioning the correctness
of the information or alleging that there is non-disclosure
of certain important information, it may not be possible
12 [2013] 9 SCR 360 : (2014) 14 SCC 189
13 [2002] 3 SCR 696 : (2002) 5 SCC 294
418 [2024] 4 S.C.R.
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for the Returning Officer at that time to conduct a detailed
examination. Summary enquiry may not suffice. The present
case is itself an example which loudly demonstrates this. At
the same time, it would not be possible for the Returning
Officer to reject the nomination for want of verification about
the allegations made by the objector. In such a case, when
ultimately it is proved that it was a case of non-disclosure
and either the affidavit was false or it did not contain
complete information leading to suppression, it can be held
at that stage that the nomination was improperly accepted.
Ms Meenakshi Arora, learned Senior Counsel appearing
for the Election Commission, rightly argued that such an
enquiry can be only at a later stage and the appropriate
stage would be in an election petition as in the instant
case, when the election is challenged. The grounds stated
in Section 36(2) are those which can be examined there
and then and on that basis the Returning Officer would be
in a position to reject the nomination. Likewise, where the
blanks are left in an affidavit, nomination can be rejected
there and then. In other cases where detailed enquiry is
needed, it would depend upon the outcome thereof, in an
election petition, as to whether the nomination was properly
accepted or it was a case of improper acceptance. Once it
is found that it was a case of improper acceptance, as there
was misinformation or suppression of material i`nformation,
one can state that question of rejection in such a case was
only deferred to a later date. When the Court gives such a
finding, which would have resulted in rejection, the effect
would be same, namely, such a candidate was not entitled
to contest and the election is void. Otherwise, it would be an
anomalous situation that even when criminal proceedings
under Section 125-A of the Act can be initiated and the
selected candidate is criminally prosecuted and convicted,
but the result of his election cannot be questioned. This
cannot be countenanced.’
35. In Lok Prahari through its General Secretary S.N. Shukla vs.
Union of India and others14, this Court observed that non-disclosure
14 [2018] 2 SCR 892 : (2018) 4 SCC 699
[2024] 4 S.C.R. 419
Karikho Kri v. Nuney Tayang and Another
of assets and sources of income of candidates and their associates
would constitute a corrupt practice falling under the heading ‘undue
influence’, as defined under Section 123 (2) of the Act of 1951. In
S. Rukmini Madegowda vs. State Election Commission and
others15, a 3-Judge Bench of this Court observed that a false
declaration with regard to the assets of a candidate, his/her spouse
or dependents, would constitute a corrupt practice irrespective of its
impact on the election of the candidate as it may be presumed that
a false declaration would impact the election.
36. In Mairembam Prithviraj alias Prithviraj Singh vs. Pukhrem
Sharatchandra Singh16, this Court noted that there is a difference
between improper acceptance of the nomination of a returned
candidate as opposed to improper acceptance of the nomination of
any other candidate. It was observed that a mere finding that there
has been an improper acceptance of a nomination would not be
sufficient for a declaration that the election is void under Section
100(1)(d)(i) and 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 such proof in the
event of the nomination of the returned candidate being declared as
having been improperly accepted, especially in a case where there
are only two candidates in the fray.
37. In Association for Democratic Reforms and another vs. Union
of India and others17, a Constitution Bench affirmed that, in terms
of the earlier judgments in Association for Democratic Reforms
and another (supra) and People’s Union for Civil Liberties
(PUCL) and another vs. Union of India and another18, the right
of voters to information, which is traceable to Article 19(1)(a) of the
Constitution, is built upon the jurisprudence that information which
furthers democratic participation must be provided to citizens and
voters have a right to information which would enable them to cast
their votes rationally and intelligently because voting is one of the
foremost forms of democratic participation. It was further observed
15 [2022] 12 SCR 1 : (2022) SCC OnLine SC 1218
16 [2016] 9 SCR 687 : (2017) 2 SCC 487
17 [2024] 3 SCR 417 : W.P. (C) No. 880 of 2017, decided on 15.02.2024
18 [2003] 2 SCR 1136 : (2003) 4 SCC 399
420 [2024] 4 S.C.R.
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that voters have a right to the disclosure of information which is
‘essential’ for choosing the candidate for whom a vote should be cast.
38. In his Affidavit in Form No. 26, Karikho Kri was required to state as
to whether he had been in occupation of accommodation provided by
the Government at any time during the last 10 years before the date
of notification of the current election and, if so, he was to furnish a
declaration to the effect that there were no dues payable in respect
of the said accommodation in relation to rent, electricity charges,
water charges and telephone charges. Karikho Kri, however, failed
to disclose the fact that he had been in occupation of government
accommodation during his tenure as an MLA between 2009 and 2014.
He stated ‘Not applicable’. However, with regard to the declaration
as to there being no dues, he mentioned the date ‘22.03.2019’ and
stated that the dues in respect of rent, electricity charges, water
charges and telephone charges were ‘Nil’. After Nuney Tayang raised
an objection to his candidature on this ground, Karikho Kri filed the
requisite ‘No Due Certificates’ of 2014.
39. However, the High Court was of the opinion that the failure of
Karikho Kri to disclose the factum of his occupying government
accommodation from 2009 to 2014 and his failure to submit the ‘No
Dues Certificate’ in relation to such government accommodation was
sufficient, in itself, to infer that his nomination was defective and,
in consequence, the acceptance thereof by the Returning Officer,
Tezu, was improper.
40. Having considered the issue, we are of the firm view that every
defect in the nomination cannot straightaway be termed to be of
such character as to render its acceptance improper and each case
would have to turn on its own individual facts, insofar as that aspect
is concerned. The case law on the subject also manifests that this
Court has always drawn a distinction between non-disclosure of
substantial issues as opposed to insubstantial issues, which may
not impact one’s candidature or the result of an election. The very
fact that Section 36(4) of the Act of 1951 speaks of the Returning
Officer not rejecting a nomination unless he is of the opinion that the
defect is of a substantial nature demonstrates that this distinction
must always be kept in mind and there is no absolute mandate that
every non-disclosure, irrespective of its gravity and impact, would
automatically amount to a defect of substantial nature, thereby
[2024] 4 S.C.R. 421
Karikho Kri v. Nuney Tayang and Another
materially affecting the result of the election or amounting to ‘undue
influence’ so as to qualify as a corrupt practice.
41. The decision of this Court in Kisan Shankar Kathore (supra), also
demonstrates this principle, as this Court undertook examination of
several individual defects in the nomination of the returned candidate
and found that some of them were actually insubstantial in character.
This Court noted that two facets required consideration – Whether
there is substantial compliance in disclosing requisite information
in the affidavits filed along with the nomination and whether nondisclosure of information on identified aspects materially affected
the result of the election. This Court observed, on facts, that nondisclosure of the electricity dues in that case was not a serious
lapse, despite the fact that there were dues outstanding, as there
was a bonafide dispute about the same. Similar was the observation
in relation to non-disclosure of municipal dues, where there was
a genuine dispute as to re-valuation and re-assessment for the
purpose of tax assessment. Earlier, in Sambhu Prasad Sharma
vs. Charandas Mahant19, this Court observed that the form of
the nomination paper is not considered sacrosanct and what is
to be seen is whether there is substantial compliance with the
requirement as to form and every departure from the prescribed
format cannot, therefore, be made a ground for the rejection of the
nomination paper.
42. In the case on hand, it is not in dispute that there were no actual
outstanding dues payable by Karikho Kri in relation to the government
accommodation occupied by him earlier. His failure in disclosing
the fact that he had occupied such accommodation and in filing
the ‘No Dues Certificate’ in that regard, with his nomination form,
cannot be said to be a defect of any real import. More so, as he did
submit the relevant documents of 2014 after Nuney Tayang raised
an objection before the Returning Officer. His explanation that he
submitted such Certificates in the year 2014 when he stood for reelection as an MLA is logical and worthy of acceptance. The most
important aspect to be noted is that there were no actual dues and
the failure of Karikho Kri to disclose that he had been in occupation
of government accommodation during the years 2009 to 2014 cannot
19 [2012] 6 SCR 356 : (2012) 11 SCC 390
422 [2024] 4 S.C.R.
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be treated as a defect that is of substantial character so as to taint
his nomination and render its acceptance improper.
43. The High Court opined that the nomination of Karikho Kri was
improperly accepted by the Returning Officer as he had failed
to disclose the three vehicles in question, which continued to be
registered in the name of his dependent family members. Nonsubmission of the ‘No Dues Certificate’ in respect of the government
accommodation occupied by him during his earlier tenure as an MLA
was also held to weigh against him. Lastly, the High Court held that
non-disclosure of the taxes due and payable by Karikho Kri and
his wife was a defect of substantial character and the same tainted
his nomination. In consequence, the High Court concluded that the
acceptance of Karikho Kri’s nomination by the Returning Officer was
improper and as he was the returned candidate, the question of
pleading and proving that such improper acceptance of his nomination
materially affected the result of the election did not arise.
44. Though it has been strenuously contended before us that the voter’s
‘right to know’ is absolute and a candidate contesting the election must
be forthright about all his particulars, we are not inclined to accept
the blanket proposition that a candidate is required to lay his life out
threadbare for examination by the electorate. His ‘right to privacy’
would still survive as regards matters which are of no concern to
the voter or are irrelevant to his candidature for public office. In that
respect, non-disclosure of each and every asset owned by a candidate
would not amount to a defect, much less, a defect of a substantial
character. It is not necessary that a candidate declare every item of
movable property that he or his dependent family members owns,
such as, clothing, shoes, crockery, stationery and furniture, etc., unless
the same is of such value as to constitute a sizeable asset in itself or
reflect upon his candidature, in terms of his lifestyle, and require to
be disclosed. Every case would have to turn on its own peculiarities
and there can be no hard and fast or straitjacketed rule as to when
the non-disclosure of a particular movable asset by a candidate
would amount to a defect of a substantial character. For example, a
candidate and his family who own several high-priced watches, which
would aggregate to a huge figure in terms of monetary value, would
obviously have to disclose the same as they constitute an asset of
high value and also reflect upon his lavish lifestyle. Suppression of
the same would constitute ‘undue influence’ upon the voter as that
[2024] 4 S.C.R. 423
Karikho Kri v. Nuney Tayang and Another
relevant information about the candidate is being kept away from the
voter. However, if a candidate and his family members each own a
simple watch, which is not highly priced, suppression of the value of
such watches may not amount to a defect at all. Each case would,
therefore, have to be judged on its own facts.
45. So far as the ground under Section 100(1)(d)(iv) of the Act of 1951 is
concerned, the provision requires that the established non-compliance
with the provisions of the Constitution or the Act of 1951 or any rules
or orders made thereunder necessarily has to be shown to have
materially affected the result of the election insofar as it concerns
the returned candidate. Significantly, the High Court linked all the
non-disclosures attributed to Karikho Kri to Section 100(1)(d)(i) of
the Act of 1951 but ultimately concluded that his election stood
invalidated under Section 100(1)(d)(iv) thereof. Surprisingly, there is
no discussion whatsoever on what were the violations which qualified
as non-compliance with the provisions of either the Constitution or
the Act of 1951 or the rules and orders framed thereunder, for the
purposes of Section 100(1)(d)(iv), and as to how the same materially
affected the result of the election.
46. In Mangani Lal Mandal vs. Bishnu Deo Bhandari20, this Court held
that where a returned candidate is alleged to be guilty of non-compliance
with the provisions of the Constitution or the Act of 1951 or any rules
or orders made thereunder and his election is sought to be declared
void on that ground, it is essential for the election petitioner to aver,
by pleading material facts, that the result of the election insofar as
it concerned the returned candidate has been materially affected by
such breach or non-observance. It was further held that it is only on
the basis of such pleading and proof that the Court would be in a
position to form an opinion and record a finding that such breach or
non-compliance has materially affected the result of the election before
election of the returned candidate could be declared void. It was further
observed that mere non-compliance or breach of the Constitution or the
statutory provisions, as stated above, would not result in invalidating
the election of the returned candidate under Section 100 (1)(d)(iv) as
the sine qua non for declaring the election of a returned candidate to
be void on that ground under clause (iv) of Section 100 (1)(d) is further
20 [2012] 1 SCR 527 :(2012) 3 SCC 314
424 [2024] 4 S.C.R.
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proof of the fact that such breach or non-observance has resulted
in materially affecting the election of the returned candidate. For the
election petitioner to succeed on such ground, viz., Section 100 (1)
(d)(iv), he has not only to plead and prove the breach but also show
that the result of the election, insofar as it concerned the returned
candidate, has been materially affected thereby.
47. In L.R. Shivaramagowda and others vs. T.M. Chandrashekar
(Dead) by LRs and others21, a 3-Judge Bench of this Court pointed
out that in order to declare an election void under Section 100(1)
(d)(iv) of the Act of 1951, it is absolutely necessary for the election
petitioner to plead that the result of the election, insofar as it concerned
the returned candidate, has been materially affected by the alleged
non-compliance with the provisions of the Constitution or the Act of
1951 or the rules or orders made thereunder and the failure to plead
such material facts would be fatal to the election petition.
48. However, perusal of the election petition filed by Nuney Tayang
reflects that the only statement made by him in this regard is in
Paragraph 21 and it reads as follows:
‘……Hence, his nomination papers suffer from substantial
and material defects. As such, the result of the election,
insofar as the respondent No.1 is concerned, is materially
affected by the improper acceptance of his nomination
as well as by the non-compliance with the provisions of
the Representation of the People Act, 1951 and the rules
and orders made thereunder, including Section 33(1) of
the Representation of the People Act, 1951, Rule 4A of
the Conduct of Election Rules, 1961 and the orders made
thereunder…...’
Again, in his ‘Ground No. (ii)’, Nuney Tayang stated as under:
‘…….As such, the nomination papers of the respondent
Nos. 1 and 2 were improperly accepted by the Returning
Officer and the result of the election in question, insofar as
it concerns the respondent No.1 the return candidate, as
well as the respondent No.2, has been materially affected
by such improper acceptance of their nominations……’
21 [1998] Supp. 3 SCR 241 : (1999) 1 SCC 666
[2024] 4 S.C.R. 425
Karikho Kri v. Nuney Tayang and Another
Though there are some general references to non-compliance with
particular provisions of the Act of 1951 and the rules made thereunder,
we do not find adequate pleadings or proof to substantiate and satisfy
the requirements of Section 100(1)(d)(iv) of the Act of 1951. Therefore,
it is clear that Nuney Tayang tied up the improper acceptance of
Karikho Kri’s nomination, relatable to Section 100(1)(d)(i) of the Act
of 1951, with the non-compliance relatable to Section 100(1)(d)(iv)
thereof and he did not sufficiently plead or prove a specific breach
or how it materially affected the result of the election, in so far as it
concerned the returned candidate, Karikho Kri. It was not open to
Nuney Tayang to link up separate issues and fail to plead in detail
and adduce sufficient evidence in relation to the non-compliance that
would attract Section 100(1)(d)(iv) of the Act of 1951. The finding of
the High Court in that regard is equally bereft of rhyme and reason
and cannot be sustained.
49. As regards the failure on the part of Karikho Kri to disclose the dues
of municipal/property taxes payable by him and his wife, the same
cannot be held to be a non-disclosure at all, inasmuch as he did
disclose the particulars of such dues in one part of his Affidavit but did
not do so in another part. In any event, as Mr. Arunabh Chowdhury,
learned senior counsel, fairly stated that he would not be pressing
this ground, we need not labour further upon this point.
50. On the above analysis, we hold that the High Court was in error in
concluding that sufficient grounds were made out under Sections
100(1)(b), 100(1)(d)(i) and 100(1)(d)(iv) of the Act of 1951 to invalidate
the election of Karikho Kri and, further, in holding that non-disclosure
of the three vehicles, that still remained registered in the names of
his wife and son as on the date of filing of his nomination, amounted
to a ‘corrupt practice’ under Section 123(2) of the Act of 1951. In
consequence, we find no necessity to independently deal with Civil
Appeal No. 4716 of 2023 filed by Nuney Tayang, in the context of
denial of relief to him by the High Court, or the issues raised by Dr.
Mohesh Chai in the replies filed by him.
51. In the result, Civil Appeal No. 4615 of 2023 filed by Karikho Kri is
allowed, setting aside the Judgment and Order dated 17.07.2023
passed by the Itanagar Bench of the High Court of Assam, Nagaland,
Mizoram and Arunachal Pradesh in Election Petition No.01(AP) of
2019. In consequence, the election of Karikho Kri as the returned
426 [2024] 4 S.C.R.
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candidate from 44 Tezu (ST) Assembly Constituency of the State of
Arunachal Pradesh is upheld.
As a corollary, Civil Appeal No. 4716 of 2023, filed by Nuney Tayang,
shall stand dismissed.
Pending applications in both the appeals, if any, shall also stand
disposed of.
This decision shall be intimated to the Election Commission of India
and to the Chairman of the Legislative Assembly of the State of
Arunachal Pradesh forthwith, as required by Section 116C(2) of the
Act of 1951.
An authenticated copy of this judgment shall be sent to the Election
Commission of India forthwith.
Parties shall bear their own costs.
Headnotes prepared by: Ankit Gyan Result of the case:
Appeals disposed of.
