Manipur High Court
Houlim Shokhopao Mate @ Benjamin vs Shri Lorho S. Pfoze on 23 September, 2022
Author: M.V. Muralidaran
Bench: M.V. Muralidaran
SHAMURAILATPAM Digitally signed by
SHAMURAILATPAM SUSHIL SHARMA
SUSHIL SHARMA Date: 2022.09.23 17:32:49 +05'30'
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IN THE HIGH COURT OF MANIPUR
AT IMPHAL
ELECTION PETITION NO. 1 OF 2019
Houlim Shokhopao Mate @ Benjamin, aged about 36
years, S/O (L) H. Jamkhokhai Mate, resident of
Tengnoupal Village, P.O. & P.S. Tengnoupal, District
Tengnoupal, Manipur-795131.
....... Petitioner
-Versus-
1. Shri Lorho S. Pfoze, aged about 59 years, S/O Late
A. SiboPfoze, resident of Kayinu Village, P.O. & P.S.
Mao, District Senapati, Manipur - 795150
2. Angam Karung Kom, aged about 63 years, S/O Late
Ashong Kom, resident of K.R. Lane, P.O. & P.S.
Porompat, District Imphal East, Manipur - 795005.
3. Shri Hangkhanpau Taithul, aged about 55 years, S/O
(L) T. Doupu, resident of Singngat Hausa Veng, P.O.
& P.S. Singngat, Churachandpur District, Manipur -
795139.
3. Mr. Ashang Kasar @ Wungnaoshang Kasar @
Wungnao Shang Kasar, aged about 43 years, S/O
Ngashathing Kasar, resident of Chadong Village,
P.O. & P.S. Litan, Kamjong District, Manipur
- 795145.
4. Leikhan Kaipu, aged about 54 years, S/O Late
Leikhan Kokan, resident of Heikakpokpi Village, P.O.
Election Petition No. 1 of 2019
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Pallel, P.S. Machi, Machi Sub-Division, Tengnoupal
District, Manipur - 795135.
5. Thangminlien Kipgen, aged about years, S/O Late
Thangpu Kipgen, resident of Haipi Village, P.O.
Kalapahar, Kangpokpi District, Manipur - 795122.
6. Shri K. James, aged about 56 years, S/O Late K.
Ngatangmi, resident of Tangkhul Hundung Khullen,
P.O. Lamlong, P.S. Litan, Kamjong District, Manipur
- 795010.
- Presently residing at JIM Blessing Home,
Sangaiprou Mamang Leikai, Airport Road, P.O. &
P.S. Singjamei, Imphal West District, Manipur
- 795008.
....... Respondents
BEFORE
HON'BLE MR. JUSTICE M.V. MURALIDARAN
For the Petitioners :: Mr. Sundeep Srivastava,
Advocate
Mr. Ashem Mohendro Singh,
Advocate
For the Respondents :: Mr. HS Paonam, Sr. Advocate
Mr. B. R. Sharma, Advocate.
Dates of Hearing and
reserving Judgment & Order :: 8/06/2022, 9/06/2022, 17/6/2022,
11/07/2022, 13/07/2022, 9/07/2022,
22/07/2022, 25/07/2022 and
26/07/2022.
Date of Judgment & Order :: 23.09.2022
Election Petition No. 1 of 2019
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JUDGMENT AND ORDER
(CAV)
This Election Petition has been filed by the
petitioner under Section 100(1)(d)(i)&(iv) and under Section
100(1)(b) of the Representation of People Act, 1951 (for short,
"the RP Act") to declare that the election of the first respondent
from 2-Outer Manipur (ST) Parliamentary Constituency to the
17th Lok Sabha, 2019 as null and void and to declare that the
petitioner is the duly elected Member in the 17 th Lok Sabha,
2019 from 2-Outer Manipur (ST) Parliamentary Constituency
under Section 101 of the RP Act.
2. The Returning Officer of 2-Outer Manipur (ST)
Parliamentary Constituency notified the election schedule for a
Member to the House of People (Lok Sabha) in No.2-Outer
Manipur (ST) Parliamentary Constituency in the following
manner:
(a) Last date for making nomination : 25.03.2019
(b) Date of scrutiny of nomination : 26.03.2019
(c) Last date for withdrawal of : 28.03.2019
nomination
(d) Date of poll : 11.04.2019
Election Petition No. 1 of 2019
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3. Pursuant to the public notice, the petitioner and
others have filed their nomination papers within the time
specified and the Returning Officer thereafter published in the
Official Gazette the list of the candidates contesting in the Lok
Sabha Election, 2019 from No.2-Outer Manipur (ST)
Parliamentary Constituency. The list of candidates notified is
as under:
1. Houlim Shokhopao Mate @ Benjamin [BJP]
2. Lorho S. Pfoze [Naga People's Front]
3. Angam Karung Kom [Nationalist Congress
Party]
4. Hangkhan pautaithul [Janata Dal - United]
5. Ashang Kasar @ Wungnaoshang Kasar @
Wungnao Shang Kasar [North East India
Development Party]
6. Leikhan Kaipu [Independent Candidate]
7. ThangminlienKipgen [National People's
Party]
8. K.James [Indian National Congress]
4. Succinctly put, the facts are as follows:-
The petitioner has filed his nomination papers
along with required documents duly sworn by an affidavit before
Election Petition No. 1 of 2019
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the Returning Officer. Similarly, respondents 1 to 7 have also
filed their nomination papers. He first filed his affidavit in Form
26 dated 21.3.2019 along with his nomination paper as a
candidate sponsored by the Naga People's Front (NPF) before
the Returning Officer. On 26.3.2019, during scrutiny, the
Returning Officer abruptly and improperly accepted the
nomination paper of the first respondent. According to the
petitioner, there was no proper scrutiny as envisaged under
Section 36(2) of the RP Act. The affidavit in Form 26 filed by the
first respondent suffers from the following defects:
1. The first respondent kept Column 5 of
Para 4 of the affidavit as blank as nothing
is filled up in the relevant column.
2. The gross total value disclosed by the first
respondent at Para 7-A(ix) showing
Rs.52,23,704/- for self and Rs.2,35,648/-
for spouse are not correct and misleading,
thereby filing false affidavit.
3. The first respondent failed to disclose vital
material information in his affidavit
pertaining to his non-agricultural lands
and other interest in immovable
Election Petition No. 1 of 2019
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properties at Para 7-B(ii) and (v) despite
having owning immovable properties at
Kayinu Village, Mao, Senapati District,
Manipur, thereby rendering his
nomination as invalid and void.
4. The first respondent failed to disclose the
relevant details for showing a sum of
Rs.1,12,50,000/- at Para 7-B(vi) of his
affidavit, thereby filed a false affidavit.
5. The first respondent also furnished
misleading and false
particulars/information at Para No.(9B)(f)
of his affidavit, thereby failed to disclose
the details of contracts entered into by
private companies in which candidate or
spouse or dependents have share.
6. The particulars disclosed in the affidavit at
Part B, Para (11)8(A) for the candidate
and his spouse are falsely shown to be
only Rs.3,24,704/- and Rs.2,20,648/-
respectively. These are contradictory to
Election Petition No. 1 of 2019
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the particulars entered at Part A of the
same affidavit.
7. The particulars shown at Para
No.(11)8B(iii)(b) of Part B of the affidavit
is also false as the first respondent
disclosed only a sum of Rs.80,00,000/-
being the value of inherited immovable
property at Part A, Para 7B(iv) of the
affidavit.
5. According to the petitioner, the nomination paper
filed by the first respondent should have been rejected by the
Returning Officer, however, the Returning Officer improperly
accepted the nomination of the first respondent, thereby
allowing him to contest the election. Hence, the election of the
first respondent to be the returned candidate is liable to be set
aside.
6. Denying the averments in the election petition, the
first respondent filed written statement stating that three
nomination papers along with affidavits were submitted on
various dates and since typographical mistakes were detected
in first two nomination papers and affidavits, the third
Election Petition No. 1 of 2019
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nomination paper and the affidavit in Form 26 dated 25.03.2019
were filed on 25.03.2019 and the said nomination paper along
with the said affidavit was accepted by the Returning Officer at
the time of scrutiny.
7. It is stated that being proposed by Robert Tallu
Maram, whose name is found at Serial No.4 in Part No.58 of the
electoral roll for 48-Mao (ST) with 2-Outer Manipur (ST)
Parliamentary Constituency, the nomination paper dated
25.03.2019 along with the duly sworn affidavit dated 25.03.2019
was submitted and subsequently, the same was accepted by
the Returning Officer after examining the nomination paper in
accordance with Section 36 of the RP Act. Based on the said
nomination paper and the affidavit in Form 26 dated
25.03.2019, the first respondent was allowed to contest the
election and was elected in the 17th Lok Sabha election from 2-
Outer Manipur (ST) Parliamentary Constituency. It is stated that
all the provisions of the RP Act and the mandatory instructions
of the Election Commission of India were strictly complied with
by the first respondent to the satisfaction of the Election
Commission of India.
Election Petition No. 1 of 2019
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8. The first respondent denied the statement of the
petitioner that he has failed to maintain true and correct account
of all expenditures in connection with the election in violation of
Section 77 of the RP Act and thereby committed corrupt
practice under Section 123(6) of the RP Act. In fact, the
mandate of Section 77 of the RP Act was complied with and
details were furnished to the satisfaction of the Election
Commission of India.
9. According to the first respondent, in the entry in
the Bank Register in Part-C, due to inadvertent mistake, the
date has been entered as 16.04.2019 instead of 16.05.2019
and that the last bank balance of the first respondent is
Rs.5,83,782/-. Therefore, there is no conflict in the disclosure of
the two documents, as the last transaction made was on
16.05.2019 and the closing balance on that day is Rs.5,83,782/-
only. Further, all expenditures so incurred are explained and
accompanied by bills and vouchers submitted to the satisfaction
of the Election Commission of India.
10. It is stated that no one donated any amount
exceeding Rs.10,000/- into the donation box in public rally held
on 20.03.2019 and, as such, names and address of
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persons/entities making donation exceeding Rs.10,000/- could
not have been disclosed in any case, as there were none. The
first respondent or his agents have not committed any
fraudulent acts or corrupt practices and have sincerely acted as
per law and instructions to the utmost satisfaction of the Election
Commission of India.
11. According to the first respondent, the nomination
paper of the first respondent was rightly accepted by the
Returning Officer in accordance with Section 36 of the RP Act
and the improper acceptance of the nomination paper of the first
respondent by the Returning Officer as pleaded by the
petitioner is denied. Hence, the election petition is liable to be
dismissed.
12. The petitioner filed replication stating that the first
respondent may submit various nomination papers along with
sworn affidavit in Form 26, however, the Returning Officer
accepted the nomination paper along with affidavit in Form 26
dated 21.03.2019 and the said affidavit dated 21.03.2019 was
uploaded at the official website of the Election Commission of
India as per the guidelines of the Commission. It is stated that
the affidavit dated 25.03.2019 was never affixed in a
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conspicuous place at the office of the Returning Officer for
information of the electors relating to 2-Outer Manipur (ST)
Parliamentary Constituency to the 17th Lok Sabha as per
Section 33A Clause 3 of the RP Act and also as per the
instruction of the Election Commission of India dated
15.06.2009.
13. It is stated that the Returning Officer accepted the
affidavit dated 21.03.2019 after scrutiny. When scrutiny was
held on 26.03.2019, the nomination paper dated 21.3.2019
along with Form 26 dated 21.03.2019 were the subject matter
and the nomination paper dated 25.03.2019 and the affidavit
were not the subject matter of scrutiny. After scrutiny, the
nomination paper dated 21.3.2019 along with affidavit in Form
26 dated 21.03.2019 were uploaded in the official website and
the voters could access the same from the website till date.
14. According to the petitioner, the Returning Officer
abruptly and improperly accepted the nomination paper of the
first respondent along with the affidavit dated 21.3.2019. As per
the format provided, a candidate has to fill up/mention the name
of spouse and dependents in Column 5 of Para No.4 of affidavit
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in Form 26, whereas in the instant case, the first respondent
has failed to fill up the name of the spouse and dependents.
15. It is stated that as per the affidavit in Form 26
dated 21.3.2019 at Para No.7A(ix), the gross total value of
assets of the first respondent should be Rs.53,24,704/- and his
spouse should be Rs.3,70,648/-, whereas the first respondent
showed it as Rs.52,23,704/- for himself and Rs.2,35,648/- for
his spouse. The first respondent failed to open the bank account
which is required to be opened one day ahead of filing his
nomination paper along with his affidavit dated 21.03.2019 as
per the mandatory instructions of the Election Commission of
India. All account expenditures including the expenditure for
buying nomination paper should be expended through his bank
account opened specifically for the purpose of his election
expenditure. There was no separate election bank account of
the first respondent on 21.03.2019. The acceptance of cash
exceeding Rs.10,000/- by the first respondent from the donors
is against the mandatory instruction and is also illegal which
amounts to corrupt practice.
16. Upon consideration of the pleadings, this Court
framed the following issues:
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1. Whether the affidavit in Form 26 filed
under Rule 4A of the Conduct of Election
Rules, 1961 by the Respondent No.1
suffers from defects of substantial
character and if it is suffered from defects,
then whether it would affect the result the
Election of 2-Outer Manipur (ST)
Parliamentary Constituency to the 17th
Lok Sabha 2019?
2. Whether the affidavit in Form 26 dated
21.03.2019 along with the Nomination
paper was submitted by the Respondent
No.1 before the Returning Officer, 2-
Outer Manipur (ST) Parliamentary
Constituency to the 17th Lok Sabha 2019?
3. Whether the affidavit in Form 26 dated
21.03.2019 along with the Nomination
paper was uploaded by the official of the
Election Commission of India in its
website www.ceomanipur.nic.in for
accessing the same by the voters/electors
or general public?
Election Petition No. 1 of 2019
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4. Whether the Respondent No.1 has failed
to strictly follow the instructions of the
Election Commission of India in relation to
separate Bank, election expenditure etc.?
If failed what is its effect?
5. Whether the Respondent No.1 or his
authorized agent in the election
committed corrupt practice as defined
under Section 123(6) of the
Representation of People's Act, 1951? If
yes, is in materially affected the result of
the election of 2-Outer Manipur (ST)
Parliamentary Constituency to the 17th
Lok Sabha 2019?
6. Whether the election of the Respondent
No.1 as the Returned Candidate from 2-
Outer Manipur (ST) Parliamentary
Constituency in the General Election to
the 17th Lok Sabha 2019 is liable to be
declared null and void?
7. Whether the Election Petitioner is entitled
to be declared as the Returned Candidate
Election Petition No. 1 of 2019
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of 2-Outer Manipur (ST) Parliamentary
Constituency in the 17th Lok Sabha
Election 2019?
17. On the side of the petitioner, P.Ws.1 to 4 were
examined and Exs.Z1 to Z16 have been marked. On the side of
the first respondent, DWs1 to 7 were examined and Exs.D1 to
D5/54) have been marked. Apart from marking the above
exhibits, Exs.X1 to X7 and Exx.R1 to R5/32 were also marked.
18. Since Issue Nos.1 to 6 are intertwined and based
on the same set of documents, they were taken up together.
Issue Nos.1 to 6:
19. The petitioner challenged the election of the first
respondent stating that during scrutiny, the Returning Officer of
2-Outer Manipur (ST) Parliamentary Constituency abruptly and
improperly accepted the nomination papers of the first
respondent dated 21.03.2019. The petitioner pointed out that
the first respondent kept Column 5 of Para 4 of the affidavit in
Form 26 dated 21.03.2019 as blank; gross total value disclosed
by the first respondent at Para 7-A(ix) is incorrect; material
information pertaining to his non-agricultural lands and other
Election Petition No. 1 of 2019
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interest in immovable properties at Para 7-B (ii) and (v) despite
owning immovable properties; failed to disclose the relevant
details for showing a sum of Rs.1,12,50,000/- at Para 7-B (vi);
false information at Para (9B)(f); falsely shown Rs.3,24,704/-
and Rs.2,20,648/- respectively at Part-B, Para (11)8(A) for the
candidate and his spouse; particulars shown at Para
(11)8B(iii)(b) of Part B, as the first respondent disclosed only a
sum of Rs.80,00,000/- being the value of the inherited
immovable property at Part A, Para 7B(iv).
20. The case of the petitioner is that the first
respondent has not complied with the prescribed format of Form
26, left certain columns blank, did not disclose the movable and
immovable assets of himself, his spouse and his dependents,
made false statements on oath and have concealed material
facts in Form 26, which has materially affected the election of
the petitioner. According to the petitioner, the returning officer
ought to have rejected the nomination paper of the first
respondent under Section 36(2) of the RP Act, as withholding
of important information, including his non-agricultural land and
non-disclosure of contract details entered by the private
company in which the first respondent has shares and
Election Petition No. 1 of 2019
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furnishing various false information, are defects of substantive
nature.
21. It is the case of the first respondent that three
nomination papers along with affidavits were submitted on
various dates. Since typographical mistakes were detected in
the first two nomination papers and affidavits, the third
nomination paper and the affidavit in Form 26 dated 25.03.2019
was filed and the said nomination paper along with the said
affidavit was alone accepted by the Returning Officer at the time
of scrutiny.
22. Admittedly, there is no specific issue framed qua
filing of the third nomination paper dated 25.03.2019 and its
acceptance by the Returning Officer. Since the first respondent
raised an issue that the petitioner chose not to plead anything
about the nomination paper and the affidavit dated 25.03.2019,
for proper adjudication of the matter, this Court is inclined to
address the same first.
23. Mr. Sundeep Srivastava, the learned counsel for
the petitioner submitted that the Returning Officer accepted the
nomination paper along with affidavit in Form 26 dated
21.3.2019 and only the said affidavit dated 21.3.2019 was
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uploaded in the official website of the Election Commission of
India. Moreover, the affidavit dated 25.03.2019 was never
affixed in a conspicuous place at the office of the Returning
Officer for the information of the electors/general public relating
to the 2-Outer Manipur (ST) Parliamentary Constituency to the
17th Lok Sabha as per Section 33 Clause 3 of the RP Act and
also the guidelines/instructions of the Election Commission of
India.
24. The learned counsel for the petitioner further
submitted that the first respondent has violated the mandate of
Sections 33 and 33A of the RP Act and has not complied with
the prescribed format of Form 26, left certain columns blank, did
not disclose the movable and immovable assets of himself, his
spouse and his dependents, made false statements on oath
and has concealed material facts in Form 26, which has
materially affected the election of the petitioner.
25. Per contra, Mr. HS Paonam, the learned senior
counsel for the first respondent submitted that there is no
requirement of law that multiple nomination paper should be
accompanied with the same affidavit in Form 26 and the
argument is just a mere submission of the petitioner without any
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basis whatsoever. The learned senior counsel added that a
fresh revised affidavit in Form 26 is permissible in law. As such,
the first respondent submitted a revised Form 26 dated
25.03.2019 along with his nomination paper dated 25.03.2019,
which was accepted after proper scrutiny by the Returning
Officer.
26. The learned senior counsel further submitted that
due to technical problem, the Returning Officer was unable to
upload more than one Form 26 of each candidate on the
website and in this regard he made a reference to the chief-
examination of the Returning Officer (DW7). According to him,
the chief-examination of DW7 was not shaken during cross-
examination by the counsel for the petitioner. Further, there is
no contradiction about the requirement of the Election
Commission of India to upload Form 26 within 24 hours from
filing of the nomination paper by a candidate. He would submit
that as far as the nomination paper and Form 26 dated
21.3.2019 submitted before the Returning Officer are
concerned, the same has been displayed on the notice board
and uploaded within 24 hours from the time it was submitted.
Therefore, the Form 26 dated 21.3.2019 has been uploaded
latest by 22.3.2019.
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27. The learned senior counsel urged that, in his
evidence, DW7 categorically stated that the subsequently filed
revised Form 26 could not be uploaded as Form 26 dated
21.03.2019 was already uploaded on the website and,
therefore, Form 26 dated 25.3.2019 could not be uploaded on
the website. The learned senior counsel submits that the
aforesaid evidence of the Returning Officer has not been
disproved by the petitioner.
28. Admittedly, technical problem canvassed by the
first respondent has not been proved. It is not the case of the
first respondent that the contesting candidates involved in the
case have also filed two or three Form 26. Further, the other
respondents have not come forwarded and stated anything
about the alleged technical problem alleged by the first
respondent. In the absence of any proof, this Court cannot
come to a conclusion that more than one affidavit in Form 26
cannot be uploaded.
29. The first respondent, in paragraph 10 of the written
statement, stated that he had filed three nomination papers and
since defects on the first and second nomination papers were
detected, he filed third nomination paper, which is the correct
Election Petition No. 1 of 2019
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nomination paper. Admittedly, there is no record for the
expenditure for filing the third nomination paper. Assuming
without admitting, the submission of the first respondent is that
the affidavit in Form 26 cannot be filed without withdrawing the
incorrect affidavit in Form 26.
30. There is no record to show that the first respondent
had withdrawn the first two nomination papers and filed the third
one. The first respondent cannot file two or three different
affidavits in Form 26 for filing nomination paper on different
occasions without taking the permission of the authority
concerned, if he thinks that the first two are defective.
Moreover, the permission granted by the authority has not been
produced.
31. In this regard, the cross-examination of D.W.7,
who is the then Returning Officer of 2-Outer Manipur (ST)
Parliamentary Constituency in 17th Lok Sabha 2019, is as
follows:
Q1 : What was your position in the office of the
Returning Officer 2-Outer Manipur (ST)
Parliamentary Constituency in 17th Lok Sabha
Election, 2019?
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Ans. : I was discharging my duty as Returning Officer of
the 2-Outer Manipur (ST) Parliamentary
Constituency in 17th Lok Sabha Election, 2019.
Q2. : Where are you presently serving/posted?
Ans. : Right now I am serving as Special Secretary,
Health & Family Welfare, Govt. of Manipur and
Project Director, MACS.
Q3 : How many nomination papers can a candidate
submit before the Returning Officer in the instant
that of 2-Outer Manipur (ST) Parliamentary
Constituency in 17th Lok Sabha Election, 2019?
Ans. : Under Sub-Section (6) of Section 33 of the
Representation of People Act, 1951, a maximum
4 (four) Nomination Papers only can be presented
by a candidate or on behalf of any candidate in the
same constituency.
Q4. : How many Nomination Papers and Form-26
affidavit did the Returned Candidate submit
before your good Office?
Ans. : I think 3 (three) Nomination Papers along with
Form-26 affidavit were submitted by the Returned
Candidate in the Office of the Returning Officer, 2-
Outer Manipur (ST) Parliamentary Constituency in
17th Lok Sabha Election, 2019.
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Q5 : Were the said 3 (three) Nomination Papers along
with Form-26 affidavit if submitted by the
Returned Candidate displayed on the Notice
Board in the Office of Returning Officer, 2-Outer
Manipur (ST) Parliamentary Constituency in 17th
Lok Sabha Election, 2019?
Ans. : Copies of all the Nomination Papers along with
copies of Form-26 affidavits accompanying the
Nomination Forms were submitted by the
Returned Candidate displayed on the Notice
Board in the Office of Returning Officer, 2-Outer
Manipur (ST) Parliamentary Constituency in 17th
Lok Sabha Election, 2019 on the same day
nominations were filed.
Q6 : What does Instructions/Guidelines of Election
Commission of India says regarding publication of
Nomination Papers of Candidates of 17th Lok
Sabha Election, 2019 on their official website?
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Ans. : All affidavits filed by the candidates shall be
uploaded on the Election Commission of India's
website within 24 (twenty four) hours soon after
the candidate files the same.
In the instant, the witness voluntarily states that
however, we did face some technical issues in
uploading more than 1 (one) affidavit for each
candidate on the ECI's website.
32. The first respondent in his evidence and in the
written statement admitted the filing of the nomination paper
along with affidavit in Form 26 on 21.03.2019. Similarly, P.W.4.,
the then Additional Chief Electoral officer, Manipur in his
evidence categorically stated the filing of nomination paper
along with affidavit in Form 26 by the first respondent on
21.03.2019. The evidence of P.W.4 is also to the effect that the
affidavit in Form 26 dated 21.03.2019 was placed in a
conspicuous place for public view and was uploaded on the
official website.
33. In the background of the evidence referred to
above, when this Court viewed the official website of the
Election Commission of India, it is seen that the nomination
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P a g e | 25
papers submitted by the candidates for 2-Outer Manipur (ST)
Parliamentary Constituency to the 17th Lok Sabha, 2019 were
duly uploaded. When this Court clicked the first respondent's
nomination paper, this Court is able to see the affidavit in Form
26 dated 21.03.2019 and not the affidavit in Form 26 dated
25.03.2019 said to have been filed by the first respondent.
Since affidavit in Form 26 dated 21.03.2019 of the first
respondent was officially uploaded in the website of the Election
Commission of India, this Court left with no other option except
to look into the nomination paper and the affidavit in Form 26
dated 21.03.2019 of the first respondent and not the nomination
paper and affidavit in Form 26 dated 25.03.2019, as the same
was not properly disseminated and uploaded in the website.
34. On wading through the oral evidence and
documents produced by the first respondent, it is clear that the
Returning Officer accepted the nomination paper along with
affidavit in Form 26 dated 21.3.2019 of the first respondent and
the said affidavit was only uploaded in the official website.
Since the Returning Officer accepted the affidavit in Form 26
dated 21.03.2019 and uploaded the same in the website of the
Election Commission of India for deciding the matter further, the
affidavit in Form 26 dated 21.3.2019 is referred to.
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35. The defects pointed out by the petitioner in the
affidavit in Form 26 dated 21.03.2019 are as under:
Column 5 of Para 4:
(4). Details of Permanent Account Number (PAN) and status of
filing of Income Tax return.
Sl. Names PAN The financial Total
No. year for which income
the last shown in
Income-tax Income-Tax
return has return (in
been filed Rupees) for
the last five
Financial
Years (as on
the 31st
March)
1. Self ASLPP2084L N.A. (i)
(ii)
(iii)
(iv)
(v))
2. Spouse AQRPM4140Q N.A. (i)
(ii)
(iii)
(iv)
(v))
3 HUF (If the N.A. N.A. (i)
Candidate is (ii)
Karta or (iii)
Coparcener) (iv)
(v))
4. Dependent-1 N.A. N.A. (i)
(ii)
Election Petition No. 1 of 2019
P a g e | 27
(iii)
(iv)
(v))
5. Dependent-2 N.A. N.A. (i)
(ii)
(iii)
(iv)
(v))
6. Dependent-3 N.A. N.A. (i)
(ii)
(iii)
(iv)
(v))
Para 7-A(ix)
(ix) Gross Rs.52,23,704/- Rs.2,35,648/- N.A. N.A. N.A. N.A.
Total
Value
Para 7-B(ii) and (v)
(ii) Non- N.A. N.A. N.A. N.A. N.A. N.A.
Agricultural
land
Location(s)
Survey
number(s)
Area (total N.A. N.A. N.A. N.A. N.A. N.A.
measurement
in sq. ft.
Whether N.A. N.A. N.A. N.A. N.A. N.A.
inherited
Election Petition No. 1 of 2019
P a g e | 28
property
(Yes/No)
Date of N.A. N.A. N.A. N.A. N.A. N.A.
purchase in
case of self-
acquired
property
Cost of land N.A. N.A. N.A. N.A. N.A. N.A.
(in case of
purchase) at
the time of
purchase
Any N.A. N.A. N.A. N.A. N.A. N.A.
investment on
the land by
way of
development,
construction
etc.
Approximate N.A. N.A. N.A. N.A. N.A. N.A.
current market
value
(v) Others Rs.2,50,000/- N.A. N.A. N.A. N.A. N.A.
(such as
interest in
property)
(vi) Total of Rs.1,12,50,000/- N.A. N.A. N.A. N.A. N.A.
current
Election Petition No. 1 of 2019
P a g e | 29
market
value of
(i) to (v)
above
(9B)(f). Details of contracts, entered into by private companies
in which candidate or spouse or dependents have share:
500,000 shares, Intouch Naturals Private Limited.
(11) ABSTRACT OF THE DETAILS GIVEN IN (1) TO (1)) OF
PART A:
8. Details of Assets and Liabilities (Including offshore
assets) in Rupees
A Description Self Spouse HU Dep Dep Depe
Self Spouse F end end ndent
ent- ent- -3
1 2
Movable Rs.3,24,7 Rs.2,20,6 N.A N.A. N.A. N.A.
Assets 04/- 48/- .
(Total
Value)
B Immovable
Assets
III Inherited Rs.82,50,000/- N.A. N.A. N.A. N.A. N.A.
b. assets
(Total
value)
36. Since the petitioner pleaded that affidavit in Form
26 dated 21.03.2019 suffers from defects of substantial
Election Petition No. 1 of 2019
P a g e | 30
character, like non-filling of relevant columns; non-adherence to
the instruction of the Election Commission of India regarding
opening of separate bank, election expenditure and corrupt
practices, it would be necessary to look into the affidavit in Form
26 dated 21.03.2019.
37. On a perusal of affidavit in Form 26 dated
21.03.2019 [Ext.Z/4], this Court finds that the first respondent
kept Column 5 of Para 4 of the affidavit blank. Further in Para
7-A(ix),the first respondent has not correctly disclosed the gross
total value for himself and his spouse. Similarly, in Para 7-B(ii)
and (v), the first respondent failed to disclose information qua
non-agricultural lands and other interest in immovable
properties. Further, the first respondent failed to disclose the
relevant details for showing a sum of Rs.1,12,50,000/- at Para
7-B (vi). He has also furnished false information in Para (9B)(f).
The first respondent falsely shown Rs.3,24,704/- and
Rs.2,20,648/- respectively at Part-B, Para (11)8(A) for himself
and his spouse. False particulars are shown at Para
(11)8B(iii)(b) of Part B, as the first respondent disclosed only a
sum of Rs.80,00,000/- being the value of the inherited
immovable property at Part A, Para 7B(iv).
Election Petition No. 1 of 2019
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38. During his cross-examination, the first respondent
[D.W.5] stated as under:
Q.12(a) : Do you agree that you have not mentioned
the name of your spouse at para no.4 at
no.2 of your Form-26 affidavit dated
21.03.2019?
Ans. : Yes
Q.12(b) : Do you agree that you have not mentioned
regarding the non-agricultural land at the
relevant column of para no.(7)(B)(ii) of your
Form-26 affidavit dated 21.03.2019?
Ans. : Yes
Q.12(c) : Do you agree that you have not mentioned
detail of profession or occupation of your
spouse at para no.(9)(b) of your Form-26
affidavit dated 21.03.2019?
Ans. : Yes
39. On reading of the cross-examination of D.W.5, it is
seen that an objection has been raised on behalf of the first
respondent for asking the aforesaid questions by stating that
after coming to know the mistakes in Form-26 dated
21.03.2019, the first respondent submitted a revised Form-26
on 25.03.2019. In view of the finding arrived at by this Court in
the preceding paragraph that the only Form-26 officially
uploaded in the website of the Election Commission of India is
the affidavit in Form-26 dated 21.03.2019, the said objection
Election Petition No. 1 of 2019
P a g e | 32
raised by the first respondent during cross-examination is
unsustainable. As such, the learned counsel for the petitioner
has rightly put the aforesaid suggestion in the form of
Q.Nos.12(a) to 12(c) and the first respondent has also rightly
given answer "Yes" for all three questions.
40. During the cross-examination, when the first
respondent was put a question that "Do you agree that all
documents at Ext.Z/7 (Part-A Register), Ext.Z/8 (Part-B
Register) and Ext.Z/9 (Part-C Register) are documents
pertaining to your election expenditures of 17th Lok Sabha
Election, 2019 of 2-Outer Manipur Parliamentary Constituency",
the answer given by the first respondent was 'Yes'. In fact, the
first respondent admitted that he left blank the details of his
spouse, her source of income, details of returns for the last five
years, details of his dependent, details of his non-agricultural
land, details of movable assets and have falsely stated his and
his spouse's jewelleries, cash in hand as well as the value of
the property in Form 26 dated 21.03.2019.
41. At this juncture, Mr. HS Paonam, the learned
senior counsel for the first respondent submitted that the first
respondent is living in the Hill District of Manipur, where the
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P a g e | 33
Manipur Land Revenue and Land Reforms Act, 1960 is
extended.
42. In reply, the learned counsel for the petitioner
submitted that the land within the Hill area except some area is
the unsurveyed land and accordingly, there is no recorded
document but the people who are living at Hill area have
obtained their land through Headman or Village Chief by paying
Hill House Tax and that the Hill people can sell their land
amongst themselves and they can construct, develop their land
as similar with land in the Valley area of Manipur.
43. According to the petitioner, the first respondent
has a non-agricultural land where he has constructed his house.
In his evidence, the first respondent admitted the said fact.
Therefore, the first respondent is duty bound to disclose his
non-agricultural land where building/house was constructed in
Form-26 dated 21.03.2019. On a further reading of the
deposition of the first respondent, when the learned counsel for
the petitioner posed a question "Do you agree that you have not
mentioned regarding the Non-agricultural land at the relevant
column of para No.(7)(B)(ii) of your Form 26 affidavit dated
21.03.2019?, the first respondent replied "Yes". According to
Election Petition No. 1 of 2019
P a g e | 34
the petitioner, noting the aforesaid non-disclosure of the
material facts, the Returning Officer ought to have rejected the
nomination paper of the first respondent.
44. The learned counsel for the petitioner submitted
that Section 77 of the RP Act contains 3 sub-section i.e. (i)
opening of separate election bank account; (ii) maintenance of
election expenditures account as prescribed by
law/guidelines/instructions and election expenditures should
not exceed the maximum limit for expenditures as prescribed.
Highlighting the above three conditions, the learned counsel for
the petitioner argued that the first respondent has violated the
aforesaid.
45. Rebutting the argument of the learned counsel for
the petitioner, the learned senior counsel for the first respondent
submitted that it has been proved that the election expenditure
has been accepted by the competent authority being found to
be in compliance and in consonance with the relevant laws and
rules and also submitted within the time. He would submit that
the petitioner is oblivious of the very fact that through the
evidences of the first respondent and the official witnesses, it
has been proved that there were no illegality committed and no
Election Petition No. 1 of 2019
P a g e | 35
failure on the part of the first respondent to properly maintain
his election expenditures.
46. The learned senior counsel added that the
petitioner has failed to appreciate the fact that his Election
Petition lacks material particulars and material facts and could
not prove the allegations made by him against the first
respondent of illegal act and fraudulent act in respect to election
expenditure and corrupt practices being baseless and rightly so,
as there were no violation of any instructions/guidelines of the
Election Commission of India.
47. The learned senior counsel further submitted that
the Election Petition must contain material facts and if there are
allegations of corrupt practice, it must contain full particulars.
Further, the behavior, character and demeanor of the witness
to be taken into account is a matter of prime consideration. He
also submitted that there are lot of discrepancies between the
pleadings of the Election Petition and the statements of
witnesses examined on the side of the petitioner qua the alleged
corrupt practice levelled against the first respondent. To fortify
the aforesaid submission, the learned senior counsel placed
Election Petition No. 1 of 2019
P a g e | 36
reliance upon a decision of the Hon'ble Supreme Court in the
case of Govind Singh v. Harchand Kaur, (2011) 2 SCC 621.
48. By placing reliance on the decision of the Hon'ble
Supreme Court in the case of Virender Nath Gautam v. Satpal
Singh and others, (2007) 3 SCC 617, the learned senior
counsel submitted that in the absence of pleading, a party
cannot be allowed to lead evidence. Here, in the case on hand,
most of the evidence let in by the petitioner is without pleading.
49. The learned senior counsel urged that the
petitioner failed to appreciate the actual fact that the first
respondent has provided true and correct statement of election
expenditure which has been duly accepted by the authority
concerned.
50. Highlighting the evidence of P.W.3, Bank Manager
of the IDBI Bank, Imphal Branch, the learned senior counsel for
the first respondent submitted that in his evidence, P.W.4
clearly answered that the bank account of the first respondent
was opened on 24.3.2019 and has submitted and exhibited the
said account statement as Ext.Z/12.
Election Petition No. 1 of 2019
P a g e | 37
51. Countering the aforesaid arguments of learned
senior counsel for the first respondent, the learned counsel for
the petitioner highlighted the following aspects regarding
opening of separate election bank account:
1. The first respondent opened his election
separate bank account bearing Account
No.1219102999995449 of IBBI, Imphal on
24.03.2019. First amount for opening the
said account was deposited a sum of Rs.20
lakh from the first respondent on
26.03.2019.
2. The first respondent never routed the
expenditure of Rs.19,250/- incurred on
21.03.2019 through his election separate
bank account.
3. The first respondent never opened his
election separate bank account prior to
filing of nomination.
52. Before dealing with the submissions advanced by
the learned counsel for the petitioner and the learned senior
counsel for the first respondent, firstly, it would be apposite to
Election Petition No. 1 of 2019
P a g e | 38
reproduce and examine the relevant legal framework contained
in the RP Act hereunder:
"Section 33 of the Act deals with
Presentation of Nomination Paper and
requirements for a valid nomination, which
is reproduced as under:
"33. Presentation of nomination paper and
requirements for a valid nomination.--(1) On or
before the date appointed under clause (a) of
Section 30 each candidate shall, either in
person or by his proposer, between the hours
of eleven o'clock in the forenoon and three
o'clock in the afternoon deliver to the returning
officer at the place specified in this behalf in
the notice issued under Section 31 a
nomination paper completed in the prescribed
form and signed by the candidate and by an
elector of the constituency as proposer:
[Provided that a candidate not set up by a
recognised political party, shall not be deemed
to be duly nominated for election from a
constituency unless the nomination paper is
subscribed by ten proposers being electors of
the constituency:
Provided further that no nomination paper
shall be delivered to the Returning Officer on
a day which is a public holiday.
Election Petition No. 1 of 2019
P a g e | 39
Provided also that in the case of a local
authorities' constituency, graduates'
constituency or teachers' constituency, the
reference to ''an elector of the constituency as
proposer' shall be construed as a reference to
ten per cent of the electors of the constituency
or ten such electors, whichever is less, as
proposers.
(1-A) Notwithstanding anything contained in
sub-section (1), for election to the Legislative
Assembly of Sikkim (deemed to be the
Legislative Assembly of that State duly
constituted under the Constitution), the
nomination paper to be delivered to the
returning officer shall be in such form and
manner as may be prescribed:
Provided that the said nomination paper shall
be subscribed by the candidate as assenting
to the nomination, and--
(a) in the case of a seat reserved for Sikkimese
of Bhutia-Lepcha origin, also by at least twenty
electors of the constituency as proposers and
twenty electors of the constituency as
seconders;
Election Petition No. 1 of 2019
P a g e | 40
(b) in the case of a seat reserved for Sanghas,
also by at least twenty electors of the
constituency as proposers and at least twenty
electors of the constituency as seconders;
(c) in the case of a seat reserved for Sikkimese
of Nepali origin, by an elector of the
constituency as proposer:
Provided further that no nomination paper
shall be delivered to the returning officer on a
day which is a public holiday.
(2) In a constituency where any seat is
reserved, a candidate shall not be deemed to
be qualified to be chosen to fill that seat unless
his nomination paper contains a declaration by
him specifying the particular caste or tribe of
which he is a member and the area in relation
to which that caste or tribe is a Scheduled
Caste or, as the case may be, a Scheduled
Tribe of the State.
(3) Where the candidate is a person who,
having held any office referred to in 3[Section
9] has been dismissed and a period of five
years has not elapsed since the dismissal,
such person shall not be deemed to be duly
nominated as a candidate unless his
nomination paper is accompanied by a
Election Petition No. 1 of 2019
P a g e | 41
certificate issued in the prescribed manner by
the Election Commission to the effect that he
has not been dismissed for corruption or
disloyalty to the State.
(4) On the presentation of a nomination paper,
the returning officer shall satisfy himself that
the names and electoral roll numbers of the
candidate and his proposer as entered in the
nomination paper are the same as those
entered in the electoral rolls:
Provided that no misnomer or inaccurate
description or clerical, technical or printing
error in regard to the name of the candidate or
his proposer or any other person, or in regard
to any place, mentioned in the electoral roll or
the nomination paper and no clerical, technical
or printing error in regard to the electoral roll
numbers of any such person in the electoral
roll or the nomination paper, shall affect the full
operation of the electoral roll or the nomination
paper with respect to such person or place in
any case where the description in regard to the
name of the person or place is such as to be
commonly understood; and the returning
officer shall permit any such misnomer or
inaccurate description or clerical, technical or
printing error to be corrected and where
Election Petition No. 1 of 2019
P a g e | 42
necessary, direct that any such misnomer,
inaccurate description, clerical, technical or
printing error in the electoral roll or in the
nomination paper shall be overlooked.
(5) Where the candidate is an elector of a
different constituency, a copy of the electoral
roll of that constituency or of the relevant part
thereof or a certified copy of the relevant
entries in such roll shall, unless it has been
filed along with the nomination paper, be
produced before the returning officer at the
time of scrutiny.
(6) Nothing in this section shall prevent any
candidate from being nominated by more than
one nomination paper:
Provided that not more than four nomination
papers shall be presented by or on behalf of
any candidate or accepted by the returning
officer for election in the same constituency.
(7) Notwithstanding anything contained in sub-
section (6) or in any other provisions of this
Act, a person shall not be nominated as a
candidate for election,--
Election Petition No. 1 of 2019
P a g e | 43
(a) in the case of a general election to the
House of the People (whether or not held
simultaneously from all Parliamentary
constituencies), from more than two
Parliamentary constituencies;
(b) in the case of a general election to the
Legislative Assembly of a State (whether or
not held simultaneously from all Assembly
constituencies), from more than two Assembly
constituencies in that State;
(c) in the case of a biennial election to the
Legislative Council of a State having such
Council, from more than two Council
constituencies in the State;
(d) in the case of a biennial election to the
Council of States for filling two or more seats
allotted to a State, for filling more than two
such seats;
(e) in the case of bye-elections to the House of
the People from two or more Parliamentary
constituencies which are held simultaneously,
from more than two such Parliamentary
constituencies;
Election Petition No. 1 of 2019
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(f) in the case of bye-elections to the
Legislative Assembly of a State from two or
more Assembly constituencies which are held
simultaneously, from more than two such
Assembly constituencies;
(g) in the case of bye-elections to the Council
of States for filling two or more seats allotted
to a State, which are held simultaneously, for
filling more than two such seats;
(h) in the case of bye-elections to the
Legislative Council of a State having such
Council from two or more Council
constituencies which are held simultaneously,
from more than two such Council
constituencies.
Explanation.--For the purposes of this sub-
section, two or more bye-elections shall be
deemed to be held simultaneously where the
notification calling such bye-elections are
issued by the Election Commission under
Sections 147, 149, 150 or, as the case may
be, 151 on the same date.
Section 36 of the Act deals with scrutiny of
nominations and is extracted below :-
"36. Scrutiny of nominations.--(1) On the date
fixed for the scrutiny of nominations under
Election Petition No. 1 of 2019
P a g e | 45
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) that on the date fixed for the scrutiny of
nominations the candidate either is not
qualified or is disqualified for being chosen to
fill the seat under any of the following
provisions that may be applicable, namely:--
Articles 84, 102, 173 and 191, [Part II of this
Act and Sections 4 and 14 of the Government
of Union Territories Act, 1963]; or
Election Petition No. 1 of 2019
P a g e | 46
(b) that there has been a failure to comply with
any of the provisions of Section 33 or Section
34; or
(c) that the signature of the candidate or the
proposer on the nomination paper is not
genuine.
(3) Nothing contained in clause (b) or clause
(c) of sub-section (2) shall be deemed to
authorise the rejection of the nomination of
any candidate on the ground of any irregularity
in respect of a nomination paper, if the
candidate has been duly nominated by means
of another nomination paper in respect of
which no irregularity has been committed.
(4) The returning officer shall not reject any
nomination paper on the ground of any defect
which is not of a substantial character.
(5) The returning officer shall hold the scrutiny
on the date appointed in this behalf under
clause (b) of Section 30 and shall not allow any
adjournment of the proceedings except when
such proceedings are interrupted or
obstructed by riot or open violence or by
causes beyond his control: Provided that in
Election Petition No. 1 of 2019
P a g e | 47
case an objection is raised by the returning
officer or is made by any other person the
candidate concerned may be allowed time to
rebut it not later than the next day but one
following the date fixed for scrutiny, and the
returning officer shall record his decision on
the date to which the proceedings have been
adjourned.
(6) The returning officer shall endorse on each
nomination paper his decision accepting or
rejecting the same and, if the nomination
paper is rejected, shall record in writing a brief
statement of his reasons for such rejection.
(7) For the purposes of this section, a certified
copy of an entry in the electoral roll for the time
being in force of a constituency shall be
conclusive evidence of the fact that the person
referred to in that entry is an elector for that
constituency, unless it is proved that he is
subject to a disqualification mentioned in
Section 16 of the Representation of the People
Act, 1950 (43 of 1950).
(8) Immediately after all the nomination papers
have been scrutinized and decisions
accepting or rejecting the same have been
recorded, the returning officer shall prepare a
Election Petition No. 1 of 2019
P a g e | 48
list of validly nominated candidates, that is to
say, candidates whose nominations have
been found valid, and affix it to his notice
board.
53. A careful perusal of the aforesaid provisions of the
RP Act goes to show that Section 33 deals with presentation of
valid nomination papers and Section 36 deals as to whether a
nomination is valid one or whether the candidate incurred any
disqualification for filing a nomination or failed to comply with
any of the statutory provisions and whether the signature of the
candidate or the proposer on the nomination papers is genuine
or not or every column is filled by the candidate according to the
norms and guidelines issued by the Election Commission of
India etc. If a candidate incurs any disqualification, his
nomination is liable to be rejected under Section 36(2)(a) of the
RP Act and if the candidate fails to fulfill or comply with the
provisions of Section 33 of the RP Act in presenting a valid
nomination such as subscribing ten proposers or any other
guidelines/rules, if he is not a candidate set up by a recognized
political party or if he is contesting on a reserved seat and if the
caste certificate is not filed, such nomination cannot be treated
as a valid nomination and therefore, it is liable to be rejected for
failure to comply with the statutory provisions of Section 33 of
Election Petition No. 1 of 2019
P a g e | 49
the RP Act or if there is no requisite deposit made under Section
34 of the RP Act, then also such nominations are liable to be
dismissed for failure to comply with the provisions of Section 34
of the RP Act.
54. In the backdrop of the aforesaid legal position, it is
imminently clear that whenever there is an improper
acceptance or rejection of the nomination papers on the above
grounds, it shall be deemed that the election of a returned
candidate is materially affected for non-compliance of the
provisions of the Constitution or the provisions of the RP Act or
the Rules made thereunder. Cases where the candidates are
not entitled to contest by reason of illegal acceptance of their
nomination papers are liable to be equated to such of the cases
where the nominations of candidates were improperly rejected
for the purpose of declaring the election as void.
55. At this juncture, it apposite to point out that in a
catena of decisions, the Hon'ble Supreme Court made it
mandatory to disclose array of information about the contestant
and his family members. Few of the decisions of the Hon'ble
Supreme Court on this point are given hereunder for ready
reference.
Election Petition No. 1 of 2019
P a g e | 50
56. The decision in the case of Union of India v.
Association for Democratic Reforms and another (2002) 5
SCC 294 is a watershed on electoral reforms ushering in new
norms, wherein series of directions were issued on disclosure
of information by contesting candidate.
"46. To sum up the legal and constitutional
position which emerges from the aforesaid
discussion, it can be stated that:
1.....
2.....
3.....
4. To maintain the purity of elections and in
particular to bring transparency in the process
of election, the Commission can ask the
candidates about the expenditure incurred by
the political parties and this transparency in
the process of election would include
transparency of a candidate who seeks
election or re-election. In a democracy, the
electoral process has a strategic role. The little
man of this country would have basic
elementary right to know full particulars of a
candidate who is to represent him in
Parliament where laws to bind his liberty and
property may be enacted.
Election Petition No. 1 of 2019
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5. The right to get information in democracy is
recognised all throughout and it is a natural
right flowing from the concept of democracy.
At this stage, we would refer to Article 19(1)
and (2) of the International Covenant on Civil
and Political Rights, which is as under:
"(1) Everyone shall have the right to hold
opinions without interference.
(2) Everyone shall have the right to
freedom of expression; this right shall
include freedom to seek, receive and
impart information and ideas of all kinds,
regardless of frontiers, either orally, in
writing or in print, in the form of art, or
through any other media of his choice."
6. On cumulative reading of a plethora of
decisions of this Court as referred to, it is clear
that if the field meant for legislature and
executive is left unoccupied detrimental to the
public interest, this Court would have ample
jurisdiction under Article 32 read with Articles
141 and 142 of the Constitution to issue
necessary directions to the executive to
subserve public interest.
7. Under our Constitution, Article 19(1)(a)
provides for freedom of speech and
expression. Voter's speech or expression in
Election Petition No. 1 of 2019
P a g e | 52
case of election would include casting of
votes, that is to say, voter speaks out or
expresses by casting vote. For this purpose,
information about the candidate to be selected
is a must. Voter's (little man - citizen's) right to
know antecedents including criminal past of
his candidate contesting election for MP or
MLA is much more fundamental and basic for
survival of democracy. The little man may
think over before making his choice of electing
law-breakers as law-makers."
57. In Association for Democratic Reforms (supra)
the Hon'ble Supreme Court, issued the following directions;
"47. In this view of the matter, it cannot be said
that the directions issued by the High Court are
unjustified or beyond its jurisdiction. However,
considering the submissions made by the
learned counsel for the parties at the time of
hearing of this matter, the said directions are
modified as stated below.
48. The Election Commission is directed to call
for information on affidavit by issuing
necessary order in exercise of its power under
Article 324 of the Constitution of India from
each candidate seeking election to Parliament
or a State Legislature as a necessary part of
Election Petition No. 1 of 2019
P a g e | 53
his nomination paper, furnishing therein,
information on the following aspects in relation
to his/her candidature:
(1) Whether the candidate is
convicted/acquitted/discharged of any
criminal offence in the past - if any,
whether he is punished with
imprisonment or fine.
(2) Prior to six months of filing of
nomination, whether the candidate is
accused in any pending case, of any
offence punishable with imprisonment for
two years or more, and in which charge
is framed or cognizance is taken by the
court of law. If so, the details thereof.
(3) The assets (immovable, movable,
bank balance, etc.) of a candidate and of
his/her spouse and that of dependants.
(4) Liabilities, if any, particularly whether
there are any overdues of any public
financial institution or government dues.
(5) The educational qualifications of the
candidate.
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49. It is to be stated that the Election
Commission has from time to time issued
instructions/orders to meet with the situation
where the field is unoccupied by the
legislation. Hence, the norms and modalities
to carry out and give effect to the aforesaid
directions should be drawn up properly by the
Election Commission as early as possible and
in any case within two months."
58. After the decision of the Hon'ble Supreme Court in
Association for Democratic Reforms(supra), an Ordinance
which was promulgated by the President of India on 24.08.2002
by which Sections 33A and 33B were inserted in the RP Act.
Subsequently, the said Ordinance was repealed and the
Representation of People (3rd Amendment) Act of 2002 was
noticed inserting Sections 33A and 33B in the RP Act. Section
33A requires the candidate to furnish additional information as
to-
"(i) whether he is accused of any offence
punishable with imprisonment for 2 (two) years
or more in a pending case in which a charge
has been framed by the Court of competent
jurisdiction.
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(ii) whether he has been convicted of an
offence other than any offence referred to in
sub-section (1) or subsection (2), or covered in
subsection (3), of section 8 and sentenced to
imprisonment for one year or more."
59. Section 33B of the RP Act provided that
notwithstanding anything contained in any judgment, decree or
order of any Court or any direction, order or any other instruction
issued by the Election Commission, no candidate shall be liable
to disclose or furnish any such information, in respect of his
election, which is not required to be disclosed or furnished
under the Act or the rules made thereunder. The aforesaid
Section 33A did not provide for furnishing of the information as
directed by the Hon'ble Supreme Court in Association for
Democratic Reforms (supra) and sought to cut away the scope
of the directions by incorporating Section 33B.
60. Section 33B inserted by the 3rd Amendment Act
of 2002 was challenged before the Hon'ble Supreme Court in
People's Union for Civil Liberties (PUCL) and Another v.
Union of India and Another, , (2003) 4 SCC 399. The Hon'ble
Supreme Court, while dealing with the issue, touched upon
various aspects of the directions issued in the earlier case of
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Association for Democratic Reforms (supra) and reaffirmed
the said decision which required furnishing of information by the
candidates as regards the antecedents relating to criminal
cases/offences, assets, liabilities and debts of the candidates
and their spouses and children and lastly the educational
qualification of the candidates. The aforesaid direction by the
Hon'ble Supreme Court for furnishing information was based on
the broader interpretation of Article 19 (1) (a) of the Constitution
of India, which guarantees freedom of speech and expression
to the citizen of this country. The aforesaid information were
held to be an important ingredients of Article 19 (1) (a) and
accordingly, the Hon'ble Supreme Court made the following
observations:
"18. So, the foundation of a healthy democracy
is to have well-informed citizens-voters. The
reason to have right of information with regard
to the antecedents of the candidate is that
voter can judge and decide in whose favour he
should cast his vote. It is the voter's discretion
whether to vote in favour of an illiterate or
literate candidate. It is his choice whether to
elect a candidate against whom criminal cases
for serious or non-serious charges were filed
but is acquitted or discharged. He is to
consider whether his candidate may or may
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not have sufficient assets so that he may not
be tempted to indulge in unjustified means for
accumulating wealth. For assets or liability, the
voter may exercise his discretion in favour of a
candidate whose liability is minimum and/or
there are no overdues of public financial
institution or government dues. From this
information, it would be, to some extent, easy
to verify whether unaccounted money is
utilized for contesting election and whether a
candidate is contesting election for getting rich
or after being elected to what extent he
became richer. Exposure to public scrutiny is
one of the known means for getting clean and
less polluted persons to govern the country. A
little man - a citizen - a voter is the master of
his vote. He must have necessary information
so that he can intelligently decide in favour of
a candidate who satisfies his criterion of being
elected as an MP or MLA. On occasions, it is
stated that we are not having such intelligent
voters. This is no excuse. This would be
belittling a little citizen/voter. He himself may
be illiterate but still he would have the guts to
decide in whose favour he should cast his
vote. In any case, for having free and fair
election and not to convert democracy into a
mobocracy and mockery or a farce,
information to voters is a necessity."
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61. In the said decision, His Lordship Hon'ble
M.B.Shah,J., summarized the issues as under:
"78. What emerges from the above discussion
can be summarised thus:
(A).....
(B) Section 33-B which provides that
notwithstanding anything contained in the
judgment of any court or directions issued by
the Election Commission, no candidate shall
be liable to disclose or furnish any such
information in respect of his election which is
not required to be disclosed or furnished under
the Act or the rules made thereunder, is on the
face of it beyond the legislative competence,
as this Court has held that the voter has a
fundamental right under Article 19(1)(a) to
know the antecedents of a candidate for
various reasons recorded in the earlier
judgment as well as in this judgment.
(C) The judgment rendered by this Court in
Assn. for Democratic Reforms has attained
finality, therefore, there is no question of
interpreting constitutional provision which calls
for reference under Article 145(3).
(D) The contention that as there is no specific
fundamental right conferred on a voter by any
statutory provision to know the antecedents of
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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.
(E)......"
62. In the aforesaid decision, His Lordship Hon'ble
P.Venkatarama Reddi,J., though endorsed the view as regards
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unconstitutionality of Section 33B, expressed disagreement in
certain areas and observed as under:
"123. Finally, the summary of my conclusions:
(1) Securing information on the basic details
concerning the candidates contesting for
elections to Parliament or the State
Legislature promotes freedom of expression
and therefore the right to information forms an
integral part of Article 19(1)(a). This right to
information is, however, qualitatively different
from the right to get information about public
affairs or the right to receive information
through the press and electronic media,
though, to a certain extent, there may be
overlapping.
(2) The right to vote at the elections to the
House of the People or Legislative Assembly
is a constitutional right but not merely a
statutory right; freedom of voting as distinct
from right to vote is a facet of the fundamental
right enshrined in Article 19(1)(a). The casting
of vote in favour of one or the other candidate
marks the accomplishment of freedom of
expression of the voter.
(3) The directives given by this Court in Union
of India v. Assn. for Democratic Reforms ,
(2002) 5 SCC 294 were intended to operate
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only till the law was made by the legislature
and in that sense "pro tempore" in nature.
Once legislation is made, the Court has to
make an independent assessment in order to
evaluate whether the items of information
statutorily ordained are reasonably adequate
to secure the right of information available to
the voter/citizen. In embarking on this
exercise, the points of disclosure indicated by
this Court, even if they be tentative or ad hoc
in nature, should be given due weight and
substantial departure therefrom cannot be
countenanced.
(4) The Court has to take a holistic view and
adopt a balanced approach in examining the
legislation providing for right to information
and laying down the parameters of that right.
(5) Section 33-B inserted by the
Representation of the People (Third
Amendment) Act, 2002 does not pass the test
of constitutionality, firstly, for the reason that it
imposes a blanket ban on dissemination of
information other than that spelt out in the
enactment irrespective of the need of the hour
and the future exigencies and expedients and
secondly, for the reason that the ban operates
despite the fact that the disclosure of
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information now provided for is deficient and
inadequate.
(6) The right to information provided for by
Parliament under Section 33-A in regard to the
pending criminal cases and past involvement
in such cases is reasonably adequate to
safeguard the right to information vested in the
voter/citizen. However, there is no good
reason for excluding the pending cases in
which cognizance has been taken by the Court
from the ambit of disclosure.
(7) The provision made in Section 75-A
regarding declaration of assets and liabilities
of the elected candidates to the Speaker or the
Chairman of the House has failed to effectuate
the right to information and the freedom of
expression of the voters/citizens. Having
accepted the need to insist on disclosure of
assets and liabilities of the elected candidate
together with those of the spouse or
dependent children, Parliament ought to have
made a provision for furnishing this
information at the time of ?ling the nomination.
Failure to do so has resulted in the violation of
guarantee under Article 19(1)(a).
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(8) The failure to provide for disclosure of
educational qualification does not, in practical
terms, infringe the freedom of expression.
(9) The Election Commission has to issue
revised instructions to ensure implementation
of Section 33-A subject to what is laid down in
this judgment regarding the cases in which
cognizance has been taken. The Election
Commission's orders related to disclosure of
assets and liabilities will still hold good and
continue to be operative. However, Direction 4
of para 14 insofar as verification of assets and
liabilities by means of summary enquiry and
rejection of nomination paper on the ground of
furnishing wrong information or suppressing
material information should not be enforced."
63. From the above decision, what transpires is that
there is need to insist on disclosure of assets and liabilities of
the elected candidate together with those of the spouse or
dependent children and the Parliament ought to have made a
provision for furnishing this information at the time of filing the
nomination. Failure to do so has resulted in the violation of the
guarantee under Article 19 (1) (a) of the Constitution of India.
Further, the inference which can be drawn is that failure to
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furnish information as regards the non-disclosure of correct
assets and liabilities by a candidate would be a serious lapse
on the part of the candidate, as it would violate the right of the
voters.
64. Pursuant to the decision of the Hon'ble Supreme
Court in Association for Democratic Reforms (supra), Rule
4A was inserted. Rule 4A is quoted hereunder for ready
reference:
"4A. Form of affidavit to be filed at the time of
delivering nomination paper.- The candidate
or his proposer, as the case may be, shall, at
the time of delivering to the returning officer
the nomination paper under sub-section (1) of
section 33 of the Act, also deliver to him an
affidavit sworn by the candidate before a
Magistrate of the first class or a Notary in Form
26."
65. In terms of the aforesaid Rule 4A, a candidate has
to submit an affidavit with detailed particulars as provided in
Form 26. Paras 7 and 8 of Form 26 require giving information
about the details of movable and immovable assets of the
candidate, spouse and children. It is in the Form 26 submitted
by the first respondent that he had failed to disclose his wife's
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account details, failed to disclose the details of his vehicle and
also failed to disclose his non-agricultural land, which are at the
serious dispute between the parties in this election petition.
66. This was followed by the decision in People's
Union for Civil Liberties (PUCL) and another vs. Union of
India and others (2003) 4 SCC 399. The amended Section 33-
B was declared null and void and ultra vires the Constitution as
it went beyond legislative competence, as the Hon'ble Supreme
Court has already held that the voter has a fundamental right
under Article 19(1)(a) to know the antecedents of the candidate.
The Hon'ble Supreme Court further emphasized the relevance
of disclosure of information and held thus:
"70. Hence, in our view, right of a voter to
know the bio-data of a candidate is the
foundation of democracy. The old dictum --
let the people have the truth and the freedom
to discuss it and all will go well with the
Government -- should prevail.
78. What emerges from the above
discussion can be summarised thus:
A)......
.........
........
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(D)............ However, voters'
fundamental right to know the antecedents of
a candidate is independent of statutory rights
under the election law. A voter is first citizen
of this country and apart from statutory rights,
he is having fundamental rights conferred by
the Constitution. Members of a democratic
society should be sufficiently informed so that
they may cast their votes intelligently in
favour of persons who are to govern them.
Right to vote would be meaningless unless
the citizens are well informed about the
antecedents of a candidate. There can be
little doubt that exposure to public gaze and
scrutiny is one of the surest means to
cleanse our democratic governing system
and to have competent legislatures.
(E) It is established that fundamental
rights themselves have no fixed content,
most of them are empty vessels into which
each generation must pour its content in the
light of its experience. The attempt of the
Court should be to expand the reach and
ambit of the fundamental rights by process of
judicial interpretation. During the last more
than half a decade, it has been so done by
this Court consistently. There cannot be any
distinction between the fundamental rights
mentioned in Chapter III of the Constitution
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and the declaration of such rights on the
basis of the judgments rendered by this
Court."
67. The decisions of the Hon'ble Supreme Court in the
cases of Association for Democratic Reforms and People's
Union for Civil Liberties (PUCL), supra, are widely recognized
as the strong base of electoral reforms in India. Statutory
interpretation therein onwards has been strict, implementing the
maxim that the right of the voter to know the bio-data of the
candidate is the foundation of democracy.
68. This Court would like to refer to the subsequent
decision of the Hon'ble Supreme Court in the case of
Resurgence India v. Election Commission of India, (2014)
14 SCC 189, wherein the Hon'ble Supreme Court re-examined
the issue of the decisions rendered in Association for
Democratic Reforms (supra) and PUCL (supra).
69. In Resurgence India (supra), the Hon'ble
Supreme Court re-visited the relevant laws and issued the
following directions:
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"29. What emerges from the above discussion
can be summarised in the form of the following
directions:
29.1. The voter has the elementary right to
know full particulars of a candidate who is to
represent him in Parliament/Assemblies and
such right to get information is universally
recognised. Thus, it is held that right to know
about the candidate is a natural right flowing
from the concept of democracy and is an
integral part of Article 19(1)(a) of the
Constitution.
29.2. The ultimate purpose of filing of affidavit
along with the nomination paper is to
effectuate the fundamental right of the citizens
under Article 19(1)(a) of the Constitution of
India. The citizens are supposed to have the
necessary information at the time of ?ling of
nomination paper and for that purpose, the
Returning Officer can very well compel a
candidate to furnish the relevant information.
29.3. Filing of affidavit with blank particulars
will render the affidavit nugatory.
29.4. It is the duty of the Returning Officer to
check whether the information required is fully
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furnished at the time of filing of affidavit with
the nomination paper since such information is
very vital for giving effect to the "right to know"
of the citizens. If a candidate fails to fill the
blanks even after the reminder by the
Returning Officer, the nomination paper is fit to
be rejected. We do comprehend that the
power of the Returning Officer to reject the
nomination paper must be exercised very
sparingly but the bar should not be laid so high
that the justice itself is prejudiced.
29.5. We clarify to the extent that para 73 of
People's Union for Civil Liberties case1 will not
come in the way of the Returning Officer to
reject the nomination paper when the affidavit
is ?led with blank particulars.
29.6. The candidate must take the minimum
effort to explicitly remark as "NIL" or "Not
Applicable" or "Not known" in the columns and
not to leave the particulars blank.
29.7. Filing of affidavit with blanks will be
directly hit by Section 125-A(i) of the RP Act.
However, as the nomination paper itself is
rejected by the Returning Officer, we find no
reason why the candidate must be again
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penalised for the same act by prosecuting
him/her."
70. From the above directions of the Hon'ble Supreme
Court, the right to know full particulars of a candidate, which
includes information about the assets and liabilities of the
candidate, his spouse and dependents, has been recognized
as a vital part of Article 19 (1) (a) of the Constitution of India. In
Resurgence India (supra), the Hon'ble Supreme Court also
held that filing of an affidavit with blanks qua particulars sought
would make it liable to be rejected by the Returning Officer.
71. In Kisan Shankar Kathore v. Arun Dattatray
Sawant, (2014) 14 SCC 162, the Hon'ble Supreme Court held
as follows:
"40. We have already reproduced above the
relevant portions of judgments in Assn. for
Democratic Reforms [Union of India v. Assn.
for Democratic Reforms, (2002) 5 SCC 294]
and People's Union for Civil Liberties
[People's Union for Civil Liberties v. Union of
India, (2003) 4 SCC 399] and the guidelines
issued by the Election Commission pursuant
thereto. A conjoint and combined reading
thereof clearly establishes that the main
reason for issuing directions by this Court
and guidelines by the Election Commission
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pursuant thereto is that the citizens have
fundamental right under Article 19(1)(a) of
the Constitution of India to know about the
candidates contesting the elections and this
is the primary reason that casts a solemn
obligation on these candidates to furnish
information regarding the criminal
antecedents, educational qualifications and
assets held by the candidate, his spouse and
dependent children. It is on that basis that not
only the Election Commission has issued
guidelines, but also prepared formats in
which the affidavits are to be filed. As a
fortiori, it follows that if the required
information as per the said format in respect
of the assets of the candidate, his wife and
dependent children, is not given, it would
amount to suppression/non-disclosure."
72. In Krishnamoorthy Vs. Sivakumar, (2015) 3
SCC 467, the Hon'ble Supreme Court held that voter has a
fundamental right to know about the candidates contesting the
elections as that is essential and a necessary concomitant for a
free and fair election. Therefore, disclosure of criminal
antecedents is a categorical imperative and non-disclosure
would amount to undue influence. Concealment would come
within the compartment of direct or indirect interference or
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attempt to interfere with the free exercise of the right to vote.
The requirement of disclosure, especially of the criminal
antecedents, enables a voter to have an informed and
instructed choice.
73. In Public Interest Foundation and others v.
Union of India and another, (2019) 3 SCC 224, the issue that
fell for consideration of the Hon'ble Supreme Court was whether
disqualification for membership can be laid down by the Court
beyond Articles 102 (a) to (d) and the law made by the
Parliament under Article 102(c). The Hon'ble Supreme Court
observed,
"115. ........ The information given by a
candidate must express everything that is
warranted by the Election Commission as per
law. Disclosure of antecedents makes the
election a fair one and the exercise of the right
of voting by the electorate also gets sanctified.
It has to be remembered that such a right is
paramount for a democracy. A voter is entitled
to have an informed choice. If his right to get
proper information is scuttled, in the ultimate
eventuate, it may lead to destruction of
democracy because he will not be an informed
voter having been kept in the dark about the
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candidates who are accused of heinous
offences. ....."
74. By the aforesaid decisions, the Hon'ble Supreme
Court emphasized that the right to vote is sacrosanct and
inviolable and an elector can effectively exercise this right only
when he is presented with mirror images of the candidates
contesting the elections to the Indian Parliament and/or the
State Legislature containing array of information on all aspects
of the candidates. An informed decision would make the
election process more inclusive and effective, leading to
realizing vibrant democratic institutions. Hon'ble Supreme Court
firmly put in place the system of full disclosure on all aspects of
a contestant ushering in a new era.
75. In the light of the law laid down by the Hon'ble
Supreme Court, now it is expedient to consider the statutory
frame work on the disclosure of information by the candidates
and the effect of non-disclosure. The following provisions are
relevant in the case on hand and, therefore, they are quoted
hereunder:
"2(1)(c) "corrupt practice" means
any of the practices specified in
Section 123.
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33-A. Right to information.--(1) A
candidate shall, apart from any information
which he is required to furnish, under this Act
or the rules made thereunder, in his
Nomination Paper delivered under sub-
section (1) of Section 33, also furnish the
information as to whether--
(i) he is accused of any offence
punishable with imprisonment for two
years or more in a pending case in
which a charge has been framed by the
court of competent jurisdiction;
(ii ) he has been convicted of an
offence other than any offence referred
to in sub-section (1) or sub-section (2),
or covered in subsection (3) of Section
8 and sentenced to imprisonment for
one year or more.
(2) The candidate or his proposer, as the
case may be, shall, at the time of delivering
to the Returning Officer the Nomination
Paper under sub-section (1) of Section 33,
also deliver to him an affidavit sworn by the
candidate in a prescribed form verifying the
information specified in sub-section (1).
(3) The Returning Officer shall, as soon as
may be after the furnishing of information to
him under sub-section (1), display the
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aforesaid information by affixing a copy of the
affidavit, delivered under sub-section (2), at a
conspicuous place at his office for the
information of the electors relating to a
constituency for which the Nomination Paper
is delivered.
S.100. Grounds for declaring election to
be void.- (1) Subject to the provisions of
Sub-section (2) if the High Court is of opinion-
(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 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.
S.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
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on the part of the candidate or his agent, or
of any other person 279[with the consent of
the candidate or his election agent], with the
free exercise of any electoral right:
Provided that--
(a) without prejudice to the generality of the
provisions of this clause any such person as
is referred to therein who--
(i) threatens any candidate or any elector, or
any person in whom a candidate or an elector
is interested, with injury of any kind including
social ostracism and excommunication or
expulsion from any caste or community; or
(ii) induces or attempts to induce a candidate
or an elector to believe that he, or any person
in whom he is interested, will become or will
be rendered an object of divine displeasure
or spiritual censure,
shall be deemed to interfere with the free
exercise of the electoral right of such
candidate or elector within the meaning of
this clause;
(b) a declaration of public policy, or a promise
of public action, or the mere exercise of a
legal right without intent to interfere with an
electoral right, shall not be deemed to be
interference within the meaning of this
clause.
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S.125-A. Penalty for filing false affidavit,
etc. - A candidate who himself or through his
prosper, with intent to be elected in an
election,--
(i) fails to furnish information relating to sub-
section (1) of Section 33-A; or
(ii) gives false information which he knows or
has reason to believe to be false; or
(iii) conceals any information,
In his nomination paper delivered under sub-
section (1)of Section 33 or in his affidavit
which is required to be delivered under sub-
section (2) of Section 33-A, 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."
76. Section 2(1)(c) defines 'corrupt practice' meaning
as specified in Section 123 of the RP Act.
77. Section 33-A of the RP Act recognizes inalienable
right of a citizen to know everything of candidates contesting the
elections offering to represent the citizens in the Central or State
legislature. It therefore obligates the candidates to disclose all
information about themselves and their family members,
including the criminal record of the candidates.
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78. Section 123 of the RP Act incorporates what
constitutes corrupt practices. What is shown therein is
illustrative and the Act intends to give wide scope to the term
'corrupt practice'. Non-disclosure of information on pending
crimes by a contestant amounts to 'Undue influence' scuttling
the right of an elector in assessing the suitability of the
candidate and is a 'corrupt practice'. It is a ground to disqualify
an elected candidate under Section 100 of the Act, 1951.
79. As per Section 100 of the RP Act, whenever it is
established that the elected candidate resorted to 'corrupt
practice' to win the election, his election can be declared as
void.
80. Along with the nomination paper, a candidate is
required to file an affidavit in Form 26. The affidavit should be
sworn before a Magistrate of the First Class or before a Notary
Public or a Commissioner of Oaths appointed by the High Court
of the State concerned. The duly sworn affidavits should be on
stamp paper of such denomination as prescribed under the
State law of the State concerned. While supplying forms of
nomination papers, the Returning Officer will attach to
nomination form a copy of Form 26 appended to the Conduct of
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Election Rules, 1961. No column of the affidavit should be left
blank or filled by just tick/dash marking. If the information asked
for in a column is 'Nil' or not applicable or not known to the
candidate then he should write 'Nil' or 'Not applicable' in that
column.
81. The Hon'ble Supreme Court, time and again, held
that in the affidavits filed by candidate along with their
nomination paper, the candidates are required to fill up all
columns therein and no column can be left blank. Therefore, at
the time of filing of affidavit, it is the bounden duty of the
Returning Officer to verify whether all the columns of the
affidavit filed with the nomination paper are filled up. If not, the
Returning Officer shall give a reminder in prescribed checklist
to the candidate to furnish information against blank columns.
The candidate must submit a revised affidavit with columns duly
filled up before the commencement of scrutiny of nominations,
failing which the nomination paper will be liable to be rejected.
82. The Hon'ble Supreme Court further held that if
there is no information to be furnished against any item,
appropriate remarks such as 'NIL' or 'Not Applicable' or 'Not
Known' as may be applicable shall be indicated in such column.
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They should not leave any column blank. If a candidate fails to
fill the blanks even after reminder, the nomination paper will be
liable to be rejected by the Returning Officer at the time of
scrutiny of nomination papers. Copies of the affidavits will be
displayed in the premises of a public place within the
constituency freely accessible to the general public. Displaying
copies on the Returning Officer's notice board will be done in all
cases, even if the office is outside the boundary of the
constituency. Uploading of affidavits filed by candidates in the
website. Such uploading should also be done within 24 hours
of filing of the same. The affidavits filed by candidates were to
be disseminated by displaying copies thereof on the notice
board of the Returning Officer and by making copies available
freely to those seeking the same.
83. The Hon'ble Supreme Court further held that the
information furnished by the contesting candidates in relation to
the Government dues to the five departments mentioned in item
(8)(ii) & (iii) of the affidavit will be published by the Returning
Officers concerned in at least two newspapers having local
circulation, one of which should be a vernacular newspaper.
This should be published by the Returning Officer within two
days after preparing the list of contesting candidates. If there is
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more than one constituency in a District, the District Election
Officer will publish the above information in a consolidated form
in respect of all constituencies (constituency wise) in that
District. When the information on Government dues is published
in the newspaper, there will be a note added therein mentioning
the places where the other details viz., criminal background,
assets, liabilities and education qualification of all the contesting
candidates, can be found. The note will also mention that the
affidavit can be viewed on the website of the Chief Election
Officer and path to the website will also be mentioned.
84. In the light of the aforesaid principles, this Court
proceeds to deal with the matter. According to the learned
counsel for the petitioner, the nomination papers filed by the first
respondent dated 21.3.2019 was improperly accepted by the
first respondent in violation of the provisions of laws and
instructions of the Election Commission of India. He would
submit that the various pronouncement of the judgments of the
Hon'ble Supreme Court it has been held that it is mandatory to
accompany Form 26 and none of the columns left blank in Form
26 which is in the form of affidavit. If a nomination paper
accompanied with incomplete and/or incorrect information is
accepted by the Returning Officer, then it is considered as
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improper acceptance which would materially affect the election
of the other candidate.
85. The learned counsel for the petitioner urged that
non-disclosure of material information required and withholding
of material information or concealment of material information
in the affidavit filed along with the nomination paper in the
election of the Parliament by the first respondent, the election
of the first respondent has to be set aside. He added that if the
corrupt practice is proven, the Court is bound to declare the
election of the returned candidate to be void.
86. To fortify his submission, learned counsel for the
petitioner relied upon the following decisions:
(i) Kisan Shankar Kathore v. Arun
Dattatray Sawant and others, (2014)
14 SCC 162.
(ii) Krishnamoorthy v. Sivakumar and
others, (2015) 3 SCC 467.
(iii) M.Narayan Rao v. G.Venkata Reddy
and others, (1977) 1 SCC 771.
(iv) Mayanglambam Rameshwar Singh v.
Yengkhom Surchandra Singh and
others, 2020 SCC OnLine Mani 312.
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87. In Kisan Shankar Kathore, (supra), the Hon'ble
Supreme Court held thus:
"43. When the information is given by a
candidate in the affidavit filed along with the
nomination paper and objections are raised
thereto questioning the correctness of the
information or alleging that there is non-
disclosure of certain important information, it
may not be possible for the Returning Officer
at that time to conduct a detailed examination.
Summary enquiry may not suffice. The
present case is itself an example which loudly
demonstrates this. At the same time, it would
not be possible for the Returning Officer to
reject the nomination for want of verification
about the allegations made by the objector. In
such a case, when ultimately it is proved that
it was a case of non-disclosure and either the
affidavit was false or it did not contain
complete information leading to suppression,
it can be held at that stage that the nomination
was improperly accepted. Ms Meenakshi
Arora, learned Senior Counsel appearing for
the Election Commission, rightly argued that
such an enquiry can be only at a later stage
and the appropriate stage would be in an
election petition as in the instant case, when
the election is challenged. The grounds stated
in Section 36(2) are those which can be
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examined there and then and on that basis the
Returning Officer would be in a position to
reject the nomination. Likewise, where the
blanks are left in an affidavit, nomination can
be rejected there and then. In other cases
where detailed enquiry is needed, it would
depend upon the outcome thereof, in an
election petition, as to whether the nomination
was properly accepted or it was a case of
improper acceptance. Once it is found that it
was a case of improper acceptance, as there
was misinformation or suppression of material
information, one can state that question of
rejection in such a case was only deferred to a
later date. When the Court gives such a
finding, which would have resulted in rejection,
the effect would be same, namely, such a
candidate was not entitled to contest and the
election is void. Otherwise, it would be an
anomalous situation that even when criminal
proceedings under Section 125-A of the Act
can be initiated and the selected candidate is
criminally prosecuted and convicted, but the
result of his election cannot be questioned.
This cannot be countenanced."
88. In Krishnamoorthy supra, the Hon'ble Supreme
Court held as under:
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"60. The purpose of referring to the same is to
remind one that the right to contest in an
election is a plain and simple statutory right
and the election of an elected candidate can
only be declared null and void regard being
had to the grounds provided in the statutory
enactment. And the ground of "undue
influence" is a part of corrupt practice.
61. Section 100 of the 1951 Act provides
for grounds for declaring election to be void.
Section 100(1) which is relevant for the
present purpose 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--
(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 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
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(d) that the result of the election, insofar 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 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."
89. Mayanglambam Rameshwar Singh, supra, this
Court held as hereunder:
"88. In fact, in his election petition as well as
oral evidence, the petitioner has clearly stated
that the result of the election in so far asit
concerns the first respondent has been
materially affected on the grounds indicated in
paragraph (20) of the election petition. The
non-disclosure of the assets of his wife in the
affidavit in Form 26 has been admitted by the
first respondent. The aforesaid one example is
enough to conclude that the first respondent
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has failed to disclose his wife's assets in his
nomination paper. In view of the above
admission made by the first respondent, this
Court is of the view that there is no need to
elaborate upon the decisions relied on by the
first respondent and the same are not helpful
to the case of the first respondent Though the
first respondent contended that the oral
evidence of P.W.1 and P.W.2 are not reliable,
nothing has been produced to prove the same
and also there is no reasoning coming forth
from the side of the first respondent to
strengthen their version."
90. The learned senior counsel for the first respondent
submitted that since there was defect in the nomination paper
dated 21.03.2019, a revised nomination paper and the revised
affidavit in Form 26 have been filed on 25.03.2019, which was
accepted by the Returning Officer after scrutiny. The aforesaid
contention of the first respondent has not been materially
proved. This Court already came to the conclusion that only
affidavit in From 26 dated 21.3.2019 was uploaded officially and
there is no record to show that affidavit in From 26 dated
25.3.2019 of the first respondent was accepted by the
Returning Officer and was uploaded in the website.
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91. When this Court examined Para 4 of the affidavit
Form 26 dated 21.03.2019, the first respondent kept Column 5
blank. The first respondent in his evidence also confirmed that
he has not filled and left blank the details of his spouse, her
source of income, details of returns for the last five years.
92. It is pertinent to point out that the provision of RP
Act provides for filing of maximum four nomination papers, but
as per Section 33A of the RP Act read with Rule 4A, the
candidate is required to file a duly sworn affidavit under Form
26 along with the nomination papers containing true and correct
facts along with complete information, which cannot be
different. The four nomination papers must be accompanied
with the same affidavit under Form 26.In the case on hand, as
stated supra, the first respondent left column 5 of para 4 of the
affidavit in Form 26 dated 21.3.2019 blank, which was also
admitted by the first respondent in his evidence. Acceptance of
such unfilled and/or blank affidavit by the Returning Officer is
against the provisions of law and also amounts to improper
acceptance.
93. Coming to election expenditure, in order to
facilitate monitoring of election expenditure, the Election
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Commission of India issued notification dated 15.10.2013
whereby the Election of India has made it mandatory for each
candidate to open a separate bank account exclusively for the
purpose of election expenditure. The election account should
be opened any time at least one day before the date on which
the candidate intends to file his nomination papers and the
account number must be communicated by the candidate in
writing to the Returning Officer at the time of filing of his
nomination.
94. The petitioner pleaded that the first respondent
has failed to maintain true and correct account of all
expenditures in connection with the election and the same is in
violation of Section 77 of the RP Act, thereby he has committed
corrupt practice as defined under Section 123(6) of the RP Act.
Therefore, the election of the first respondent is liable to be
declared void under Section 100(1)(b) read with Section
100(1)(d)(iv) of the RP Act.
95. Sections 77 and 123 of the RP Act provide thus:
"77. Account of election expenses and
maximum thereof.--(1) Every candidate at
an election shall, either by himself or by his
election agent, keep a separate and correct
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account of all expenditure in connection with
the election incurred or authorized by him or
by his election agent between the date on
which he has been nominated and the date of
declaration of the result thereof, both dates
inclusive.
Explanation 1.--For the removal of doubts, it
is hereby declared that--
(a) the expenditure incurred by leaders of
a political party on account of travel by air
or by any other means of transport for
propagating programme of the political
party shall not be deemed to be the
expenditure in connection with the
election incurred or authorised by a
candidate of that political party or his
election agent for the purposes of this
sub-section.
(b) any expenditure incurred in respect of
any arrangements made, facilities
provided or any other act or thing done
by any person in the service of the
Government and belonging to any of the
classes mentioned in clause (7) of
section 123 in the discharge or purported
discharge of his official duty as
mentioned in the proviso to that clause
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shall not be deemed to be expenditure in
connection with the election incurred or
authorised by a candidate or by his
election agent for the purposes of this
sub-section.
Explanation 2.--For the purposes of
clause (a) of Explanation 1, the
expression "leaders of a political party",
in respect of any election, means,--
(i) where such political party is a
recognised political party, such
persons not exceeding forty in
number, and
(ii) where such political party is other
than a recognised political party,
such persons not exceeding twenty
in number, whose names have been
communicated to the Election
Commission and the Chief Electoral
Officers of the States by the political
party to be leaders for the purposes
of such election, within a period of
seven days from the date of the
notification for such election
published in the Gazette of India or
Official Gazette of the State, as the
case may be, under this Act:
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Provided that a political party may, in
the case where any of the persons
referred to in clause (i) or, as the
case may be, in clause (ii) dies or
ceases to be a member of such
political party, by further
communication to the Election
Commission and the Chief Electoral
Officers of the States, substitute new
name, during the period ending
immediately before forty-eight hours
ending with the hour fixed for the
conclusion of the last poll for such
election, for the name of such person
died or ceased to be a member, for
the purposes of designating the new
leader in his place.
(2) The account shall contain such particulars,
as may be prescribed.
(3) The total of the said expenditure shall not
exceed such amount as may be prescribed.
"123. Corrupt practices.--The following
shall be deemed to be corrupt practices for
the purposes of this Act:--
(1) .....
(2) .....
(3) .....
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(4) ......
(5) ......
(6) The incurring or authorizing of expenditure
in contravention of section 77.
96. The learned counsel for the petitioner submitted
that when the total amount withdrawn for running expenses and
other expenses for the election is calculated from Ext.Z/9, the
total amount comes around Rs.74,13,100/-, which is beyond the
limit of Rs.70 lakh set for the Lok Sabha election and, therefore,
is in violation of Section 77(3) of the RP Act, coupled with the
fact that there is a corrupt practice under Section 123(6) of the
RP Act and on the said ground also, the election of the first
respondent is liable to be declared as null and void. He
submitted that this Court cannot ignore the said illegality and
the fraudulent act of the first respondent in not providing true
and correct statement of expenditures/accounts.
97. At this juncture, by placing reliance upon the
decision of the Hon'ble Supreme Court in the case of
L.R.Shivaramagowda v. T.M.Chandrashekar, (1999) 1 SCC
666, the learned senior counsel for the first respondent
submitted that the excess expenditure and failure to maintain
true and correct accounts alone does not amount to corrupt
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practice. The learned counsel for the first respondent has also
drawn the attention to the deposition of P.W.4 and D.W.7 and
submitted that there were no irregularities in the maintenance
of the statement of election expenditure and the same has been
duly accepted after satisfaction by the Returning Officer and
also within the applicable Act and the Rules. It is also the
submission of the learned senior counsel that the Expenditure
Observer has not properly discharged his duties that does not
mean that the illegality committed by the first respondent can
be allowed to be sustained is unacceptable, as it has neither
been raised during the trial nor pleaded in the election petition.
98. The learned senior counsel further submitted that
the irregularity in the maintenance of the election expenditures
does not have any fatal effect when the election expenditures
were verified and accepted by the Expenditures Observer. He
submits that if the election expenditure is accepted in violation
of law, the petitioner ought to have approached the Election
Commission of India under Section 10A of the RP Act.
Admittedly, the petitioner has failed to do so. Therefore, he
cannot now take such plea.
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99. In L.R.Shivaramagowda, supra, the Hon'ble
Supreme Court held as under:
"10. That apart, it is rightly pointed out by the
appellant's counsel that in order to declare an
election to be void under Section 100(1)(d)(iv),
it is absolutely necessary for the election
petitioner to plead that the result of the election
insofar as it concerned the returned candidate
had been materially affected by the alleged
non-compliance with the provisions of the Act
or of the Rules. We have already extracted
para 39 of the election petition which is the
only relevant paragraph. One will search in
vain for an averment in that paragraph that the
appellant had spent for the election an amount
exceeding the prescribed limit or that the result
of the election was materially affected by the
failure of the appellant to give true and correct
accounts of expenditure. In the absence of
either averment, it was not open to the
appellant to adduce evidence to that effect. It
cannot be denied that the two matters referred
to above are material facts which ought to find
a place in an election petition if the election is
sought to be set aside on the basis of such
facts.
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11. This Court has repeatedly stressed the
importance of pleadings in an election petition
and pointed out the difference between
"material facts" and "material particulars".
While the failure to plead material facts is fatal
to the election petition and no amendment of
the pleading could be allowed to introduce
such material facts after the time-limit
prescribed for filing the election petition, the
absence of material particulars can be cured
at a later stage by an appropriate amendment.
In Balwan Singh v. Lakshmi Narain [AIR 1960
SC 770 : (1960) 3 SCR 91] the Constitution
Bench held that an election petition was not
liable to be dismissed in limine merely
because full particulars of corrupt practice
alleged were not set out. On the facts of the
case, the Court found that the alleged corrupt
practice of hiring a vehicle for the conveyance
of the voters to the polling station was
sufficiently set out in the pleading. The Court
pointed out that the corrupt practice being
hiring or procuring of the vehicle for the
conveyance of the electors, if full particulars of
conveying by a vehicle of electors to or from
any polling stations were given, Section 83
was duly complied with, even if the particulars
of the contract of hiring, as distinguished from
the fact of hiring were not given.
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12. In Samant N. Balkrishna v. George
Fernandez [(1969) 3 SCC 238] the Court said
that if the material facts of the corrupt practice
are stated, more or better particulars of the
charge may be given later, but where the
material facts themselves are missing, it is
impossible to think that the charge has been
made and later amplified and that would
tantamount to making of a fresh petition.
12A. In Virendra Kumar Saklecha v.
Jagjiwan [(1972) 1 SCC 826] this Court
stressed the importance of disclosure of
sources of information in the affidavit filed
along with the election petition. The relevant
passage reads thus: (SCC pp. 830 & 831,
paras 10, 13-15)
"10. The respondent filed an affidavit along
with the election petition. The affidavit did not
disclose the source of information in respect of
the speeches alleged to have been made by
the appellant. Section 83 of the Act requires an
affidavit in the prescribed form in support of
allegations of corrupt practice. Rule 94-A of
the Conduct of Elections Rules, 1961, requires
an affidavit to be in Form No. 25. Form No. 25
requires the deponent to state which
statements are true to knowledge and which
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statements are true to information. Under
Section 87 of the Act every election petition
shall be tried by the High Court as nearly as
may be in accordance with the procedure
applicable under the Code of Civil Procedure
to the trial of suits. Under Section 102 of the
Code the High Court may make rules
regulating their own procedure and the
procedure of the civil courts subject to their
supervision and may by such rules vary, alter
or add to any of the rules in the First Schedule
to the Code.
***
13. The importance of setting out the
sources of information in affidavits came up for
consideration before this Court from time to
time. One of the earliest decisions is State of
Bombay v. Purushottam Jog Naik [AIR 1952
SC 317] where this Court endorsed the
decision of the Calcutta High Court
in Padmabati Dasi v. Rasik Lal Dhar [ILR
(1909) 37 Cal 259] and held that the sources
of information should be clearly disclosed.
Again, in Barium Chemicals Ltd. v. Company
Law Board [AIR 1967 SC 295] this Court
deprecated 'slipshod verifications' in an
affidavit and reiterated the ruling of this Court
in Bombay case [AIR 1952 SC 317] that
verification should invariably be modelled on
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the lines of Order 19 Rule 3 of the Code
'whether the Code applies in terms or not'.
Again, in A.K.K. Nambiar v. Union of
India [(1969) 3 SCC 864] this Court said that
the importance of verification is to test the
genuineness and authenticity of allegations
and also to make the deponent responsible for
allegations.
14. Counsel on behalf of the appellant
contended that non-disclosure of the sources
of information in the affidavit was a fatal defect
and the petition should not have been
entertained. It is not necessary to express any
opinion on that contention in view of the fact
that the matter was heard for several months
in the High Court and thereafter the appeal
was heard by this Court. The grounds or
sources of information are to be set out in an
affidavit in an election petition. Counsel on
behalf of the respondent submitted that the
decisions of this Court were not on election
petitions. The rulings of this Court are
consistent. The grounds or sources of
information are to be set out in the affidavit
whether the Code applies or not. Section 83 of
the Act states that an election petition shall be
verified in the manner laid down in the Code.
The verification is as to information received.
The affidavit is to be modelled on the
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provisions contained in Order 19 of the Code.
Therefore, the grounds or sources of
information are required to be stated.
15. The non-disclosure of grounds or
sources of information in an election petition
which is to be filed within forty-five days from
the date of election of the returned candidate,
will have to be scrutinised from two points of
view. The non-disclosure of the grounds will
indicate that the election petitioner did not
come forward with the sources of information
at the first opportunity. The real importance of
setting out the sources of information at the
time of the presentation of the petition is to
give the other side notice of the
contemporaneous evidence on which the
election petition is based. That will give an
opportunity to the other side to test the
genuineness and veracity of the sources of
information. The other point of view is that the
election petitioner will not be able to make any
departure from the sources or grounds, if there
is any embellishment of the case it will be
discovered."
13. In Udhav Singh v. Madhav Rao
Scindia [(1977) 1 SCC 511] a Division Bench
of this Court explained the distinction between
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material facts and material particulars as
follows: (SCC p. 523, paras 42-43)
"42. All the primary facts which must be
proved at the trial by a party to establish the
existence of a cause of action or his defence,
are 'material facts'. In the context of a charge
of corrupt practice 'material facts' would mean
all the basic facts constituting the ingredients
of the particular corrupt practice alleged, which
the petitioner is bound to substantiate before
he can succeed on that charge. Whether in an
election petition, a particular fact is material or
not, and as such required to be pleaded is a
question which depends on the nature of the
charge levelled, the ground relied upon and
the special circumstances of the case. In
short, all those facts which are essential to
clothe the petitioner with a complete cause of
action are 'material facts' which must be
pleaded, and failure to plead even a single
material fact amounts to disobedience of the
mandate of Section 83(1)(a).
43. 'Particulars' on the other hand are 'the
details of the case set up by the party'.
'Material particulars' within the contemplation
of clause (b) of Section 83(1) would therefore
mean all the details which are necessary to
amplify, refine and embellish the material facts
already pleaded in the petition in compliance
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with the requirements of clause (a).
'Particulars' serve the purpose of finishing
touches to the basic contours of a picture
already drawn, to make it full, more detailed
and more informative."
The Bench held that if a petition suffers from
lack of material facts, it is liable to be
summarily rejected for want of cause of action
and if the deficiency is only of material
particulars, the Court has a discretion to allow
the petitioner to supply the required particulars
even after the expiry of limitation."
14. In F.A. Sapa v. Singora [(1991) 3 SCC
375] the Court considered the relevant
sections and the Rules at length and reiterated
the difference between material facts and
material particulars. The Court said: (SCC pp.
395-96, para 18)
"Section 83(1)(a) stipulates that every
election petition shall contain a concise
statement of the 'material facts' on which the
petitioner relies. That means the entire bundle
of facts which would constitute a complete
cause of action must be concisely stated in an
election petition. Section 83(1)(b) next
requires an election petitioner to set forth full
'particulars' of any corrupt practice alleged
against a returned candidate. These
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'particulars' are obviously different from the
'material facts' on which the petition is founded
and are intended to afford to the returned
candidate an adequate opportunity to
effectively meet with such an allegation. The
underlying idea in requiring the election
petitioner to set out in a concise manner all the
'material facts' as well as the 'full particulars',
where commission of corrupt practice is
complained of, is to delineate the scope, ambit
and limits of the inquiry at the trial of the
election petition."
With regard to the affidavit to be filed along
with the election petition in the prescribed
Form No. 25, the Court observed that the
defect in such affidavit could be cured unless
it formed the integral part of the petition in
which case, the defect concerning material
facts will have to be dealt with subject to
limitation under Section 81 of the Act.
15. In Gajanan Krishnaji Bapat v. Dattaji
Raghobaji Meghe [(1995) 5 SCC 347] a
Division Bench of which one of us (Anand, J.
as he then was) was a member dealt with this aspect of the matter in extenso and held that allegations of corrupt practice must be properly alleged and both material facts and particulars should be provided in the petition Election Petition No. 1 of 2019 P a g e | 104 itself so as to disclose the complete cause of action. The relevant passage in the judgment reads thus: (SCC pp. 361-62, paras 16-18) "16. The election law insists that to unseat a returned candidate, the corrupt practice must be specifically alleged and strictly proved to have been committed by the returned candidate himself or by his election agent or by any other person with the consent of the returned candidate or by his election agent. Suspicion, however strong, cannot take the place of proof, whether the allegations are sought to be established by direct evidence or by circumstantial evidence. Since pleadings play an important role in an election petition, the legislature has provided that the allegations of corrupt practice must be properly alleged and both the material facts and particulars provided in the petition itself so as to disclose a complete cause of action.
17. Section 83 of the Act provides that the election petition must contain a concise statement of the material facts on which the petitioner relies and further that he must set forth full particulars of the corrupt practice that he alleges including as full a statement as possible of the name of the parties alleged to have committed such corrupt practices and the date and place of the commission of each Election Petition No. 1 of 2019 P a g e | 105 of such corrupt practice. This section has been held to be mandatory and requires first a concise statement of material facts and then the full particulars of the alleged corrupt practice, so as to present a full picture of the cause of action.
18. A petition levelling a charge of corrupt practice is required, by law, to be supported by an affidavit and the election petitioner is also obliged to disclose his source of information in respect of the commission of the corrupt practice. This becomes necessary to bind the election petitioner to the charge levelled by him and to prevent any fishing or roving enquiry and to prevent the returned candidate from being taken by a surprise."
As regards amendment of pleadings in an election petition, the Bench held that there is a complete prohibition against any amendment being allowed which may have the effect of introducing either material facts not already pleaded or of introducing particulars of a corrupt practice not previously alleged in the petition. The Court pointed out that in that case, the High Court ought not to have allowed evidence to be led by the election petitioner which was beyond the pleadings of the parties for no amount of evidence can cure a defect in the pleadings but it was all the more improper Election Petition No. 1 of 2019 P a g e | 106 for the trial court to have allowed the pleadings to be amended so as to be brought in conformity with the evidence already led in the case.
16. If the above well-settled principles are applied in this case, there is no doubt whatever that the election petition suffers from a very serious defect of failure to set out material facts of the alleged corrupt practice. The defect invalidates the election petition in that regard and the petitioner ought not to have been permitted to adduce any evidence with reference to the same.
16A. We have already extracted paras (f) and
(g) of the affidavit filed along with the election petition. It does not disclose the source of information. Nor does it set out which part of the election petition was personally known to the petitioner and which part came to be known by him on information. Significantly, paras (a) to (e) of the affidavit state that the averments therein are true to his information. Para (f) is silent on this aspect of the matter. Para (g) refers to all the 42 paragraphs in the petition. The affidavit is not in conformity with the prescribed Form No. 25. Thus there is a failure to comply with Rule 94-A of the Conduct Election Petition No. 1 of 2019 P a g e | 107 of Elections Rules. It is a very serious defect which has been overlooked by the High Court.
17. Learned counsel for the first respondent made an attempt to show that the pleading contains the relevant material facts. According to him, para 39 of the election petition sets out the expenses incurred by the appellant per vehicle per day and the total number of vehicles used by him. It was also contended that the price of the newspaper Nagamangala Mitra per copy was mentioned and the total number of copies purchased for distribution to the voters was also mentioned. It was argued that those were the material facts and by themselves they proved that the appellant had incurred an expenditure exceeding the prescribed limit. We are unable to accept this contention. After setting out those figures, the averment found in the election petition is only to the effect that the said cost incurred by the appellant had not been furnished in his statement of account. The fact that in the last part of the said sentence, it was alleged that there was contravention of Section 123(6) of the Act, would not come to the aid of the first respondent to contend that the relevant material fact of excessive expenditure over and above the prescribed limit had been Election Petition No. 1 of 2019 P a g e | 108 pleaded. We must also refer to the fact that for the purpose of Section 100(1)(d)(iv), it is necessary to aver specifically that the result of the election insofar as it concerns a returned candidate has been materially affected due to the said corrupt practice. Such averment is absent in the petition.
18. We shall now proceed to the second limb of the argument of the appellant's counsel. The High Court has held that the appellant had not maintained a true and correct account of expenditure incurred or authorised and the same amounted to corrupt practice. "Corrupt practices" have been set out in Section 123 of the Act. According to the first respondent, the appellant is guilty of a corrupt practice described in sub-section (6) of Section 123. Under that sub-section, the incurring or authorising of expenditure in contravention of Section 77 of the Act is a corrupt practice. Section 77 provides that every candidate at an election shall keep a separate and correct account of all expenditure in connection with the election incurred or authorised by him or by his election agent and that the accounts shall contain such particulars as may be prescribed. Rule 86 of the Conduct of Elections Rules, 1961 sets out the particulars Election Petition No. 1 of 2019 P a g e | 109 to be contained in the account of election expenses. Sub-sections (1) and (2) of Section 77 deal only with the maintenance of account. Sub-section (3) of Section 77 provides that the total of the election expenses referred to in sub-section (1) shall not exceed such amount as may be prescribed. Rule 90 of the Conduct of Elections Rules prescribes the maximum limit for any Assembly Constituency. In order to declare an election to be void, the grounds were set out in Section 100 of the Act. Sub- section (1)(b) of Section 100 relates to any corrupt practice committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent. In order to bring a matter within the scope of sub-section (1)(b), the corrupt practice has to be one defined in Section 123. What is referred to in sub-section (6) of Section 123 as corrupt practice is only the incurring or authorising of expenditure in contravention of Section 77. Sub-section (6) of Section 123 does not take into its fold, the failure to maintain true and correct accounts. The language of sub-section (6) is so clear that the corrupt practice defined therein can relate only to sub-section (3) of Section 77, i.e., the incurring or authorising of expenditure in excess of the amount Election Petition No. 1 of 2019 P a g e | 110 prescribed. It cannot by any stretch of imagination be said that non-compliance with Sections 77(1) and (2) would also fall within the scope of Section 123(6). Consequently, it cannot fall under Section 100(1)(b). The attempt here by the first respondent is to bring it within Section 100(1)(d)(iv). The essential requirement under that sub-section is that the result of the election insofar as it concerns the returned candidate has been materially affected. It is needless to point out that failure on the part of the returned candidate to maintain accounts as required by Sections 77(1) and (2) will in no case affect, and much less materially, the result of the election."
100. In Govind Singh (supra), the Hon'ble Supreme Court held as under:
"73. Thus, while comparing the evidence of PW 9, PW 10, PW 11 and PW 12 relied upon by the respondent Smt Kaur with the evidence of PW 1, PW 2, PW 4, PW 5 and PW 6, it is not possible to attach more weight to the witnesses relied upon by the respondent herein as we cannot overlook the well-settled position that the behaviour, character and demeanour of the witnesses who had been examined at the stage of trial has to be taken into account and is of prime consideration. In Election Petition No. 1 of 2019 P a g e | 111 view of this position, the evidence of PW 1, PW 2, PW 4, PW 5 and PW 6 is clearly more reliable than PW 9, PW 10 and PW 11. ...
78. In view of the unsatisfactory analysis of the evidence and erroneous approach of the High Court while recording the finding on the issue of corrupt practice, we consider this appeal fit to be allowed as no conclusive inference can be drawn that the respondent Smt Kaur who had secured only third position in the election has succeeded in proving the charge of corrupt practice against the returned candidate, the appellant herein and the same at best can be held to be based on allegations which desperately required unimpeachable evidence of trustworthy nature adduced by independent witnesses which could not be treated as tainted or evidence of doubtful nature. Since the charge of corrupt practice has to be proved beyond reasonable doubt and not merely by preponderance of probabilities, the evidence relied upon by the High Court cannot be held to be of such probative value which does not reflect on the credibility of the witnesses relied upon by the High Court, so as to interfere with the election result by which the appellant had been Election Petition No. 1 of 2019 P a g e | 112 elected. Consequently, we set aside the judgment and order of the High Court and allow this appeal. However, the parties are left to bear their own costs."
101. As admitted by the first respondent, the election separate bank account was opened by the first respondent only on 24.03.2019. In his evidence, P.W.4 has clearly stated that as per the instructions of the Election Commission of India, a separate bank account exclusively for the purpose of election expenditure is required to be opened to facilitate monitoring of the election expenditure. The officially uploaded affidavit in Form 26 of the petitioner is dated 21.03.2019. Thus, it is clear that on the date of filing of the nomination papers i.e. on 21.03.2019, no bank account was opened by the first respondent. This clearly proves that the first respondent has violated the notification dated 15.10.2013 of the Election Commission of India. That apart, the first respondent did not maintain his election expenditures as per the instructions/guidelines of the Election Commission of India.
102. Any election expenses incurred without routing it through the said election separate bank account by way of cheque or draft or RTGS/NEFT will be treated that the Election Petition No. 1 of 2019 P a g e | 113 candidate has not maintained the accounts in the manner prescribed by the Election Commission of India. As per the notifications dated 12.11.2018 and 30.11.2018, the limit of allowing the expenditure has been revised to Rs.10,000/- and that the expenditure limit of Rs.10,000/- by cash in connection of an election consist of a single transaction or an aggregate of transactions entered into with a single person/entity during the entire poll period. Thus, all expenditures exceeding Rs.10,000/- whether by a single transaction or an aggregate of transactions with a single person/entity during the entire poll period have to be compulsorily made by cross account payee cheque or draft or by RTGS/NEFT or any other electronic mode linked with the separate election bank account of the candidate opened for election purpose.
103. Thus, from the aforesaid it is clear that all the election expenditures are to be made by the candidate only from the separate election bank account and all money to be spent on electioneering should also be deposited in the said account irrespective of its funding from any source, including candidate's own fund.
Election Petition No. 1 of 2019 P a g e | 114
104. According to the petitioner, the following are the illegalities committed by the first respondent in his election expenditures:
"On 21.03.2022, the first respondent expended a sum of Rs.19,250/- without routing from his election bank account.
On 25.03.2019, the first respondent expended Rs.3,300/- for filing second nomination paper without routing from his election bank account.
On 26.03.2019, Election Bank Account bearing No.1219102000005449 of IDBI Bank, Imphal was opened and operational which is after filing of his nomination paper on 21.03.2019.
On 28.03.2019, the first respondent incurred expenses in cash a sum of Rs.21,600/- wherein he has mentioned the payee to be multiple parties.
On 30.03.2019, the first respondent incurred expenses in cash a sum of Rs.11,200/- in favour of ZBCT Men Society though in separate transactions of Rs.10,000/- and Rs.1,200/-.
On 01.04.2019, the first respondent incurred expenses in cash amounting of Rs.26,500/- in favour of the Chief of the Village Election Petition No. 1 of 2019 P a g e | 115 for the meeting held at Laikoiching, Saikul in separate transactions.
On 06.04.2019, the first respondent incurred expenses in cash amount of Rs.13,400/- as vehicle expenses in three separate transactions of Rs.4000/-, Rs.4000/- and Rs.5400/-."
105. To rebut the aforesaid particulars, the first respondent has not produced any materials. However, the learned senior counsel submitted that the 2-Outer Parliamentary Constituency is predominantly remote hill areas with no facility of Banking in most of areas except in some District headquarters during 17th Lok Sabha Election, 2019 and the same is backed by unshaken evidence of D.W.4, D.W.5 and D.W.6 as also the evidence of D.W.1 and D.W.3.
106. A candidate is not free to spend as much as he likes in the election. The law prescribes that the total election expenditure shall not exceed the maximum limit prescribed under Rule 90 of the Conduct of Election Rules, 1961. For the State of Manipur in the 17th Lok Sabha Election, 2019, a candidate can spend up to Rs.70 lakh.
Election Petition No. 1 of 2019 P a g e | 116
107. On a perusal of Exts.Z/9 series, it is clear that the amount incurred for election expenses comes to Rs.74,13,218/-, which is beyond Rs.70 lakh as prescribed by the Election Commission of India. In fact, during cross- examination, when learned counsel for the petitioner posed a question - Do you agree that all documents at Ext.Z/7 (Part-A Register), Ext.Z/8 (Part-B Register) and Ext.Z/9 (Part-C Register) are documents pertaining to you Election Expenditures of 17th Lok Sabha Election 2019 of 2-Outer Manipur (ST) parliamentary Constituency, the first respondent answered "Yes". Thus, from the details of election expenditure of the first respondent referred to above, it is clear that beyond the permitted limit, the first respondent incurred election expenses.
108. The Expenditure Observer is not properly discharged his duties does not mean that the illegality committed by the first respondent can be allowed to be sustained. As rightly argued by learned counsel for the petitioner, the petitioner is well within his rights to challenge the said illegality by way Election Petition and not approaching the Election Commission under Section 10 of the RP Act does not disentitle him to seek the remedy as available before this Court, Election Petition No. 1 of 2019 P a g e | 117 especially when there is a gross illegality having been committed by the first respondent.
109. The argument of the learned senior counsel for the first respondent that most of the electors are living at remote area where no facility of Bank at most of the area of 2-Outer Parliamentary Election, 2019 and that the first respondent could not transact all his election expenditures through the Bank and that such irregularity cannot affect the election of the first respondent cannot be countenanced.
110. It is well settled principle that an illegality if committed cannot be allowed to be continued, especially when the same is brought to the knowledge of the Court.
111. In order to ascertain whether a corrupt practice has been committed or not, it is important that the scheme of the RP Act is to be read in consonance with each other provisions and not in parts or, in exclusion of one from the other, or in isolation.
112. Section 100 of the RP Act, lays down various grounds under which an election can be declared as null and void, one of them is "corrupt practice". Corrupt practice is Election Petition No. 1 of 2019 P a g e | 118 defined under Section 123 of the RP Act, which includes, bribery, undue influence, appear or to promote feeling of enmity, in the name of symbol, religion or caste, publishing false facts, hiring or procuring of vehicles, or free conveyance of any elector, incurring or authorizing of expenditure in contravention of Section 77, obtaining or procuring any assistance from authority or officer and booth capturing.
113. At this juncture, it is to be mentioned that it is bounden duty of a candidate to disclose the full particulars of the donors as per the mandatory instruction of the Election Commission of India and the first respondent cannot accept any donation in cash exceeding Rs.10,000/- without knowing the full particulars of the donors. There is also no provision or instruction of the Election Commission of India to collect money through donation box. As such, acceptance of cash exceeding Rs.10,000/- by the first respondent from the donors is against the mandatory instruction and is also illegal which amounts to corrupt practice and it also transpires the corrupt practice committed by the first respondent, in view of the discussions held supra.
Election Petition No. 1 of 2019 P a g e | 119
114. It is reiterated that Section 77 of the RP Act mandates maintaining and filing of separate and correct account of election expenses as per the prescribed format and also that the expenditure for the election should not exceed the prescribed limit. Further, if the returned candidate do not maintain or file election expenses as mandated under Section 77(1), (2) and (3) of the RP Act, then, it would mean that there is a non-compliance as laid down under Section 100(1)(d)(iv) of the RP Act and for that reason, the election of the returned candidate can be declared as null and void.
115. It is apposite to mention that the grounds under which an election could be declared void by the High Court are provided under Section 100 of the RP Act.
"Clauses (a), (b), (c) and (d) of Sub-section (1) of Section 100 specify the grounds under which the election of the returned candidate can be declared void.
Section 100(2) clarified the conditions in which the election of the returned candidate may not be declared void. The present case does not fall under this category.
Clause (a) of Section 100(1) provides the situation where a returned candidate was not qualified on the date of his election or was Election Petition No. 1 of 2019 P a g e | 120 disqualified to be chosen to fill the seat under the Constitution or this Act. It is not the case of the election petitioner that the respondent was not qualified or was disqualified, to be chosen to fill the seat under the Constitution or this Act. Hence, clause (a) of Section 100(1) is not attracted in the present case.
Clause (b) of Section 100(1) provides that an election can be declared void if the Court finds that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent.
Clause (c) of Section 100(1) provides for declaring the election void if any nomination is improperly rejected. Since in the present case there is no such case of improper rejection of any nomination, this ground is also not applicable.
116. The next ground for declaring the election to be void as provided under clause (d) of Section 100(1) of the Act is if the High Court is of opinion that the result of the election, in so far as it concerns a returned candidate, has been materially affected -
"(i) by the improper acceptance of any nomination, or Election Petition No. 1 of 2019 P a g e | 121
(ii) by any corrupt practice committed in the interests of the returned candidate or by an agent other than his election agent, or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the election of the returned candidate shall be declared void."
117. It is the case of the petitioner that the nomination paper of the first respondent has been improperly accepted, which was otherwise liable to be rejected, as the first respondent has failed to disclose vital information. According to the learned counsel for the petitioner, furnishing of incorrect statement in the affidavit in Form 26 filed along with the nomination paper in terms of the provisions under Sections 33 and 33-A of the RP Act read with Article 173 of the Constitution of India deserves to be rejected under Section 36(2) of the RP Act. From the oral and documentary evidence produced by both sides, it is clear that the Returning Officer improperly accepted the nomination paper of the first respondent. It is the duty of the Returning Officer to check whether the information required is Election Petition No. 1 of 2019 P a g e | 122 fully furnished at the time of filing of affidavit with the nomination paper since such information is very vital for giving effect to the right to know of the citizens. The candidate must take the maximum effort to explicitly remark as "Nil" or "Not Applicable"
or "Not known" in the columns and not to leave the particulars blank.
118. It is also clear that the affidavit which was said to be accepted by the Returning Officer has not been uploaded in the official website of the Election Commission of India as mandated under law. The ultimate purpose of filing of affidavit along with the nomination paper is to effectuate the fundamental right of the citizens under Article 19(1)(a) of the Constitution of India. Additionally, the non-dissemination of the affidavit in Form 26 dated 25.3.2019 through the website materially affected the election of the first respondent.
119. As discussed above, the first respondent has violated the instructions/notification/guidelines of the Election Commission of India and the mandatory provisions of the RP Act in committing illegality in the election expenditures and also exceeded the maximum limit for expenditures as prescribed. The aforesaid would also amount to corrupt practice as defined Election Petition No. 1 of 2019 P a g e | 123 under the RP Act. Though the first respondent contended that he has not concealed any material information in his affidavit, as discussed above, nothing has been produced to establish the same. Further, the documents produced and are referred by the first respondent do not substantiate his case. On the other hand, the failure of the first respondent in disclosing the name of his spouse and his dependents, non-agricultural land and details of his spouse etc. in the affidavit in Form 26 of the first respondent dated 21.03.2019 would constitute a corrupt practice falling under undue influence as defined under Section 123(2) of the RP Act.
120. It is reiterated that whether the nomination paper is to be accepted or rejected at the time of scrutiny is purely within the domain of the Returning Officer and the Returning Officer has to decide within the confines of Section 36 of the RP Act and relevant laws holding the field. When defect or mistake is found to be of substantial character, then the Returning Officer is under legal obligation to reject the nomination and not otherwise. The petitioner contends that it is a defect of substantial character. On the contrary, the first respondent contends that there is no defect in his nomination, which was negatived by this Court in the discussions held supra. Election Petition No. 1 of 2019 P a g e | 124
121. By placing reliance upon the decision of the Hon'ble Supreme Court in the case of Magraj Patodia v. R.K.Birla, (1970) 2 CC 888, the learned senior counsel for the first respondent submitted that the alleged corrupt practice stated by the petitioner is to be proved beyond reasonable doubt and preponderance of probabilities is not sufficient.
122. In Magraj Patodia (supra), the Hon'ble Supreme Court held as under:
"29. It is true that many times corrupt practices at election may not be able to be established by direct evidence and the commission of those corrupt practices may have to be inferred from the proved facts and circumstances but the circumstances proved must reasonably establish that the alleged corrupt practice was committed by the returned candidate or his election agent. As mentioned earlier preponderance of probabilities is not sufficient."
123. In Virender Nath Gautam (supra), the Hon'ble Supreme Court held thus:
"35. All "material facts" must be pleaded by the party in support of the case set up by him. Since the object and purpose is to enable the Election Petition No. 1 of 2019 P a g e | 125 opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a arty would be leading at the time of trial."
124. The initial burden to prove the allegations made in the Election Petition although was upon the petitioner, but for proving the facts which were within the special knowledge of the first respondent, the burden was upon him in terms of Section 106 of the Evidence Act. It is also settled that when both parties have adduced evidence, the question of onus of proof becomes academic. Furthermore, an admission on the part of a party to the list shall be binding on him and in any event a presumption must be made that the same is taken to be established. The Exts.Z/4, to Z/9, which are admittedly filed by the first respondent before the Returning Officer and are admitted by him proves the allegation of the petitioner against the first respondent.
125. Time and again the Hon'ble Supreme Court held that the success of a winning candidate at a election should not be lightly interfered with. This is all the more so when the Election Petition No. 1 of 2019 P a g e | 126 election of a successful candidate is sought to be set aside for no fault of his, but of someone else. That is why, the scheme of Section 100 of the RP Act, especially clause (d) of sub-section (1) thereof clearly prescribes that in spite of the availability of grounds contemplated by sub-clauses (i) to (iv) of clause (d), the election of a returned candidate shall not be voided unless and until it is proved that the result of the election insofar as it concerns a returned candidate was materially affected.
126. In order to get an election declared as void under the said provision, the petitioner must aware that on account of non-compliance with the provisions of the Constitution or of RP Act or of any rules or orders made under the Act, the result of the election, insofar as it concerned the returned candidate, was materially affected. As per the principle enunciated supra, in the instant case, in view of the foregoing discussions, the petitioner has established that the result of the election, insofar as it concerned the returned candidate, namely the first respondent, was materially affected in order to set aside the same. As stated supra, if the petitioner establishes failure on the part of the first respondent to furnish the vital information as contemplated under Section 33A of the RP Act, the question whether the result of the returned candidate was materially affected or not is Election Petition No. 1 of 2019 P a g e | 127 not a relevant factor to set aside the election of the first respondent. Hence, the submission made by the learned counsel for the first respondent has no legs to stand.
127. The sanctity of the electoral process imperatively commands that each candidate owes and is under an obligation that a fair election is held. Undue influence should not be employed to enervate and shatter free exercise of choice and selection. No candidate is entitled to destroy the sacredness of election by indulging in undue influence. The basic concept of "undue influence" relating to an election is voluntary interference or attempt to interfere with the free exercise of electoral right. The voluntary act also encompasses attempts to interfere with the free exercise of the electoral right.
128. At the cost of repetition, the right of the voters to know of the relevant particulars of the candidates is very important, as ultimately it is the voters who decide the fate of the candidates who will periodically exercise the political power. A citizen of this country has a fundamental right to receive information regarding the assets and liabilities of a candidate of the Parliament or the Lok Sabha or the Legislative Assemblies so as to make his choice effective and meaningful. Election Petition No. 1 of 2019 P a g e | 128
129. In the instant case, admittedly, the Returning Officer was in possession of two different nomination papers and affidavit in Form 26, thereby giving an advantage to the Returning Officer to compare the same to ascertain the truthfulness of the information having been provided in both the Forms and upon finding that the later Form 26 has been improved upon and even the details of the jewelleries of the first respondent and his spouse has been mentioned in Form 26 dated 25.3.2019, the Returning Officer ought to have rejected the nomination paper, as there was an intentional omission not typographical error on the part of the first respondent in filing Form 26 dated 21.3.2019 which was the only Form put up for public view and uploaded on the website and not Form 26 dated 25.03.2019. In the preceding paragraph, this Court held that the non-dissemination of the affidavit in Form 26 dated 25.3.2019 through the website materially affected the election of the first respondent.
130. It can be understood that at the time of scrutiny, the Returning Officer may not be in a position to ascertain the truthfulness of the information provided, but he cannot ignore the blanks which are visible from the naked eyes and upon finding that information of substantial character, like name of the Election Petition No. 1 of 2019 P a g e | 129 spouse, name of the dependents, details of returns of the candidate, spouse and dependents, income of the spouse, who is a Government servant, movable and immovable property and the details of non-agricultural has either been left blank or are not filled, the Returning Officer should have rejected the said nomination paper forthwith.
131. One may look this aspect from another perspective. If the very basis of the election of the returned candidate, i.e., the nomination of the candidate which is stated to be valid, is later on found to be not valid, as in the present case, the very basis and foundation for sustaining the election of the returned candidate goes. In other words, once the foundation is taken away, the election will have no basis to stand and thus will be rendered otiose. He cannot be treated to have been elected at all. Hence, the moment there is a finding that the nomination of the returned candidate has been improperly accepted, it immediately materially affects the result of the returned candidate. Accordingly, if there be any burden on the petitioner to prove that the result of the election of the returned candidate has been materially affected by improper acceptance of the nomination of the returned candidate, such a burden also gets discharged immediately. Thus, there will not Election Petition No. 1 of 2019 P a g e | 130 be any need to prove further on the part of the petitioner that the improper acceptance of the nomination of the returned candidate has materially affected the result of the election of the returned candidate.
132. This Court is of the view that the affidavit in Form 26 filed by the first respondent suffers from the defects of substantial character. The petitioner also established that the first respondent filed affidavit in Form 26 dated 21.3.2019 along with the nomination paper submitted by him. The only uploaded affidavit in Form 26 of the first respondent is dated 21.3.2019 and while filing nomination along with the affidavit in Form 26, the first respondent has failed to follow the instructions of the Election Commission of India in relation to separate bank election expenditure. The act of the first respondent would amounts to corrupt practice and therefore, it materially affected the result of the election of 2-Outer Manipur (ST) Parliamentary Constituency to the 17th Lok Sabha, 2019.
133. For all the reasons stated above, the election of the first respondent is declared void under Section 100 (1) (d)
(i) (iv) read with Section 100 (1)(b) of the RP Act. Accordingly, Election Petition No. 1 of 2019 P a g e | 131 Issue Nos.1 to 6 are answered in favour of the petitioner and against the first respondent.
Issue No.7:
134. The learned counsel for the petitioner submitted that consequent upon the declaration of the election of the first respondent is void and the votes numbering 363527 received by the first respondent will become invalid votes and since the petitioner received majority of valid votes numbering 289745, this Court could declare the petitioner as elected. He submits that the votes secured by the first respondent whose nomination has been improperly accepted and whose election liable to be set aside, stands waster and the petitioner is liable to be declared elected under Section 101 of the RP Act. In support, the learned counsel has referred to Sections 84, 98 and 101 of the RP Act.
135. The learned counsel for the petitioner submitted that having declared the election of the first respondent as void, the natural consequence in the present case would have been to declare the petitioner who is the only other remaining candidate secured highest votes next to the first respondent with valid nomination in the election for the 2-Outer Manipur Election Petition No. 1 of 2019 P a g e | 132 (ST) Parliamentary Constituency to be elected, by default in terms of the relevant provisions of the RP Act. In support, the learned counsel placed reliance upon the following decisions:
(i) Konapppa Rudrappa Nagouda v. Vishwanath Reddy and another, AIR 1969 SC 447. (ii) Chandeshwar Saw v. Brij Bhushan Prasad and others, 2020 SCC OnLine SC 89. (iii) Mopuragundu Thpppeswamy v. K.Eranna Ananthapur, 2018 SCC OnLine Hyd 413.
(iv) Mayanglambam Rameshwar Singh v.
Yengkhom Surchandra Singh and others, 2020 SCC OnLine Mani 312.
136. The learned senior counsel for the first respondent argued that the petitioner is not entitled to be declared as elected as returned candidate in any circumstances. Further, assuming but not admitting that the Election Petition of the petitioner succeeds, the petitioner cannot be declared as election in the place of the first respondent, as there are eight candidate contesting in the 17th Lok Sabha Election, 2019, it would be impossible to predict or guess in whose favour the voters would have voted if they were aware that elected Election Petition No. 1 of 2019 P a g e | 133 candidate was disqualified to contest election or if he was not permitted to contest the election by rejecting his nomination paper to contest the election and what would have been voting pattern. The learned senior counsel urged that in the instant case it will be more difficult because the margin runs in more than 73,782 votes.
137. In order to appreciate the contention of the petitioner, it is necessary to quote Sections 84, 98 and 101 of the RP Act:
"84. Relief that may be claimed by the petitioner - A petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected."
98. Decision of the High Court.-- At the conclusion of the trial of an election petition 2 the High Court shall make an order--
(a) dismissing the election petition; or
(b) declaring the election of all or any of the returned candidates to be void; or
(c) declaring the election, of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected Election Petition No. 1 of 2019 P a g e | 134
101. Grounds for which a candidate other than the returned candidate may be declared to have been elected.-- If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the High Court is of opinion--
(a) that in fact the petitioner or such other candidate received a majority of the valid votes; or
(b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes, the High Court shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected."
138. Section 84 of the RP Act enables the petitioner to seek a declaration to declare him as elected candidate in case the election of the returning candidate was declared as void. Section 101 of the RP Act speaks of the ample power to declare the petitioner as duly elected candidate, as the petitioner Election Petition No. 1 of 2019 P a g e | 135 received majority of valid votes. Thus, the relief sought by the petitioner falls within the ambit of Sections 84 and 101 of the RP Act.
139. In Konappa Rudrappa Nagouda (supra), the Hon'ble Supreme Court held:
"14. We are satisfied that this appeal must succeed and the appeal is therefore allowed, the election of the first respondent is declared void. In this view of the matter, the votes cast in favour of the first respondent must be treated as thrown away. As there was no other contesting candidate we declare the appellant (election petitioner) elected to the seat from the Yadagiri constituency. The first respondent shall bear the costs of the appellant throughout."
140. In Chandeshwar Saw (supra), the Hon'ble Supreme Court held as under:
"20. Accordingly, this appeal succeeds. The impugned judgment [Brij Bhushan Prasad v. State Election Commission, 2019 SCC OnLine Pat 2391] and order is set aside. Instead, the election case being EC No. 8 of 2016 filed by the appellant before the Election Tribunal is allowed. A declaration is issued under Section 140 of the Act that the election Election Petition No. 1 of 2019 P a g e | 136 of Respondent 1 as returned candidate is set aside being invalid, and instead we declare the appellant-election petitioner as having been duly elected having secured highest votes amongst the contesting candidates and 95 more valid votes than that of Respondent 1 in the subject election."
141. In Mayanglambam Rameshwar Singh (supra), this Court held thus:
"120. In the instant case, trial commenced on 12.6.2017 and the Election Recrimination Petition was filed on 7.8.2017, however, the same was closed as not pressed on 12.9.2017 and the order dated 12.9.2017 reads thus:
"Heard Mr. Th. Modhu, learned counsel for the applicant/successful candidate who submits that he is not pressing the application.
In view of the above submission made by the learned counsel for the applicant, the present application stands closed as not pressed. Heard also Mr. N Zequeson, learned counsel for the election petitioner."
121. Since the order dated 12.9.2017 in Election Recrimination Petition No. 2 of 2017 attained finality, the first respondent cannot Election Petition No. 1 of 2019 P a g e | 137 claim any right against the petitioner. In other words, without having any prayer claimed against the petitioner, it will be erroneous for this Court to pass any order in regard to Issue No. 7.
122. It is settled law that if the returned candidate does not recriminate as required by Section 97, then he cannot make any attack against the alternative claim made by the petition. In such a case, an enquiry would be held under Section 100 of the RP Act so far as the validity of the returned candidate's election is concerned, and if as a result of the said enquiry declaration is made that the election of the returned candidate is void, then the Court will proceed to deal with the alternative claim, but in doing so, the returned candidate will not be allowed to lead any evidence because he is precluded from raising any pleas against the validity of the claim of the alternative candidate.
123. In the present case, in view of the Election Recrimination petition No. 2 of 2017 being admittedly time barred in terms of the provisions of Section 97 of the RP Act and the same having been dismissed as not pressed, no evidence against the petitioner can be introduced or raised by the first respondent Election Petition No. 1 of 2019 P a g e | 138 qua non-disclosure of information. Thus, it can safely be concluded that the alleged materials produced by the first respondent against the petitioner in. regard to Issue Ne.7 is inadmissible and at the same time, the defence set forth in the written statement of the first respondent are not to be taken into account and are not helpful to the first respondent. Issue No. 7 is answered accordingly.
124. Issue No. 8:
125. Having declared the election of the First respondent as void, the natural consequence in the present case would have been to declare the only other remaining candidate With valid nomination in the election for the 37-Kakching Assembly Constituency to be elected, by default in terms of the relevant provisions of the RP Act.
126. The petitioner clearly pleaded in his petition to declare the election of the first respondent as null and void and declare him as elected candidate.
127. By placing reliance upon the following decisions, the learned counsel for the first respondent submitted that the petitioner Election Petition No. 1 of 2019 P a g e | 139 cannot be declared as elected when there are several candidates in the election in question:
(1) Konappa Rudrappa Nadgouda v. Vishwanath Reddy, (1969) 2 SCR 90 (2) Thiru John v. Returning Officer, (1977) 3 SCC 540. (3) Prakash Khadri v. Dr. Vijaya Umar Khandra, (2002) 5 SCC 568. 128. In Konappa Rudrappa Nadgouda
(supra) the Hon'ble Supreme Court held:
"12....... When there are only two contesting candidates, and one of them is under a statutory disqualification, votes cast in favour of the disqualified candidate may be regarded as thrown away, irrespective of whether the voters who voted for him were aware of the disqualification. This is not to say that where there are more than two candidates in the field for a single seat, and one alone is disqualified, on proof of the disqualification all the votes cast in favour his will be discarded and the candidate securing the next highest number of votes will be declared elected. In such a case, question of notice to the voters may assume significance, for the voters may not, if aware of the Election Petition No. 1 of 2019 P a g e | 140 disqualification have voted for the disqualified candidate."
129. In Thiru John (supra), the Hon'ble Supreme Court held:
"54. This takes us to the next question. Should all the votes that had been polled in favour of the candidate (Shri John) who has been found by the Court to be statutorily disqualify for election, be regarded as thrown away and in consequence, the appellant Shri Subrahmanyam who secure 300 votes as against non obtained by Shri Mohana Rangam be declared elected?
55. Again the answer to this question in our opinion must be in the negative. It is nobody's case that electors who voted for Shri John had at the time of election, knowledge or notice of the statutory disqualification of this candidate. On the contrary they must have been under the impression that Shri John was candidate whose nomination has been validly accepted by the Returning Officer. Had the electors noticed of Shri John's disqualification, how many of them would have voted for him and how many for the other continuing candidates, including Sarvashri Subrahmanyam and Mohana Election Petition No. 1 of 2019 P a g e | 141 Rangam and in that preferential order, remains a question in the realm of speculation and unpredictability."
130. In Prakash Khandre (supra), the Hon'ble Supreme Court held:
"24...... As held by the Constitution Bench in Konappa case that some general rule of election law prevailing in the United Kingdom that the votes cast in favour of a person who is found disqualified for election may be regarded as "thrown away" only if the voters had noticed before the poll the disqualification of the candidate, has no application in our country and has only merit of antiquity. We would observe that the question of sending such notice to all voters appears to us alien to the Act and the Rules. But that question is not required to be dealt with in this matter. As stated earlier, in the present case, for one seat, there were five candidates and it would be impossible to predict or guess in whose favour the voters would have voted if they were aware that the elected candidate was disqualified to contest election or if he was not permitted to contest the election by rejecting his nomination paper on the ground of Election Petition No. 1 of 2019 P a g e | 142 disqualified to contest the election and what would have been the voting pattern. Therefore, order passed by the High Court declaring the election petitioner Dr. Vijay Kumar Khandre as elected required to be set aside."
131. In order to appreciate the contention of the petitioner, it is not out of place to extract hereunder Section 84 of the RP Act.
"84. Relief that may be claimed by the petitioner-A petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected."
132. Section 84 of the RP Act enables the petitioner to seek a declaration to declare him as elected candidate in case the election of the returning candidate was declared as void. Thus, the relief sought by the petitioner falls within the ambit of Section 84 of the RP Act. The decisions relied on by the learned counsel for the first respondent is distinguishable from the facts of the instant case and therefore, the aforesaid decisions would have no help to the case of the first respondent. In the instant case, it is also admitted by the first respondent that the petitioner is the next highest candidate Election Petition No. 1 of 2019 P a g e | 143 who secured 10503 votes. The next highest vote is 2215 got by the Communist party. Since the difference between the first respondent and the petitioner is 630 votes, the question of notice to the voters may not arise in the given circumstances of the present case.
133. In Konappa Rudrappa Ngouda (supra), the Hon'ble Supreme Court held :
"We are satisfied that this appeal must succeed and the appeal is therefore allowed, the election of the first respondent is declared void. In this view of the matter, the votes cast in favour of the first respondent must be treated as thrown away. As there was no other contesting candidate we declare the appellant (election petitioner) elected to the seat from the Yadagiri constituency. The first respondent shall bear the costs of the appellant throughout."
134. In Chandeshwar Saw v. Brij Bhushan Prasad, 2020 SCC OnLine SC 89, the Hon'ble Supreme Court observed as under:
"20. Accordingly, this appeal succeeds. The impugned judgment and order is set aside. Instead, the election case being E.C. No. 08/2016 filed by the Election Petition No. 1 of 2019 P a g e | 144 appellant before the Election Tribunal is allowed. A declaration is issued under Section 140 of the Act that the election of respondent No. 1 as returned candidate is set aside being invalid, and instead we declare the appellant/election petitioner as having been duly elected having secured highest votes amongst the contesting candidates and 95 more valid votes than that of respondent No. 1 in the subject election."
135. In Mopuragundu Thippeswamy v. K. Eranna, 2018 SCC OnLine Hyd 413, the High Court of Andhra Pradesh held as under:
"102. The petitioner clearly pleaded in the Election Petition to declare the election of the first respondent as null and void, and declare him as elected candidate. In order to appreciate the contention of the petitioner, it is not out of place to extract hereunder Section 84 of the R.P. Act.
84. Relief that may be claimed by the petitioner-A petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected.
Election Petition No. 1 of 2019 P a g e | 145
103. Section 84 of the RP Act enables the petitioner to seek a declaration to declare him as elected candidate in case the election of the returning candidate was declared as void. The relief sought by the petitioner falls within the ambit of Section 84 of the R.P. Act.
104. As observed earlier, the first respondent got 76,601 votes and the petitioner got 61,905 votes. The first respondent was declared as elected Member of 275-Madakasira Legislative Assembly Constituency with a majority of 14,636 votes. Among all the candidates contested, the petitioner secured highest votes after the first respondent.
Consequent upon the findings on Additional Issue, the petitioner is entitled to be declared as elected Member of 275-Madakasira Legislative Assembly Constituency. Accordingly, Issue No. 4 is answered in favour of the petitioner and against the first respondent."
136. It has been pointed out by the learned counsel for the petitioner that as against the judgment of the Andhra Pradesh High Court in 2018 SCC OnLine Hyd 413, the respondent K. Eranna, preferred Civil Appeal No. 11908 of 2018 before the Hon'ble Supreme Court and Election Petition No. 1 of 2019 P a g e | 146 by the order dated 12.12.2018, the Civil Appeal No. 11908 of 2018 stands dismissed and he has also produced the judgment of the Hon'ble Supreme Court. Thus, judgment of the Andhra Pradesh in K. Erranna (supra) is squarely applies to the case on hand.
137. As stated supra, the first respondent got 11133 votes and the petitioner got 10503 votes. The First respondent was declared as elected member of 37-Kakching Assembly Constituency. Among all the candidates contested the petitioner secured 10503 votes after the first respondent. Consequent upon the findings that the election of the first respondent is declared as null and void, the petitioner is entitled to be declared as elected member of 37-Kakching Assembly Constituency. Issue No. 8 is answered in favour of the petitioner."
142. In Mopuragundu Thippeswamy (supra), the Telangana High Court held as under:
"102. The petitioner clearly pleaded in the Election Petition to declare the election of the first respondent as null and void, and declare him as elected candidate. In order to appreciate the contention of the petitioner, it is not out of place to extract hereunder Section 84 of the R.P. Act.
Election Petition No. 1 of 2019 P a g e | 147
84. Relief that may be claimed by the petitioner - A petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected.
103. Section 84 of the RP Act enables the petitioner to seek a declaration to declare him as elected candidate in case the election of the returning candidate was declared as void. The relief sought by the petitioner falls within the ambit of Section 84 of the R.P. Act.
104. As observed earlier, the first respondent got 76,601 votes and the petitioner got 61,905 votes. The first respondent was declared as elected Member of 275-Madakasira Legislative Assembly Constituency with a majority of 14,636 votes. Among all the candidates contested, the petitioner secured highest votes after the first respondent. Consequent upon the findings on Additional Issue, the petitioner is entitled to be declared as elected Member of 275-Madakasira Legislative Assembly Constituency. Accordingly, Issue No.4 is answered in favour of the petitioner and against the first respondent.
Election Petition No. 1 of 2019 P a g e | 148
105. In the result, the Election Petition is allowed, setting aside the election of the first respondent as Member of 275-Madakasira Legislative Assembly Constituency in the General Elections held in the month of May, 2014 and declaring the petitioner as duly elected Member of 275-Madakasira Legislative Assembly Constituency. Both the parties are directed to bear their own costs. Miscellaneous petitions, if any pending in the Election Petition, shall stand closed."
143. It has been pointed out by the learned counsel for the petitioner that as against the judgment of the Telangana High Court in 2018 SCC OnLineHyd 413, the respondent K.Eranna, preferred Civil Appeal No.11908 of 2018 before the Hon'ble Supreme Court and by the order dated 12.12.2018, the Civil Appeal No.11908 of 2018 stands dismissed. Thus, judgment of the Andhra Pradesh in K.Erranna (supra) is squarely applies to the case on hand.
144. As stated supra, the first respondent got 363527 votes and the petitioner got 289745 votes. The next highest person secured votes is the seventh respondent i.e. 152510 votes. The first respondent was declared as elected member Election Petition No. 1 of 2019 P a g e | 149 of 2-Outer Manipur (ST) Parliamentary Constituency in the General Election to 17th Lok Sabha, 2019. Among all the candidates contested, the petitioner secured 289745 votes after the first respondent. The difference between the petitioner and the seventh respondent is 137235 votes.
145. Though the Hon'ble Supreme Court held that where there are more than two candidates in the field, it is not possible to apply the same ratio as could be applied when there are only two candidates, in the facts and circumstances of the case and number of votes secured by the petitioner, it would be appropriate to consider that the petitioner is duly elected as member. Further, the pleadings of material facts produced by the petitioner co-relatable to the ingredients of clause (a) or (b) of Section 101 of the RP Act to sustain the prayer (c) made in the Election Petition. In view of the fact that there were eight candidates in the fray, the claim of the petitioner to declare him as elected member cannot be denied for the reason that among all the candidates contested, the petitioner secured highest votes after the first respondent. Consequent upon the findings that the election of the first respondent is declared as null and void, the petitioner is entitled to be declared as elected member of 2-Outer Manipur (ST) Parliamentary Constituency in the Election Petition No. 1 of 2019 P a g e | 150 General Election to 17th Lok Sabha, 2019. Accordingly, Issue No.7 is answered in favour of the petitioner.
146. In the result,
a) the Election Petition is allowed by declaring the election of the Respondent No. 1 as Member of 2-Outer Manipur (ST) Parliamentary Constituency to the 17th Lok Sabha, 2019 as null and void;
b) this Court declared that the Petitioner is duly elected as a member of 2-Outer Manipur (ST) Parliamentary Constituency;
c) both the parties are directed to bear their own cost.
JUDGE FR/NFR Sushil Election Petition No. 1 of 2019