Kerala High Court
Syriac Thomas vs Vazhoor Soman on 31 May, 2024
Author: Mary Joseph
Bench: Mary Joseph
Election Petition No. 10 of 2021
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
FRIDAY, THE 31ST DAY OF MAY 2024 / 10TH JYAISHTA, 1946
EL.PET. NO. 10 OF 2021
ELECTION PETITIONER:
SYRIAC THOMAS,AGED 56 YEARS,
S/O. LATE THOMAS RESIDING AT DOOR NO. EP 9/917, KALARICKAL HOUSE, ELAPPARA
PANCHAYATH, ELAPPARA P.O., ELAPPARA VILLAGE, PEERMADE TALUK, IDUKKI
DISTRICT, KERALA, PIN-685501.
BY ADVS.SRI.C.S.MANU
SRI.C.A.ANUPAMAN
SRI.C.Y.VIJAY KUMAR
SMTI.MANJU E.R.
SRI.ANANDHU SATHEESH
SRI.ALINT JOSEPH
SRI.PAUL JOSE
RESPONDENTS:
1 VAZHOOR SOMAN,AGED 68 YEARS, S/O. KUNJU PAPPAN, RESIDING AT KUTTOOS NIVAS,
PALLIPPADIBHAGAM, VANDIPERIYAR P.O., PIN-685533, PERIYAR VILLAGE,
PEERMADE TALUK, IDUKKI DISTRICT, KERALA.
2 SRINAGARI RAJAN,AGED 62 YEARS, S/O. VASU, RESIDING AT SRINAGARI HOUSE,
KATTAPPANA KARA, KATTAPPANA P.O., KATTAPPANA VILLAGE, IDUKKI TALUK, IDUKKI
DISTRICT, KERALA-685508.
3 BIJU MATTAPPALY @ BIJU THOMAS,AGED 43 YEARS, S/O. THOMAS, RESIDING AT
MATTAPPALLIL HOUSE, ATTAPPALLAM KARA, ATTAPPALLAM P.O., KUMILY VILLAGE,
PEERMADE TALUK, IDUKKI DISTRICT, KERALA-685509.
4 GOPALAKRISHNAN,AGED 54 YEARS, S/O. KUMARAVELU, RESIDING AT PUTHENPURACKAL
HOUSE, ALADY K CHAPPATH P.O., AYYAPPANKOVIL VILLAGE, UDUMBANCHOLA TALUK,
IDUKKI DISTRICT, KERALA-685505.
5 SOMAN KUNJUKUNJU,AGED 53 YEARS, S/O. KUNJUKUNJU, RESIDING AT MATTATHIL
HOUSE, PULLIKKANAM P.O., VAGAMON, VENGAMON VILLAGE, PEERMADE TALUK, IDUKKI
DISTRICT, KERALA-685509.
BY ADVS.SRI.T.KRISHNANUNNI (SR.)
SRI. DEEPU LAL MOHAN
SRI. VINOD RAVINDRANATH
SRI. MEENA.A.
SRI. K.C.KIRAN
SRI. M.R.MINI
SRI. RAVI KRISHNAN
SRI M.DEVESH
SRI ASHWIN SATHYANATH
SRI ANISH ANTONY ANATHAZHATH
SRI. THAREEQ ANVER K.
THIS ELECTION PETITION HAVING BEEN FINALLY HEARD ON 22.05.2024 THE COURT ON
31.05.2024, DELIVERED THE FOLLOWING:
Election Petition No. 10 of 2021
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MARY JOSEPH, J.
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Election Petition No. 10 of 2021
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Dated this the 31st day of May, 2024
JUDGMENT
This is a petition filed under Sections 80, 80A and 81, 82, 83, 84 read with Sections 100(1)(a), (d) and 101 of the Representation of the People Act, 1951 (for short, 'the R.P Act').
2. Petitioner contested the general election to the Kerala Legislative Assembly held on 06.04.2021 as a candidate of Indian National Congress(I) with 'hand' as symbol from 092 Peermade Assembly Constituency. The first respondent contested the election from 092 Peermade Assembly Constituency as a candidate of Communist Party of India with 'Ears of Corn and Sickle" as symbol. Second Respondent contested the election as a candidate of Bharatiya Janatha Party with "Lotus" as symbol. Third respondent contested the election as a candidate of Bahujan Samajwadi Party with "Elephant" as symbol. Respondents 4 and 5 were independent candidates who contested the election with symbol respectively as "Battery Torch" and "Candles".
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3. Respondent No.1 got 1835 votes over and above the Election Petitioner and therefore on 02.05.2021, the returning officer declared respondent No.1 as won the election. Respondents 2 to 5 were the other candidates contested the election from 092 Peermade Assembly Constituency with symbol "Battery Torch" and "Candles" respectively.
4. Votes were counted on 02.05.2021 and respondent No.1 secured 60141 votes, petitioner, 58306 votes, the 2 nd respondent, 7126 votes, the 3rd respondent, 818 votes, the 4th respondent, 251 votes and the 5 th respondent, 248 votes. Thus the returning officer declared respondent No.1 as elected by 1835 votes.
5. It was contended that the 1st respondent was holding an office of profit under the State Government as Chairman of Kerala State Warehousing Corporation (for short ' Corporation') at the time of his nomination and he was using a vehicle as well as accommodation provided by the Government, but those factums were suppressed by him in the nomination. He failed to produce the no dues certificate alongwith the nomination. According to him, every person contesting an election as a candidate shall furnish full and complete information in an Election Petition No. 10 of 2021 -:4:- affidavit sworn to before a Magistrate of First Class or a Notary Public or a Commissioner of Oaths appointed by the High Court of State Concerned and non-furnishing of one such shall be considered as violation of the direction issued in that regard and the nomination filed shall be rejected by the returning officer at the time of its scrutiny itself. Penal consequences under the Indian Penal Code, 1860 would follow, for furnishing wrong information to a public servant or suppression of material facts from him.
6. Therefore, it was the duty of the returning officer to check whether all information required is fully furnished in the affidavit filed alongwith the nomination. According to him, the information called for is very vital as the people voting are entitled to be informed of those particulars while exercising their right to vote. The returning officer shall also remind the candidate to fill, spaces which are kept blank in the affidavit and if the candidate failed to do so, it is open to the returning officer to reject the nomination. According to him, there is a specific direction in the affidavit itself that no column shall be kept vacant.
Election Petition No. 10 of 2021 -:5:-
7. According to him, the affidavits submitted by respondent Nos.1 and 3 to 5 alongwith the nomination as envisaged under Section 33A of the R.P. Act and Rule 4(A) of the Conduct of Election Rules, 1961 are incomplete so far as paragraph No.4, Sl. Nos.2 to 6 of Column No.5 is concerned. The names of the dependants of respondent Nos.1 and 3 to 5 were not mentioned in Column No.2 of paragraph 4. In Column No.1 of the affidavit, paragraph 7A where the money in hand of respondents 2 and 4 is meant to be mentioned, columns were kept blank by the respondents. Moreover, the affidavits filed by respondents 2 and 4 was not verified and correctness certified by a Notary.
8. Respondent No.1 submitted an affidavit prepared in English on 18.03.2021. On reminding him about the defects in that by the returning officer, he filed a fresh affidavit in Malayalam on 19.03.2021, which also carried defects of substantial character.
9. Sl.No.1, Column No.5 of paragraph 4 of the affidavit in Malayalam, the gross income for one of the five financial years viz. 2015-2016 is called upon to furnish was kept blank. Respondent No.1 also omitted to mention in paragraph 4 the information, called for, in Column No.4 whether his dependents Election Petition No. 10 of 2021 -:6:- had filed returns of Income Tax for any of the preceding five financial years, "Not Applicable" was shown, against Sl.Nos.2, 4 and 5. Similarly, names of the dependents are not furnished against Sl.Nos.4 and 5 of column No.2 of paragraph No.4. The information called for regarding the financial year in which return of income tax has been lastly filed by the spouse and dependents are also shown 'as not applicable' as per Sl.Nos. 2, 4 and 5 of column No.4 of paragraph No.4. Against Sl.No.2 of column No.3 of the affidavit, where the information meant to be furnished regarding the PAN of Smt.Bindu Soman, the spouse of respondent No.1 was shown, "PAN not allotted". Smt. Bindu Soman was working as LIC Agent since ten years, the crucial date of filing of the affidavit and was having a PAN in her favour and income tax returns was also filed. Therefore, an incorrect information about the spouse was furnished in Sl.No.2 of paragraph 4 of the affidavit.
10. In Sl.No.(ii) of paragraph 7A of the affidavit, where the particulars of deposits in the bank accounts were called for, the number of the accounts maintained by respondent No.1 was not shown. Likewise the LIC policy number was also not furnished in Election Petition No. 10 of 2021 -:7:- the column against Sl.No.(iv) of paragraph 7A. The amount in deposits is shown but not the details of the deposits.
11. As per column No.(ii) respondent No.1 was also called upon to furnish the model of the vehicle. In Sl.No.(vi) of paragraph 7A of the affidavit, particulars, except the model of the vehicles possessed by respondent No.1 and his dependants were shown. Respondent No.1 has also omitted to mention the number of the Life Insurance Certificate possessed by him and the bonus accrued on it in Sl.Nos.(iv) and (viii) of column No.2 of paragraph 7A.
12. Respondent No.1 also suppressed the information about holding an office of profit under the Government and use of Government accommodation and vehicle, in paragraph 8 of the affidavit. He also failed to obtain certificate of no dues towards electricity charges, water charges, telephone charges and charges arising out of use of Government vehicle from the authority concerned where he was officiating. He also failed to state the address of his Government accommodation and dues towards the charges mentioned above under Sl.No.(ii) of paragraph 8 of the affidavit. Instead, Respondent No.1 had mentioned 'Not applicable' in column No.3. Though column No.3 Election Petition No. 10 of 2021 -:8:- specifically directs production of 'no dues certificate', respondent No.1 failed to do so. Though respondent No.1 was using the Government vehicle allotted to him, being Chairman of the Corporation, he had stated 'Not Applicable' in the column meant for mentioning the particulars. Thus, he has suppressed the information about the dues if any he had to the Government Department dealing with official conveyance. According to the learned counsel for the Election Petitioner, the defects to which attention was drawn by him were of substantial character.
13. Despite the information furnished by the returning officer through notice issued and granting of sufficient opportunity to supply the information omitted, respondent No.1 failed to do so and therefore the nomination paper ought to have been rejected by her. An affidavit was filed availing the opportunity, but for failure to furnish the details called for, respondent No.1 can only be taken to have availed the opportunity to rectify the errors. Therefore, there was every reason for the returning officer to reject the nomination paper filed by respondent No.1.
14. It was urged in the backdrop that a returning officer is supposed to discharge his duty as such with utmost fairness, Election Petition No. 10 of 2021 -:9:- impartiality and to treat all candidates equally. But the returning officer in the case on hand by accepting the nomination paper of respondent No.1 with all the defects pointed out as existing in it and the affidavit filed alongwith has acted arbitrarily without judicial detachment in a partisan manner.
15. On 20.03.2021, a statement of objection was filed by one Mr.Sabu Thomas before the returning officer, pointing out the defects in the affidavit in Malayalam as well as nomination paper submitted by respondent No.1 before it. The Election Petitioner also made oral objection through his advocate before the returning officer regarding the nomination filed by other respondents, pointing out that the affidavits filed by them are incomplete in particulars called for under item No.4, Sl.No.2 to 6 of Column No.5. Columns where, the details of the dependents of the other contesting candidates and the cash in their hand of respondents 2 and 4 have to be mentioned, are also kept blank. The affidavits of respondent Nos.2 and 4 were also alleged as not verified and correctness certified by the Notary Public. Accordingly, the Election Petitioner urged that the nomination paper and the affidavit were filed by respondents with defects and suppressing even informations of substantial nature. Election Petition No. 10 of 2021 -:10:- According to him, neither the objection raised by the Election Petitioner orally on his own nor in writing, through Adv.Sabu Thomas pointing out material defects were not considered by the returning officer. According to him, the returning officer has issued a reply to the Election Petitioner on 20.03.2021 stating that the defects pointed out in the objection are not of substantial character and thus the nomination paper was received. According to him, the returning officer ought not to have accepted the nomination papers of respondent No.1 and also other respondents.
16. According to the learned counsel, if the nomination papers of respondents 2 to 5 were rejected, the Election Petitioner alone would remain as candidate and therefore there was every chance for him to win the election and the returning officer ought to have been declared him as won the election. In the above context, the Election Petition was filed and the following reliefs are sought:
"i) Declare that the election of the 1 st respondent from No.92 Peermade legislative Assembly Constituency, declared on 2 nd May, 2021 is null, void and inoperative and therefore set it aside.
ii) Declare that the result of election in so far as it concerns the first respondent has been materially affected by improper acceptance of the nominations of himself and other respondents.
Election Petition No. 10 of 2021 -:11:-
iii) Declare that the petitioner being the next candidate having secured the highest number of votes and whose nomination alone ought to have been accepted is the duly elected candidate in the election held on 6 th April, 2021 from No.92 Peermade Legislative Assembly constituency.
iv) Allow cost of the petitioner to the petitioner.
v) Grant such other and further reliefs as this Hon'ble Court deems fit and proper in the circumstances of the case."
17. Alongwith the Election Petition, the relevant materials with reference to which the allegations were made are also produced. The learned counsel has also placed some rulings relied on by him to support his arguments.
18. Respondent No.1 filed written statement in the Election Petition raising contentions as follows:
The Election Petition is not properly verified in accordance with law. Annexures I and II have also not been verified properly. The source wherefrom those were received by the Election Petitioner was not stated and therefore, those are inadmissible in evidence.
19. Respondent No.1 was not holding an office of profit under the State Government at the relevant time of submission of nomination. He tendered resignation from the post of the Corporation on 16.03.2021, and following it's acceptance, a Election Petition No. 10 of 2021 -:12:- Government Order was issued on 17.03.2021. Therefore, he was not using accommodation or vehicle provided by the Government at that point of time. It was stated that no dues certificate was shown to the returning officer and copy of that was also produced alongwith the written statement. He has paid income tax only for 4 years preceding the submission of nomination and therefore that the column with reference to the financial year 2015-16 was kept blank. In fact during 2015-16, taxable income was not there for him and therefore tax was not paid. PAN of dependents are shown in Sl.Nos.4 and 5 of Column No.3, but their names were not mentioned and it was due to an inadvertent omission. Dependents were not income tax assessees during that period. His spouse was not an income tax assessee during that period as she then was only an LIC agent and has no taxable income. The contention that the spouse of respondent No.1 has PAN and income tax was paid by her, cannot be accepted for want of any materials to support. True that omissions were there in the affidavit filed alongwith the nomination, but, those are being in substantial in character, the returning officer is justified in accepting the same. Election Petition No. 10 of 2021 -:13:-
20. It was stated further that in Sl.No.(ii) of paragraph 7A necessary particulars are mentioned. In Sl. No.iv, vi and viii also details of investments are given. Respondent No.1 was not receiving any bonus from LIC policies. The defects pointed out with reference to Serial Number referred to are of in substantial character and cannot form basis for rejection of the nomination paper by the returning officer. Respondent No.1 was not holding an office of profit at the relevant time when he filed the nomination. It was contended that he was also not using any accommodation or vehicle provided by the Government then and he does not have any dues to be remitted or paid in connection with the office he was holding. Necessary particulars with reference to those being mentioned in paragraph 8, the defects alleged are not of substantial character.
21. The returning officer had never given notices pointing out errors in the affidavit to him. He did not submit any additional affidavit rectifying the defects pointed out. Two sets of nomination were submitted alongwith affidavit in English and Malayalam.
22. At the time of scrutiny, he submitted that the nomination accompanied by affidavit in Malayalam can be Election Petition No. 10 of 2021 -:14:- accepted by the returning officer and thus after necessary scrutiny, it was accepted. Had the returning officer issued notice, pointing out defects if any, he would have corrected those and re-submitted the nomination and the affidavit. Instead, he was not given any opportunity to correct errors if any, in the affidavit. Thus, he denied to have suppressed any relevant materials or information in the affidavit filed by him.
23. It was contended that the returning officer has never acted with any prejudice as alleged. She has acted impartially and treated everyone equally. It is incorrect to say that she was member of a political party holding the port folio revenue. On finding that the defects now pointed out in the Election Petition were not of substantial character, the nomination of respondent No.1 was accepted by the returning officer. The observations made by the Apex Court in Kisan Shankar Kathore v. Arun Dattatray Sawant and Others [(2014)14 SCC 162] are not applicable in the case on hand since the alleged defects in the affidavit to which attention was drawn by the Election Petitioner was of insubstantial character.
24. It was contended furthermore that the particulars constituting a complete cause of action are not pleaded in the Election Petition No. 10 of 2021 -:15:- Election Petition on hand. The materials relied on by the Election Petitioner and appended to the Election Petition were not properly verified and its correctness certified and therefore are inadmissible in evidence. The Election Petition deserves to be dismissed, invoking Order VII Rule 11 of the Code of Civil Procedure, 1908. Accordingly he seeks for accepting the contentions and dismissing the Election Petition. He has also produced the letter sent by him to the Secretary, Department of Agriculture, Government Secretariat, Thiruvananthapuram on 16.03.2021, tendering resignation from the post of Chairman, Corporation, the proceedings dated 17.03.2021 issued by the Additional Secretary of Government by Order of Governor accepting the resignation, certificate dated 17.03.2021 issued by the Managing Director of the Corporation certifying that the respondent has no dues with the Corporation as on date, certificate issued by the Branch Manager of the Life Insurance Corporation Vandiperiyar certifying that neither any dividend, nor interest was paid to respondent No.1.
25. Replication was filed by the Election Petitioner stating that the defect noted in the verification of the Election Petition was not stated in the written statement filed by respondent No.1 Election Petition No. 10 of 2021 -:16:- and therefore the allegation is a vague one, that respondent No.1 has stated in the affidavit (Paragraph 8) that he was not using vehicle or accommodation of Government at the time of submission of nomination. Whereas what actually he has to state was whether he has used Government accommodation during the past ten years prior to the date of submission of the nomination. Respondent No.1 had never shown the 'no dues certificate' to the returning officer as alleged. Respondent No.1 has not produced the 'no dues certificate' alongwith the affidavit, which was required to be produced. Mere showing of that to the returning officer will not suffice. Respondent No.1 used to avail the guestroom of the Corporation. It has been obtained by one Mr.Biju Modiyil under the Right to Information Act, 2005 from the State Public Information Officer, by letter dated 03.11.2021 that respondent No.1 used to avail accommodation facility at the Guest House of the Corporation, the letter and copy of it's translation were appended to as (Annexure IX) and IX(a) respectively. Having availed the Guest House of the Corporation for accommodation, respondent No.1 was bound to state the details of that in the affidavit and failure to state so would Election Petition No. 10 of 2021 -:17:- tantamount to suppression of relevant particulars in the affidavit sworn to by him and that is a defect of substantial character.
26. Evenif respondent No.1 had no taxable income to pay income tax during the financial year 2015-16 he had to state so in the affidavit rather than keeping the Column meant for blank. Omission of the nature is a defect of substantial character, when viewed in the light of the directions issued by the Apex Court in Resurgence India v. Election Commission of India and Another [(2014) 14 SCC 189]. Likewise, omission to furnish the names of dependents in the affidavit is also a material defect vitiating nomination. Income tax dues have been deducted by the LIC from the amount due to the wife of respondent No.1 by way of LIC commission.
27. Respondent No.1 had not denied the averment of the Election Petitioner that his wife was having a PAN and had filed returns at the Income Tax Department in the written statement filed. Respondent No.1 is bound to furnish the correct information and mentioning, 'Not applicable' against a column would not satisfy the requirement of furnishing of the actual information. Though it was contended that necessary particulars regarding the bank account of the respondent No.1 were Election Petition No. 10 of 2021 -:18:- furnished, it is incorrect since the bank account number, the type of account maintained, details of Fixed Deposits, number of the LIC certificate, name of the LIC scheme, period of the policy, model and type of the vehicle, year of it's manufacture, bonus obtained from the LIC and interest on deposits having not been furnished, undoubtedly there is suppression of material facts in the affidavit. Instead of writing 'yes' or 'No' to a query, whether accommodation facility or vehicle provided by the Government had been used by respondent No.1 in the column meant for furnishing, he has written 'Not applicable' and that tantamount to suppression of material aspects relevant in the affidavit.
28. Omission to make a mention about the dues to the Corporation, towards Electricity, water, and telephone in the affidavit and non-furnishing of ' no dues certificate' certified by an officer of the Corporation concerned is also crucial.
29. The returning officer is not bound to provide an opportunity to 1st respondent No.1 to cure substantial defects or supplement the suppressed facts. The returning officer failed to evaluate the mandatory directions issued by the Apex Court in Resurgence India supra while scrutinising the nomination of respondent No.1.
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30. The documents appended to the written statement filed by respondent No.1 are devoid of basis and therefore are liable to be discarded and the Election Petition is only to be allowed.
31. The following points are framed for consideration in the Election Petition.
"1. Whether nomination paper of the 1 st respondent ought to have been rejected by the Returning Officer as the 1 st respondent did not fill up the mandatory columns and did not answer certain mandatory columns by marking the remarks "Not Applicable", in his affidavit filed in support of his nomination paper and whether his election is liable to be set aside ?
2. Whether election of the 1st respondent is liable to be set aside on the grounds that he suppressed material facts and furnished false answers in his affidavit filed in support of his nomination paper and that he did not produce 'no dues certificate" in respect of his Government accommodation and usage of Government vehicle ?
3. Whether nomination papers of the respondents 2 to 5 ought to have been rejected by the Returning Officer as they did not fill up the mandatory columns and did not answer certain mandatory columns, in their affidavit of the respondents 2 and 4 were not properly authenticated and attested by the notary public ?
4. Whether the result of the election of the 1 st respondent has been materially affected by improper acceptance of nomination of the 1st respondent and the respondents 2 to 5 by the Returning Officer ?
5. Whether the election of the 1 st respondent to the Peermedu Legislative Assembly Constituency No.092 held on 06.04.2021 is liable to be declared void and set aside and Election Petition No. 10 of 2021 -:20:- whether it is liable to be declared that the petitioner is duly elected in the said election, the petitioner being the only candidate who only validly submitted nomination paper ?"
32. Witnesses and the Election Petitioner were examined as PWs 1 to 6 and documents were marked as Exts.A1 to A9, A9(a), X1 to X3 and Ext.X1(a) to X1(k). RWs 1 to 3 were examined and Exts.R1 to R4 were marked on the side of respondent No.1.
33. Mr.Sabu Thomas, an advocate and election agent of the Election Petitioner was examined as PW5. According to him, Sobin Soman and Sobith Soman are practising lawyers at Irinjalakkuda Courts and they are children of Mrs.Vazhoor Soman (Respondent No.1). Mr.Sobin commenced his practice in the year 2015 and married also. Mr.Sobith Soman started his practice in the year 2020 and concentrated mainly on labour laws and was not in regular practice in courts. According to him, Mr.Vazhoor Soman submitted two nomination papers and in the affidavit filed alongwith one, defects were noticed by the returning officer and a leading question was put, whether the second nomination was accepted stating the defects as of insubstantial nature, he answered, defects were there, but being influenced by the then ruling party, the nomination alongwith the Election Petition No. 10 of 2021 -:21:- affidavit was received. According to him, he was having standing as a lawyer for 31 years and had visited the booth not as a representative of election, but to clarify from the returning officer whether, the nomination is to be submitted before 3 p.m. He overheard the above from the mouth of the Assistant Returning Officer. According to him, objection was filed at the time of scrutiny of nomination. According to him, he had also signed it alongwith the Election Petitioner. According to him, an order was also passed by the returning officer stating that the defects found in the affidavit are not substantial ones.
34. The returning officer was examined as PW6. According to her, during election to the Peermade Legislative Constituent Assembly, she being the Assistant Cardamom Settlement Officer, acted as returning officer.
35. The file relating to the above election was shown to her. On her identification, the affidavits laid by respondent No.1, Sri.Nagaraj, Sri.Biju Thomas, Sri.Gopalakrishnan and Sri.Soman Kunjukunju, alongwith their nominations were identified by her as Exts.X1(a) to X1(f) respectively. She also identified the objection laid by Mr.Cyriac Thomas against the affidavit of respondent No.1, through his agent, Mr.Sabu Thomas (PW5), the Election Petition No. 10 of 2021 -:22:- order passed on 20.03.2021 by herself as returning officer discarding the objection, the result sheet of the election held on 06.04.2021 and the final result sheet of the election. Those were marked in evidence respectively as Exts.X1(g) to X1(j).
36. According to her, column No.5 of paragraph 4 of Ext.X1(a) is meant to furnish the total income of the candidate for five years immediately preceding the submission of nomination is to be shown. According to her, the last row of column No.5 was kept blank. In Sl No.2, PAN was stated as not allotted to Mrs.Bindu Soman and the column meant to furnish the income of Mrs.Bindu Soman, was left blank. According to her, 'Not applicable' is written against the row meant for writing the last financial year in which the return was filed. According to her, in the affidavit the particulars of the dependents of Sri.Vazhoor Soman mainly, the names of the dependents are not furnished. According to her, except the amount in deposit, details of the bank account and LIC were not furnished. According to her, the model of the vehicles as well as the year of purchase of those were not furnished. According to her, the word 'അല്ല' was written against a query in the format of the affidavit, whether he had availed the accommodation facility provided by Election Petition No. 10 of 2021 -:23:- the Government. According to her in the affidavit filed in English also, the answer was in the negative.
37. According to her, the affidavit shall be submitted in the format of form No.26, and she received the one prepared in malayalam. She would also state that against the column where, address, and the dues of the candidate towards water charges, telephone charges and electricity charges, it was written as 'Not applicable' by respondent No.1. According to her, certificate of no dues shall also be furnished alongwith the affidavit, but was filed. According to her, against the columns meant for furnishing the income at the time of filing returns of income tax and Government vehicle also 'Not applicable' was also shown.
38. The affidavit was also not authenticated by a Notary. The amount held in possession was not shown in the affidavit. According to her, nomination paper was accepted after examining the handbook for returning officer, checklist for returning officer and handbook for candidates.
39. During cross examination witnesses identified the nomination paper submitted by respondent No.1 as Ext.X1(a) and admitted Ext.X1(g) as the only objection received against the nomination of Sri.Vazhoor Soman. According to her, being Election Petition No. 10 of 2021 -:24:- convinced that the defects pointed out in the objection were not substantial ones, that an order was passed by her on 20.03.2021. In re-examination, she had gone to the extent of stating that oral objections were raised but, the order was passed discarding those.
40. The Assistant Cardamom Settlement Officer was summoned to furnish the Election file and on appearance was examined as PW1. She has produced the election file and marked in evidence as Ext.X1. According to her, the returning officer of the election retired from service on 31.03.2022.
41. The Joint Manager of the Corporation who was also the Public Information Officer, was examined as PW2. According to him, since 2016, he was working in that capacity. She identified her signature in the reply dated 03.11.2021 sent against the application put by one Mr.Biju Modiyil on 08.10.2021 and marked in evidence as Ext.X2. During cross examination, he deposed that accommodation was not earmarked by the Government for the Chairman of Ware Housing Corporation. Guest room is only a small room attached to the office of the Corporation and the members of Board of Directors used to take rest there during their official visits and no register is maintained in the office with Election Petition No. 10 of 2021 -:25:- regard to the year. According to him, Mr.Vazhoor Soman had used the guest room for the purpose of rest as well as for stay while he was holding the post as Chairman of the Corporation. According to him, only when the guest room was unsuitable for accommodation, as if, during floods, he opted to reside outside.
42. The income tax officer of Ward No.1 of Thodupuzha was examined as PW3. According to her, she was working so since 2009. According to her, though she was asked to produce the returns filed by Smt.Bindu Soman, she did not, for the reason that returns were not filed by her during the period. According to her, PAN was allotted to her, having number PAN-BRE PS 9259 K and she was an income tax assessee also. According to her, PAN was deducted at source from her income during 2019-2020. According to her, as per the records available at the income tax Office, Mrs.Bindu Soman was working as agent of the LIC as well as in a Vodafone company and returns were also filed during the financial years 2009-2010 and 2011 - 2012. According to her, if the income falls excess of Rs.2,50,000/-, filing of returns are mandatory.
43. The system generated copy of a receipt evidencing payment of income tax for the period referred to was produced Election Petition No. 10 of 2021 -:26:- and is marked in evidence as Ext.X3. During cross examination, it was clarified through her the allotment of PAN in the year 2008 and that income tax returns were not filed by her except for the period stated during examination in chief. Respondent No.1 deposed as RW1. In the proof affidavit filed in lieu of examination in chief, he reiterated the contentions raised in the written statement filed in the Election Petition.
44. Admittedly, he held the office of Chairman of the Corporation from 26.12.2016 till 16.03.2021. According to him, it was a project where the Central as well as the State Government have equal participation. According to him, the affidavit in English and Malayalam were signed by him after being convinced of it's contents. According to him, the affidavit prepared in English was given first and the one in Malayalam, later.
45. According to him, the facts sworn to in both affidavits are true ones. According to him, the 5 th column of paragraph No. 4 of the affidavit was not filled up for the reason of not holding the office of Chairman of the Corporation and tax was not deducted at source for that period. According to him, where the information sought from him appears as not applicable, he left Election Petition No. 10 of 2021 -:27:- those blank. According to him, in the column meant for showing the PAN, it was written as not allotted, for the reason that his wife was then out of station. According to him, the column was filled accordingly based on the information procured by his son over phone from his wife. According to him, the affidavit was prepared by his son Mr.Sobin Soman who was a lawyer by profession. According to him, the nomination paper was read in full prior to signing and the affidavit was prepared by his son in a hurry and when questioned on the basis of the relevant column, whether he had put the signature in the affidavit after being convinced of the information furnished with reference to PAN he did not respond. He pleaded ignorance about allotment of PAN to his wife and stated that only on questioning his wife and son who prepared the affidavit, the incorrectness of the information could be ascertained. According to him, he was aware of the objection raised by the Election Petitioner against the facts sworn to in the affidavit filed in Malayalam that PAN card was not allotted to his wife from the Income Tax Department. According to him, even at the time of filing of the written statement, he did not get a clarification regarding the factum from his wife. Due to busy schedule of life, he could not Election Petition No. 10 of 2021 -:28:- get it clarified even at the time of preparation of the proof affidavit. Prior to proceeding to this Court for examination as a witness in the Election Petition also, he could not get convinced of the allotment of PAN from the Income Tax Department in favour of his wife.
46. According to him, his wife was a member of Consumer Dispute Redressel Forum, Idukki (for short 'CDRF') for two terms, but could not re-collect the exact period. According to him, the information that his wife was not allotted PAN was not a deliberate misrepresentation, but a non-willful omission due to his lack of knowledge. Admittedly, a Government vehicle was allotted to him during his tenure as Chairman of the Corporation and a Board of his official capacity was also exhibited at the time of it's use. He had also stayed in the Government Guest House during official visits, after obtaining sanction from the Government. According to him, the guest room attached to the office of the Corporation was also used by him particularly, during times of flood. According to him, during his official visits at the 14 Districts, he stayed at the Government Guest Houses and the guest room which is permissible also. According to him, the rentals prescribed by the Government was not paid by him Election Petition No. 10 of 2021 -:29:- but only by the Corporation. According to him, 'No dues Certificate' which he was called upon by the format of affidavit was produced before the returning officer at the time of scrutiny after filing of the nomination. According to him, his nomination was accepted by the returning officer since the no dues certificate was furnished by him. After going through the relevant part of the affidavit he deposed that against the column meant for furnishing the above details, 'Not applicable' was written by him. According to him, it is impossible to furnish the details of the government accommodation made use by him and therefore, filled with 'Not applicable'. He has also stated that payments were made by him on all occasion of his use of Government Guest houses of stay.
47. According to him, against the columns meant for furnishing details of payment of dues towards water charges, electricity charges, and telephone charges also, 'Not applicable' was written genuinely since those are inapplicable. When the additional written statement filed by him on 14.06.2022 was put to him, he admitted as stated about the issuance of PAN by the Income Tax Department, to his wife and when confronted with the statement given by him during examination in the Court that Election Petition No. 10 of 2021 -:30:- he was unaware of the issuance of the PAN, he stated the latter say as correct. He also clarified stating that he had stated so in the additional written statement after getting the same clarified from his wife.
48. Admittedly, entire details called for regarding the bank account, deposits made there and names of dependents were not furnished. According to him, his wife and children were not dependent on him and therefore, information was not furnished in that regard. But when confronted with a relevant column in the affidavit, he admitted that the children were shown as dependents 1 and 2. Admittedly he passed SSLC, PDC, Electrical Engineering and Diploma in Social Sciences but in the affidavit filed in Malayalam alongwith the nomination, the educational qualification was shown as SSLC only.
49. According to him, due to limitation of time he could not trace out the certificates with reference to those and therefore it was stated so. But, when confronted with regard to the non requirement to furnish certificates of educational qualification, he did not respond. According to him, immovable properties held jointly by himself and his wife were shown in the affidavit filed in English, whereas in the affidavit filed in Malayalam, it was not Election Petition No. 10 of 2021 -:31:- stated that any immovable properties belongs to him. According to him, 'no dues certificate' was furnished to the returning officer. But, when confronted with his statement during examination that the one produced alongwith his written statement is the original, he deposed to have no idea, whether it is original or a copy of it.
50. Admittedly, 'no dues certificate' filed before the returning officer, could not be located from the Election file marked in evidence as Ext.X1.According to him, the defects in the affidavit filed in English when pointed out by the returning officer, he has filed the one in Malayalam. He denied the suggestion put to him that the omissions and the answers furnished as 'not applicable' wrongly are only meant to suppress the real facts.
51. He clarified during re-examination that official accommodation was not earmarked and allotted to him while holding the post of Chairman of the Corporation, and whenever facilities of accommodation provided by the Government Guest Houses, were availed by him, the rentals were also paid by him then and there.
Election Petition No. 10 of 2021 -:32:-
52. Adv.Sobin Soman, the eldest son of respondent No.1 was examined as RW2. According to him, the affidavit was prepared by him after being convinced of the instructions issued by the Election Commission, but, he had not read the directions issued by the Apex Court in the form of guidelines in Resurgence India supra. According to him, the affidavit filed by his father on 18.03.2021 was prepared by one Mr.Sreekumar, his clerk in his presence. He could not recollect whether it was read by him. He denied the suggestion that since the defects in the affidavit filed firstly were pointed out, that the second affidavit was filed.
53. He deposed as if it did not come to his notice that several columns in the affidavit filed on 18.03.2021 were kept blank and could not recollect whether any columns in the affidavit filed in Malayalam on 19.03.2021 were kept blank. He added by stating that as he recollects, all columns were filled up. When confronted with the columns left blank, he took a stand that, to his understanding, relevant columns alone need to be filled up. According to him it was incorrect to say that the columns were left blank with a view to suppress anything. According to him, though he is attached to the office of his Election Petition No. 10 of 2021 -:33:- Senior, he has been doing independent work, since 2015. He was not financially depending on his parents, since he has earning of his own. According to him, his brother Adv.Sobith Soman started practising under him and therefore was under his financial support. He also has income from cases handled by him before Gratuity Controlling Authority independently. He started practising before that authority even prior to his enrollment since there was no bar against. When confronted with non-furnishing of the above aspects, his answer was that the factum that he has independent income is stated. When confronted with the statement in the affidavit filed that they were dependents of respondent No.1, he clarified by stating that only their stay together under a roof was intended thereby. He stated precisely that, himself and his brother have no financial dependence on their parents. Admittedly of him, himself and his brother were not holding immovable properties. According to him, he contacted his mother prior to the preparation of the affidavit. According to him, she had been a member of CDRF for two terms, that is from 2000 till 2005 and 2008 till 2013. According to him, he has no information that while holding the Election Petition No. 10 of 2021 -:34:- office so, his mother has filed returns before the Income Tax Department.
54. According to him, at the relevant time he has not started practising an an Advocate. According to him, even at the time of preparation of the affidavit, though he was an Advocate then, was not aware that a person receiving salary needs to file returns. According to him, his mother was receiving only honorarium for the services rendered by her as a member of CDRF. Admittedly, his mother was an agent of LIC. According to him, he came to know that his mother was holding PAN only at the time of filing of the written statement in the Election Petition and not prior to that. The wife of respondent No.1 was examined as RW3. According to her, she was an agent of LIC since 1994, much prior to assuming the post of member of CDRF. On assuming the office of the member of CDRF after 2010, she started to file income tax returns. When confronted with the factums sworn by her in the affidavit whether income tax returns have been filed by her through the office of CDRF during 2000-2005 and 2008-2013, she said, what has been stated in the affidavit is correct. Admittedly, she has PAN but could not Election Petition No. 10 of 2021 -:35:- recollect the number as well as the year in which it was received by her.
55. She deposed from her memory that income tax return was filed lastly in the year 2013 but denied the suggestion put to her that income tax returns were filed even after 2013. According to her, she was fully aware of the PAN issued to her. When confronted with the version of RW2 about the non-issuance of PAN based on the information obtained from her, she admitted that and said, it is incorrect to state that her disclosure as above was only to justify the statements made by her husband in the affidavit filed alongwith the nomination paper. According to her, though she was residing together with her two children and husband they had not discussed the above aspects prior to the preparation of the affidavit. According to her, she came to know the falsity involved in the statement that PAN was not issued to her, only when summons was received from the court in the Election Petition. According to her, she informed that to her husband and children after receiving the summons. According to her, PAN card was given to the office of LIC as well as CDRF while working there. She had taken a stand of non-association with Election Petition No. 10 of 2021 -:36:- vodafone and loss of her PAN card, but she has not informed anywhere.
56. Therefore, it is clear from the version of RWs 1 to 3 that the affidavit filed by RW1 before the returning officer was defective and those were pointed out to him. According to PW1, affidavits in Malayalam was filed when the defect in the affidavit filed primarily in English were brought to the notice of RW1. According to RW1, affidavits were filed alongwith separate nominations. According to the returning officer, the affidavit filed in English Language on 18.03.2021 was defective for several reasons and those were informed to RW1. Thus, the affidavit in Malayalam was filed. According to PW1 eventhough the second affidavit was filed after curing the defects, it has been brought by PW1 from his own oral evidence and those derived during cross examination of RWs 1 to 3 that the affidavit filed secondly also carried defects mostly of the nature of omissions and statements contrary to actual facts. Even the answers demanded by the columns in the affidavit were not furnished. Instead, answers undesired were furnished. It was also brought out during cross examination of RWs 1 to 3 that the witnesses were inconsistent in their versions on several aspects.
Election Petition No. 10 of 2021 -:37:-
57. The question relevant for consideration in this context is whether the omissions, non-disclosures and suppressions in the affidavits brought out during cross examination of RWs 1 to 3 are of substantial nature.
58. Counsel representing the rival parties to the Election Petition has also relied on the dictums laid down by the Hon'ble Apex Court in various decisions to rest their respective arguments.
59. In Union of India & Others v. Association for Democratic Reforms and Others [ 2002(4) SCALE 297] the Hon'ble Apex Court has issued some directions and the Election Commission of India in exercise of its powers of superintendence, direction and control, interalia of conduct of Elections to Parliament and State Legislatures conferred on it by Article 324 of the Constitution has ordered, Vide its order No.3/ER/2003/JS-II dated 27th March 2003 that, "(1) Every candidate at the time of filing his nomination paper for any election to the Council of States, House of the People, Legislative Assembly of a State or the Legislative Council of a State having such a council, shall furnish full and complete information in regard to the matters specified by the Hon'ble Supreme Court and quoted in paras 13 and 14 above, in an affidavit, the format whereof is annexed hereto as Annexure-1 to this order.
Election Petition No. 10 of 2021 -:38:- (2) The said affidavit by each candidate shall be duly sworn before a Magistrate of the First Class or a Notary Public or a Commissioner of Oaths appointed by the High Court of the State concerned.
(3) Non-furnishing of the affidavit by any candidate shall be considered to be violation of the order of the Hon'ble Supreme Court and the nomination of the candidate concerned shall be liable for rejection by the retuning officer at the time of scrutiny of nominations for such non-furnishing of the affidavit. So too Election Commission of India vide Order dated 28 th June, 2002, had ordered that (4) Furnishing of any wrong or incomplete information or suppression of any material information by any candidate in or from the said affidavit may also result in the rejection of his nomination paper where such wrong or incomplete information or suppression of material information is considered by the returning officer to be a defect of substantial character, apart from inviting penal consequences under the Indian Penal Code for furnishing wrong information to a public servant or suppression of material facts before him:"
In Resurgence supra the Hon'ble Apex Court held :
"When a candidate files an affidavit with blank particulars, it renders the affidavit itself nugatory. For that purpose, the Returning Officer can very well compel a candidate to furnish information relevant on the date of scrutiny. We were apprised that the Election Commission already has a standard draft format for reminding the candidates to file an affidavit as stipulated. We are of the opinion that along with the above, another clause may be inserted for reminding the candidates to fill the blanks with the relevant information thereby conveying the message that no affidavit with blank particulars will be entertained. We reiterate Election Petition No. 10 of 2021 -:39:- that it is the duty of the Returning Officer to check whether the information required is fully furnished at the time of filing of affidavit with the nomination paper since such information is very vital for giving effect to the 'right to know' of the citizens. If a candidate fails to fill the blanks even after the reminder by the Returning Officer, the nomination paper is fit to be rejected."
(emphasis supplied) A direction was also issued in the case that columns in the affidavit shall not be left vacant.
60. In Mairembam Prithviraj and Others v. Pukhrem Sharatchandra Singh and Others [AIR 2016 SC 5087] was relied on by the learned counsel for the Election Petitioner, the candidate mentioned his educational qualification as MBA from Mysore University, which he never did. Respondent in the Election Petition objected to the nomination paper at the time of scrutiny stating that false declaration relating to educational qualification was made by the Election Petitioner. The returning officer directed him to submit documents in proof of his educational qualifications as declared in the affidavit filed under Form 26 but, he failed to produce those. Inspite of the production of those as directed, the returning officer accepted his nomination Polling took place and the Election Petitioner who secured 14,521 votes was declared elected as MLA from the Election Petition No. 10 of 2021 -:40:- Manipur Legislative Assembly, on 04.01.2012. That was challenged in an Election Petition, the High Court of Guwahati on the ground of improper acceptance of the Nomination and corrupt practices of the appellant. The Election Petitioner denied the allegation of false declaration. He also took a stand that the declaration made by him that he passed MBA from Mysore University in 2004 was a clerical error. The respondent abandoned the allegation of corrupt practices and other electoral Malpractices during the trial of the Election Petition in the High Court. After careful consideration of the materials on record and various judgments cited by the parties, the High Court concluded that the declaration made by the appellant in Form 26 about the educational qualification, as MBA from Mysore University was false. The plea of the Election Petitioner that the defect in Form 26 was due to a clerical error was rejected. The contention of the Election Petitioner that providing wrong information about the educational qualification was not a defect of substantial character was also rejected.
61. The High Court of Guwahati held in the above case that the nomination of the Election Petitioner was improperly accepted and therefore, the result of his election stood Election Petition No. 10 of 2021 -:41:- automatically affected materially. For the reasons, the High Court declared the election as void. Appeal was filed by the Election Petitioner before the Hon'ble Apex Court. There also, the argument advanced was that the declaration pertaining to the educational qualification was a clerical error and cannot be termed as a false declaration. It was contended further that it was not a defect of substantial nature warranting rejection of his nomination paper. It was also pointed out that there was neither pleading nor proof in the Election Petition that improper acceptance of the nomination of the Election Petitioner had materially affected the result of the election. Accordingly, election was sought to be maintained.
62. The learned counsel for the respondent pointed out to the Apex Court, the pleadings taken in the Election Petition and also the evidence adduced on its' basis. False declaration made about educational qualification, while contesting election to the Legislative Assembly in the year 2008 was also pointed out to the Court by the counsel for the respondent to convince it as not a clerical error. It was also submitted that a voter has a right to know the educational qualification of the candidate and any false or misdeclaration would result in rejection of the nomination of Election Petition No. 10 of 2021 -:42:- the candidate. Accordingly, it was canvassed to treat the false declaration of educational qualification as a defect of substantial character.
63. The Apex Court has taken note of the press note issued by the Election Commission of India on 28.06.2002, where on the basis of the judgment in Union of India v. Association for Democratic Reforms, it was directed that full and correct information have to be furnished which include the educational qualification also. It was mentioned therein that providing incomplete information or suppression of material information on any of the five aspects was to be treated as a defect of substantial character by the returning officer. It was held :
" 18. The contention of the Appellant that the declaration relating to his educational qualification in the affidavit is a clerical error cannot be accepted. It is not an error committed once. Since 2008, the Appellant was making the statement that he has an MBA degree. The information provided by him in the affidavit filed in Form 26 would amount to a false declaration. The said false declaration cannot be said to be a defect which is not substantial. He was given an opportunity by the Returning Officer to produce the relevant document in support of his declaration. At least at that point of time he should have informed the Returning Officer that an error crept into the declaration. He did not do so. The false declaration relating to his educational qualification cannot be stated to be not of a substantial character. It is no more res integra that every candidate has to disclose his educational Election Petition No. 10 of 2021 -:43:- qualification to subserve the right to information of the voter. Having made a false declaration relating to his educational qualification, the Appellant cannot be permitted to contend that the declaration is not of a substantial character. For the reasons stated supra, we uphold the findings recorded by the High Court that the false declaration relating to the educational qualification made by the Appellant is substantial in nature." (emphasis supplied)
64. With regard to the specific argument put by the respondent that an election cannot be set aside on the ground of improper acceptance of any nomination without a pleading and proof that the result of the returned candidate was materially affected, the Hon'ble Apex Court after referring to various provisions of law in the R.P Act and also the dictum laid down by it in Durai Muthuswami v. N.Nachiappan [(1973) 2 SCC 45] which was canvassed by the learned counsel for the respondent as not applicable to the facts of the case under reference above, held :
"23. Mere finding that there has been an improper acceptance of the nomination is not sufficient for a declaration that the election is void under Section 100 (1) (d). There has to be further pleading and proof that the result of the election of the returned candidate was materially affected. But,there would be no necessity of any proof in the event of the nomination of a returned candidate being declared as having been improperly accepted, especially in a case where there are only two Election Petition No. 10 of 2021 -:44:- candidates in the fray. If the returned candidate's nomination is declared to have been improperly accepted it would mean that he could not have contested the election and that the result of the election of the returned candidate was materially affected need not be proved further. We do not find substance in the submission of Mr. Giri that the judgment in Durai Muthuswami (supra) is not applicable to the facts of this case. The submission that Durai Muthuswami is a case of disqualification under Section 9-A of the Act and, so, it is not applicable to the facts of this case is also not correct. As stated supra, the election petition in that case was rejected on the ground of non-compliance of Section 100 (1) (d). The said judgment squarely applies to this case on all fours. We also do not find force in the submission that the Act has to be strictly construed and that the election cannot be declared to be void under Section 100 (1) (d) without pleading and proof that the result of the election was materially affected. There is no requirement to prove that the result of the election of the returned candidate is materially affected once his nomination is declared to have been improperly accepted."(emphasis supplied)
65. The Apex Court has also considered the prayer of the Election Petitioner to get himself declared to have been elected, but was declined to interfere with the discretion exercised by the High Court of Guwahati while holding against, in view of the fact that the Election Petitioner having been contested the election under one political party and being declared as elected, joined another political party.
66. In Brinjendralal Gupta and Another v. Jwala Prasasd and Others [1960 KHC 726] relied on by the learned Election Petition No. 10 of 2021 -:45:- counsel for the Election Petitioner, the Hon'ble Apex Court considered the question, whether failure to comply with the provisions of Section 33 would justify the rejection of the nomination paper and held :
"9. The next question which we must consider is whether in the case of such an omission it was obligatory on the Returning Officer to hold an enquiry under S. 36(2) of the Act. The High Court has held that the Returning Officer ought to have held an enquiry under S. 36(2)(a) and satisfied himself whether or not respondent 5 was eligible to stand for the election. In our opinion the High Court was in error in coming to this conclusion. If the nomination paper of respondent 5 did not comply with the provisions of S. 33 the case fell squarely under S. 36(2)(b) and the only question which can arise in such a case is whether or not the defect arising from the failure to comply with the provisions of S. 33 is of a substantial character or not. If the defect is not of a substantial character the Returning Officer shall not reject the nomination paper on the ground of the said defect; if, on the other hand, the defect is of a substantial character the returning officer has to reject the nomination paper on the ground of the said defect, That is the effect of the provisions of S.36(2)(b) and (4) read together. An enquiry which is necessary under S.36(2)(a) may and can be held for instance in cases where the nomination paper shows the age of the candidate as above 25, but an objection has been raised that in fact he is below 25 and as such incompetent to stand for election under Art.173 of the Constitution; in other words, the impugned nomination has complied with the provisions of S.33 and as such does not fall under S. 36(2)(b) at all, nevertheless the validity of the nomination can be challenged on the ground that, in fact Art.173 is not complied with. Cases falling under this class must be distinguished from cases falling under Election Petition No. 10 of 2021 -:46:- S.36(2)(b). In the latter class of cases the failure to comply with the provisions of S.33 being established there is no scope for any enquiry under S. 36(2) (a). Once the alleged non compliance is proved, the defective nomination falls to be accepted or rejected according as the defect is of an unsubstantial or of a substantial character. Therefore, it is not right to hold that even after the Returning Officer was satisfied that the omission to specify his age showed that the nomination paper of respondent 5 had not complied with the provisions of S.33, he should still have held an enquiry under S. 36(2) (a). Non compliance with the provisions of S.33 itself would justify the rejection of the nomination paper provided of course that the defect arising from the non-compliance in question is of a substantial character. "
67. It was a case where the candidate contesting the election omitted to make the declaration regarding his age in the nomination paper. The defect was noticed by the returning officer in the preliminary scrutiny itself and the nomination was rejected by him. In a challenge raised by a candidate defeated in the election, one of the contention was that the nomination of the above contesting candidate has been improperly rejected by the returning officer. The question considered was that whether the improper rejection of nomination of one candidate would defeat the election as such and it is liable to be declared as void.
68. Election Tribunal found the rejection of the nomination proper and thus dismissed the Election Petition. The appeal preferred against before the High Court of Madhya Pradesh at Election Petition No. 10 of 2021 -:47:- Jabalpur was allowed for the reason that the candidate offered to supply the omission at the time of scrutiny, the returning officer refused to permit him. Therefore, for the reason that the returning officer failed to hold a summary enquiry before rejecting the nomination of a contesting candidate, which he was bound to do, the non-mentioning of age was found as not a defect of substantial character under Section 36(4) of the Act.
69. In the appeal preferred against, the Hon'ble Apex Court allowed the appeal, set aside the judgment of the High Court in the Appeal and thereby confirmed the finding of the Election Tribunal. The dictum of the Apex Court lies in paragraphs 6,8, 9, 10 & 15. Those are extracted hereunder:
"6. It is clear that S.33 requires that a nomination paper must be completed in the prescribed form and signed by the candidate and by the elector of the constituency as proposer. The form prescribed in that behalf is Form No. 2B. The relevant portion of the prescribed form reads thus:-
Form 2B.
Nomination Paper (See rule 4) Election to the Legislative Assembly of.........(State) (To be filled in by the proposer) Election Petition No. 10 of 2021 -:48:- I hereby nominate................as a candidate for election from the.................. Assembly Constituency.
1. Full name of proposer..................
2. Electoral roll number of proposer............
3. Name of candidate's ++father/husband..............
4. Full postal address of candidate...........
5. Electoral roll number of candidate...........
Date ...... Signature of proposer.
-----------------------------------------------------------------------------------
(To be filled by the candidate) I, the above-mentioned candidate, assent to this nomination and hereby declare-
(a) that I have completed............. years of age;
(b) that the symbols I have chosen are in order of preference
(i) ...............................
(ii) ............................... and
(iii) ...............................
Date Signature of candidate.
*Strike out one of the alternatives as necessary. Election Petition No. 10 of 2021 -:49:- It is common ground that the first part of the nomination paper which has to be filled in by the proposer was in order and the second part was duly signed by the candidate but failed to declare his age as prescribed by (a) above. When the Returning Officer noticed this omission he made an order rejecting respondent 5's nomination. The brief statement of reasons which the Returning Officer has recorded shows that he held that the failure of respondent 5 to declare his age cannot be treated as clerical or technical error, but is of a substantial nature since declaration as to age was necessary in order to entitle a candidate to be qualified under Art.173 of the Constitution. The Returning Officer has also noted that he took the objection suo motu and rejected the nomination paper of respondent 5. Thus there is no doubt that respondent 5 has omitted to specify his age before he signed his nomination paper and in that sense his nomination paper has not been completed in the prescribed form. The question which arises for our decision is whether respondent 5's omission to specify his age in his nomination paper amounts to a defect, and if yes, whether it is a defect of a substantial character under S.36(4) of the Act.
8. On the other hand the dictionary meaning of the word "defect" is "lack or absence of something essential to completeness", and in that sense omission to specify the age can and would be treated as a defect under S. 36(4). Defect also means " a flaw or a fault or an imperfection"; but whether or not it includes an omission must necessarily depend upon the context in which the word is used. In our opinion, having regard to the context it would be unreasonable to hold that the word " defect " under S.36(4) excludes all cases of omission to specify the details prescribed by the statute in the nomination paper. We must accordingly reject the appellants' argument that the omission in question is not a defect under S.36(4).
10.That takes us to the question as to whether the failure to specify the age in the nomination paper amounts to a defect of a substantial Election Petition No. 10 of 2021 -:50:- character under S.36(4) or not. There is little doubt that the age of the candidate is as important as his identity, and in requiring the candidate to specify his age the prescribed form has given a place of importance to the declaration about the candidate's age. Just as the nomination paper must show the full name of the candidate and his electoral roll number, and just as the nomination paper must be duly signed by the candidate, so must it contain the declaration by the candidate about his age. It is significant that the statement about the age of the candidate is required to be made by the candidate above his signature and is substantially treated as his declaration in that behalf. That being the requirement of the prescribed nomination form it is difficult to hold that the failure to specify the age does not amount to a defect of a substantial character. The prima facie eligibility of the person to stand as a candidate which depends under Art.173 of the Constitution, inter alia, on his having completed the age of 25 years is an important matter, and it is in respect of such an important matter that the prescribed form requires the candidate to make the declaration. It would, we think, be unreasonable to hold that the failure to make a declaration on such an important matter is a defect of an unsubstantial character. In this connection it is relevant to refer to the fact that the declaration as to the symbols which the prescribed form of the nomination paper requires the candidate to make is by the proviso to rule 5 given a subsidiary place. The proviso to rule 5 shows that any non compliance with the provisions of sub-rule (2) of rule 5 shall not be deemed to be a defect of a substantial character within the meaning of S. 36, sub-s. (4). In other words, this proviso seems to suggest that, according to the rule making authority, failure to comply with the requirements as to the declaration of symbols as specified in rule 5, sub-rule (2), would have been treated as a defect, of a substantial character; that is why the proviso expressly provides to the contrary. This would incidentally show that the failure to specify the age cannot be treated as a defect of an unsubstantial character. Election Petition No. 10 of 2021 -:51:-
15. That takes us to the conditions prescribed by S . 19 of the Act of 1950 for registration in the electoral roll. Section 19 provides that subject to the foregoing provisions of Part III of the said Act every person who, on the qualifying date (a) is not less than 21 years of age, and (b) is ordinarily resident in a constituency, shall be entitled to be registered in the electoral roll for that constituency. Thus when a presumption is raised under S . 36(7) it may mean prima facie that the person concerned is not less than 21 years of age and is ordinarily resident in that constituency; but for the validity of the nomination paper it has to be proved that the candidate has completed 25 years of age. Art.173 of the Constitution which prescribes the qualification for membership of State Legislature provides that a person shall not be qualified in that behalf unless he
(a) is a citizen of India, (b) is, in the case of a seat in the Legislative Assembly, not less than 25 years of age, and (c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament. Confining ourselves to the requirement about age it is obvious that the presumption raised under S . 36(7) would not be enough to justify the plea about validity of the nomination paper because the said presumption only tends to show that the person concerned has completed 21 years of age.It is clear that in regard to persons between 21 to 25 years of age their names would be registered in the electoral roll and so they would be electors if otherwise qualified and yet they would not be entitled to stand for election to the State Legislature. Thus it would not be correct to assume that a reference to the certified copy of the electoral roll would in every case decisively show that the age of the candidate satisfied the test prescribed by Art. 173 of the Constitution; in other words, the requirement about the completion of 25 years of age is outside the presumption under S . 36(7), and that must be the reason why the prescribed nomination form requires that the candidate in signing the said form must make a declaration about his age. This consideration supports our conclusion that the Election Petition No. 10 of 2021 -:52:- declaration about the age is a matter of importance and failure to comply with the said requirement cannot be treated as a defect of an unsubstantial character." (emphasis supplied)
70. In Brijendralal Gupta supra the Hon'ble Supreme Court had considered a case where the candidate to the General Election to the Madhya Pradesh Legislative Assembly from the Mamendragarh Double Member Constituency had omitted to make the declaration regarding the age in his nomination paper. The defect was discovered by the returning officer at the time of scrutiny of the nomination paper and the nomination paper was rejected by him. After the polling took place, the votes secured by the contesting candidates were counted, and two candidates were declared as duly elected to the General and the reserved seat respectively. One of the candidate filed an Election Petition under Section 81 of the Act challenging the election of the candidates who won the election on several grounds, one among which was rejection of the nomination paper of the candidate by the returning officer for non-declaration of the age in the nomination paper, as improper. He prayed for a declaration that the election of the candidate is void and to declare him as duly elected. Election Petition was made over for trial to the Election Tribunal, Raigarh.
Election Petition No. 10 of 2021 -:53:-
71. The Tribunal held that when the candidate did not make any attempt to rectify the defect in the nomination paper, the returning officer could not in law have allowed him to remedy the defect at the stage of the scrutiny of the nomination and that the error in the nomination paper being a defect of a substantial character, rejection of the nomination paper was proper. Thus, the Election Petition was dismissed by the Tribunal.
72. The Appeal preferred before the High Court of Madhya Pradesh was allowed holding that respondent No.5 had at the time of the scrutiny, offered to supply the omission but, the returning officer refused to allow him to do so and that the returning officer was bound to make a summary enquiry before rejecting the nomination paper and that the non-mention of the age in the nomination paper was not a defect of a substantial character and therefore, rejection of the nomination paper was proper. The election thus was set aside by the High Court. In the appeal by Special Leave before the Apex Court, the argument mainly advanced was that omission to specify the details prescribed by the Statute in the nomination paper is not a defect under Section 32(4) of the R.P Act. The court held:
"8. On the other hand the dictionary meaning of the word "defect" is "lack or absence of something essential to Election Petition No. 10 of 2021 -:54:- completeness", and in that sense omission to specify the age can and would be treated as a defect under S. 36(4). Defect also means " a flaw or a fault or an imperfection"; but whether or not it includes an omission must necessarily depend upon the context in which the word is used. In our opinion, having regard to the context it would be unreasonable to hold that the word " defect " under S.36(4) excludes all cases of omission to specify the details prescribed by the statute in the nomination paper. We must accordingly reject the appellants' argument that the omission in question is not a defect under S.36(4)." (emphasis supplied)
73. The question further considered by the Apex Court was whether it was obligatory on the returning officer to hold an enquiry under Section 36(2) of the Act. The Apex Court held:
"9. If the nomination paper of respondent 5 did not comply with the provisions of S. 33 the case fell squarely under S. 36(2)(b) and the only question which can arise in such a case is whether or not the defect arising from the failure to comply with the provisions of S. 33 is of a substantial character or not. If the defect is not of a substantial character the Returning Officer shall not reject the nomination paper on the ground of the said defect; if, on the other hand, the defect is of a substantial character the returning officer has to reject the nomination paper on the ground of the said defect, That is the effect of the provisions of S.36(2)(b) and (4) read together. An enquiry which is necessary under S.36(2)(a) may and can be held for instance in cases where the nomination paper shows the age of the candidate as above 25, but an objection has been raised that in fact he is below 25 and as such incompetent to stand for Election Petition No. 10 of 2021 -:55:- election under Art. 173 of the Constitution; in other words, the impugned nomination has complied with the provisions of S. 33 and as such does Dot fall under S. 36(2)(b) at all, nevertheless the validity of the nomination can be challenged on the ground that, in fact Art. 173 is not complied with. Cases falling under this class must be distinguished from cases falling under S. 36(2)(b). In the latter class of cases the failure to comply with the provisions of S. 33 being established there is no scope for any enquiry under S. 36(2)
(a). Once the alleged non compliance is proved, the defective nomination falls to be accepted or rejected according as the defect is of an unsubstantial or of a substantial character.
Therefore, it is not right to hold that even after the Returning Officer was satisfied that the omission to specify his age showed that the nomination paper of respondent 5 had not complied with the provisions of S.33, he should still have held an enquiry under S. 36(2) (a). Non compliance with the provisions of S. 33 itself would justify the rejection of the nomination paper provided of course that the defect arising from the non-compliance in question is of a substantial character. " (emphasis supplied) "10. That takes us to the question as to whether the failure to specify the age in the nomination paper amounts to a defect of a substantial character under S. 36(4) or not. There is little doubt that the age of the candidate is as important as his identity, and in requiring the candidate to specify his age the prescribed form has given a place of importance to the declaration about the candidate's age. Just as the nomination paper must show the full name of the candidate and his electoral roll number, and just as the nomination paper must be duly signed by the candidate, so must it contain the declaration by the candidate about his Election Petition No. 10 of 2021 -:56:- age. It is significant that the statement about the age of the candidate is required to be made by the candidate above his signature and is substantially treated as his declaration in that behalf. That being the requirement of the prescribed nomination form it is difficult to hold that the failure to specify the age does not amount to a defect of a substantial character. The prima facie eligibility of the person to stand as a candidate which depends under Art. 173 of the Constitution, inter alia, on his having completed the age of 25 years is an important matter, and it is in respect of such an important matter that the prescribed form requires the candidate to make the declaration. It would, we think, be unreasonable to hold that the failure to make a declaration on such an important matter is a defect of an unsubstantial character. In this connection it is relevant to refer to the fact that the declaration as to the symbols which the prescribed form of the nomination paper requires the candidate to make is by the proviso to rule 5 given a subsidiary place. The proviso to rule 5 shows that any non compliance with the provisions of sub-rule (2) of rule 5 shall not be deemed to be a defect of a substantial character within the meaning of S. 36, sub-s. (4). In other words, this proviso seems to suggest that, according to the rule making authority, failure to comply with the requirements as to the declaration of symbols as specified in rule 5, sub-rule (2), would have been treated as a defect, of a substantial character; that is why the proviso expressly provides to the contrary. This would incidentally show that the failure to specify the age cannot be treated as a defect of an unsubstantial character." (emphasis supplied)
74. In Kisan Shanker Kathore supra a voter challenged the election of a candidate who was declared elected to the Election Petition No. 10 of 2021 -:57:- Legislative Assembly from Ambernath Constituency contending that the latter's nomination has been improperly accepted by the returning officer, though he suppressed the dues payable to the Government, the assets of his spouse and the information and assets of a partnership firm of which he is a partner. The High Court accepted the above contentions and held that the nomination of the elected candidate was defective and therefore should not have been accepted by the returning officer. Thus the Election Petition was allowed and the election of the candidate was set aside.
75. In Karikho Kri v. Nuney Tayang and Another [2024 KHC OnLine 6200(SC)], statutory appeal was preferred by Karikho Kri the appellant before the Itanagar Bench of the High Court which allowed the election in part declaring his election void under Sections 100(1)(b), Section 100(1)(d)(i) and (iv) of the Act of 1951. Against the judgment, Karikho Kri field appeal before the Hon'ble Apex Court. Nuney Tayang the opposite party also filed appeal. Both appeals were filed under Section 116 A of the Act. During the course of hearing, Karikho Kri filed IA No.73161/24 as fresh Schedule for election to the Legislative Assembly of the State of Arunachal Pradesh was notified on Election Petition No. 10 of 2021 -:58:- 16.03.2024, expressing his desire to contest the election, proposed to be held on 19.04.2024. He sought leave to contest as a candidate in the upcoming assembly election during the pendency of the appeal. The Apex Court stayed the operation of the impugned judgment and made it clear that any steps taken by Karikho Kri in view of the stay order would be subjected to the final decision that would be taken up on conclusion of the hearing of the appeals.
76. In his Election Petition, the claim of Nuney Tayang was that the nomination of Karikho Kri was improperly accepted by the returning officer as he did not disclose material particulars in his affidavit filed in Form 26 appended to the Conduct of Election Rules, 1961. The issues dealt with are extracted:
"(i) whether there has been a non-disclosure of ownership of vehicles as is required to be disclosed under Clause 7(vi) of the Conduct of Election Rules, 1961 rendering the nomination of the returned candidate invalid.
(ii) whether there has been a non-submission of non-due certificate with regard to electricity charges required to be submitted under clause 8(ii)(b) of Form 26 as the respondent was in occupation of MLA Cottage while was an MLA of Tezu (ST) Assembly Constituency during the year 2009-2014.
(iii) whether the statements made by respondent about the liability of himself and his wife, in respect of municipal tax, property tax due and grant total of all government dues in the Election Petition No. 10 of 2021 -:59:- affidavit appended to the nomination paper, rendered the nomination of the respondent defective.
(iv) whether the non-disclosure of the assets both movable and immovable to the respondent, his wife mother and two sons in the affidavit appended to the nomination paper amount to corrupt practice of undue influence within the meaning of Section 123(2) of Representation of the People Act, 1951.
(v) whether the nature of non-disclosure alleged by the election petitioner is of a substantial nature affecting the election of the returned candidate/respondent No.1."
77. The High Court found that some of the ownership of the vehicles continued to stand in the name of the wife of Karikho Kri and the dependant wife and son of Karikho Kri at the relevant date. The High Court concluded observing that the person in whose name the motor vehicle stood registered should be treated as the owner thereof and held that as on date of presentation of nomination on 22.03.2019 and scrutiny on 26.03.2019, the vehicles were owned by the dependant wife and son of Karikho Kri but they were not disclosed in the affidavit filed under Form
26.
78. With regard to non submission of 'No-due certificate' of electricity and water charges required to be submitted under Form 26, the High Court, noticed that Karikho Kri had occupied the government accommodation in MLA cottage for the period Election Petition No. 10 of 2021 -:60:- 2009-2014. According to Karikho Kri, he lost the election in 2014 and vacated the said accommodation. According to him when he filed his nomination for the Assembly Election in 2014 no-dues certificate was obtained by him after clearing off the dues and submitted it.
79. Since he was not occupying the government accommodation then and outstanding dues were not there then, he did not disclose the same. As Karikho Kri admitted non- disclosure of the factum in his affidavit, the High Court held against him on that count. With regard to the non submission of dues of municipal tax and property tax, the High Court held that disclosure was made in one part and omitted to be mentioned in another part and thus Karikho Kri failed to disclose it. But the learned counsel for the opposite side lateron did not press that ground. Against non-disclosure of three vehicles registered in the name of the dependant wife and two sons, the High Court held that it amounted to commission of a corrupt practice as per Section 123 (2) of 1951 Act. As regards non-disclosure of information as per Form 26 of the Election Rules, 1961, the High Court held that it is fundamental to the conduct of election and the solemnity thereof could not be ridiculed by offering Election Petition No. 10 of 2021 -:61:- incomplete information or suppressing material information, resulting in dis information and mis-information to the voters.
80. In the SLP filed by Karikho Kri before the Hon'ble Apex Court, it was held that there were material lapses by the returned candidate, in as much as the information regarding a Bungalow standing in the name of his wife and a vehicle owned by her were omitted to be mentioned in the nomination. It was further held that the returned candidate failed to disclose his interest/share in a partnership firm and that amounted to a very serious and major lapse.
81. The Apex Court referred to the dictum in Kisan Shankar Kathore supra where issue involved was non- disclosure of certain government dues in the nomination and the Apex Court held that, as a material lapse imparting the election of the returned candidate. The observations made by the Apex Court in the above case being of much relevance are extracted hereunder:
"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 Election Petition No. 10 of 2021 -:62:- may not suffice. The present case itself is 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 only be at a later stage and the appropriate stage would be in an election petition as in the instant case, when the election is challenged. The grounds stated in Section 36(2) are those which can be examined there and then and on that basis the Returning Officer would be in a position to reject the nomination. Likewise, where the blanks are left in an affidavit, nomination can be rejected there and then. In other cases where detailed enquiry is needed, it would depend upon the outcome thereof, in an election petition, as to whether the nomination was properly accepted or it was a case of improper acceptance. Once it is found that it was a case of improper acceptance, as there was misinformation or suppression of material information, one can state that question of rejection in such a case was only deferred to a later date. When the Court gives such a finding, which would have resulted in rejection, the effect would be same, namely, such a candidate was not entitled to contest and the election is void. Otherwise, it would be an anomalous situation that even when criminal proceedings under Section 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." (emphasis supplied) Election Petition No. 10 of 2021 -:63:-
82. The Apex Court also relied on the dictum Lok Prahari, Through its General Secretary S.N.Shulka vs Union Of India and others [2018 (4) SCC 699] wherein it was observed by the Apex Court that non-disclosure of assets and sources of income by the candidate and their associate will amount to "undue influence' as defined under Section 123(2) of the Act of 1951.
83. Rukmini Madegowda v. The State Election Commission [2022 SCC online SC 1218] was also relied on by the Apex Court where the observation made was that a false declaration with respect to the assets of the candidate, his/her spouse or dependants, would constitute a corrupt practice, irrespective of its impact on the election of the candidate as it may be presumed that a false declaration would impact the election.
84. In the case dealt with by the Apex Court, Karikho Kri was required to state, whether he had been in occupation of accommodation provided by the Government at any time during the last 10 years before the time of notification of current election and if so, he was to furnish declaration to the effect that there were no dues payable in respect of the said accommodation in relation to rent, electricity charges, water charges and Election Petition No. 10 of 2021 -:64:- telephone charges. Karikho Kri failed to disclose the fact that he had been in occupation of government accommodation during his tenure as an MLA from 2009 till 2014 but stated 'Not Applicable'. However, with regard to the declaration of no dues he mentioned '22.3.2019' and stated the dues in respect of the above referred heads, 'Nil'. After raising an objection by Nuney Tayang on the ground of non-disclosure of the above-mentioned factum, Karikho Kri filed 'non-due certificate' of 2014. In that context, the Apex Court observed as follows:
"40. Having considered the issue, we are of the firm view that every defect in the nomination cannot straightaway be termed to be of such character as to render its acceptance improper and each case would have to turn on its own individual facts, insofar as that aspect is concerned. The case law on the subject also manifests that this Court has always drawn a distinction between non-disclosure of substantial issues as opposed to insubstantial issues, which may not impact one's candidature or the result of an election. The very fact that Section 36(4) of the Act of 1951 speaks of the Returning Officer not rejecting a nomination unless he is of the opinion that the defect is of a substantial nature demonstrates that this distinction must always be kept in mind and there is no absolute mandate that every non- disclosure, irrespective of its gravity and impact, would automatically amount to a defect of substantial nature, thereby materially affecting the result of the election or amounting to 'undue influence' so as to qualify as a corrupt practice." (emphasis supplied) Election Petition No. 10 of 2021 -:65:-
85. The Apex Court observed that there were no actual outstanding dues payable by Karikho Kri to the government accommodation occupied by him earlier. Accordingly the court held that his failure to disclose the fact that he had occupied such accommodation and to file the 'no-dues certificate' in that regard alongwith his nomination form cannot be said to be a defect of any real import. Moreso he did submit the relevant documents of 2014 after Nuney Tayang raised objection before the returning officer. The Apex Court observed that there were no actual dues and the failure of Karikho Kri to disclose that he had been in occupation of a government accommodation during the period 2009-2014 cannot be treated as a defect of substantial character so as to taint his nomination and render it's acceptance improper.
86. With regard to the non-disclosure of movable properties, the Apex Court in Karikho Kri supra, held:
"44. Though it has been strenuously contended before us that the voter's 'right to know' is absolute and a candidate contesting the election must be forthright about all his particulars, we are not inclined to accept the blanket proposition that a candidate is required to lay his life out threadbare for examination by the electorate. His 'right to privacy' would still survive as regards matters which are of no concern to the voter or are irrelevant to his candidature for public office. In that respect, non-disclosure of each and Election Petition No. 10 of 2021 -:66:- every asset owned by a candidate would not amount to a defect, much less, a defect of a substantial character. It is not necessary that a candidate declare every item of movable property that he or his dependent family members owns, such as, clothing, shoes, crockery, stationery and furniture, etc., unless the same is of such value as to constitute a sizeable asset in itself or reflect upon his candidature, in terms of his lifestyle, and require to be disclosed. Every case would have to turn on its own peculiarities and there can be no hard and fast or straitjacketed rule as to when the non- disclosure of a particular movable asset by a candidate would amount to a defect of a substantial character. For example, a candidate and his family who own several high-priced watches, which would aggregate to a huge figure in terms of monetary value, would obviously have to disclose the same as they constitute an asset of high value and also reflect upon his lavish lifestyle. Suppression of the same would constitute 'undue influence' upon the voter as that relevant information about the candidate is being kept away from the voter. However, if a candidate and his family members each own a simple watch, which is not highly priced, suppression of the value of such watches may not amount to a defect at all. Each case would, therefore, have to be judged on its own facts." (emphasis supplied)
87. The Apex Court also found fault with the High Court on its failure to discuss about the violation which qualified as non- compliance with the provisions of either the Constitution or the Act of 1951 or the rules or orders framed thereunder, for the Election Petition No. 10 of 2021 -:67:- purposes of Section 100(1)(d)(iv) and as to how the same materially affect, the result of the election.
88. The Apex Court also observed that there were want of sufficient pleadings in the Election Petition. The dictum laid down by the Apex Court in that regard was :-
"48. xxx Though there are some general references to non-compliance with particular provisions of the Act of 1951 and the rules made thereunder, we do not find adequate pleadings or proof to substantiate and satisfy the requirements of Section 100(1)(d)(iv) of the Act of 1951. Therefore, it is clear that Nuney Tayang tied up the improper acceptance of Karikho Kri's nomination, relatable to Section 100(1)(d)(i) of the Act of 1951, with the non-compliance relatable to Section 100(1)(d)(iv) thereof and he did not sufficiently plead or prove a specific breach or how it materially affected the result of the election, in so far as it concerned the returned candidate, Karikho Kri. It was not open to Nuney Tayang to link up separate issues and fail to plead in detail and adduce sufficient evidence in relation to the non-compliance that would attract Section 100(1)(d)(iv) of the Act of 1951. The finding of the High Court in that regard is equally bereft of rhyme and reason and cannot be sustained.
49. As regards the failure on the part of Karikho Kri to disclose the dues of municipal/property taxes payable by him and his wife, the same cannot be held to be a non-disclosure at all, inasmuch as he did disclose the particulars of such dues in one part of his Affidavit but did not do so in another part. In any event, as Mr. Arunabh Chowdhury, learned senior Election Petition No. 10 of 2021 -:68:- counsel, fairly stated that he would not be pressing this ground, we need not labour further upon this point.
50. On the above analysis, we hold that the High Court was in error in concluding that sufficient grounds were made out under Sections 100(1)(b), 100(1)(d)(i) and 100(1)(d)(iv) of the Act of 1951 to invalidate the election of Karikho Kri and, further, in holding that non-disclosure of the three vehicles, that still remained registered in the names of his wife and son as on the date of filing of his nomination, amounted to a 'corrupt practice' under Section 123(2) of the Act of 1951. In consequence, we find no necessity to independently deal with Civil Appeal No. 4716 of 2023 filed by Nuney Tayang, in the context of denial of relief to him by the High Court, or the issues raised by Dr. Mohesh Chai in the replies filed by him. " (emphasis supplied)
89. As regards the lack of information regarding the dues relating to municipal/property tax by Karikho Kri and his wife, the Apex Court held that the same cannot be non-disclosure at all, in as much as he did not disclose the particulars of such dues in one part of his affidavit but did, in another part.
90. Accordingly, the Apex Court held in Karikho Kri supra that the High Court went erred in concluding that sufficient grounds were made out, under Sections 100(1)(b), 100(1)(d)(i) and 100(1)(d)(iv) of the Act of 1951 to invalidate the election of Karikho Kri and in holding further that non-disclosure of the three vehicles still remained registered in the names of his dependant Election Petition No. 10 of 2021 -:69:- wife and son as on the date of filing of his nomination, amount to 'corrupt practice' under Section 123(2) of the Act of 1951. Accordingly, the election of Karikho Kri as the returned candidate from 44 Tezu (ST) Assembly Constituency of the State of Arunachal Pradesh and appeal filed by Nuney Tayang was dismissed.
91. Both counsel filed argument notes with reference to the contentions raised on behalf of the parties they represented and those being of utmost relevance in the process of adjudication of the issues involved are dealt with hereunder. The reliefs sought in the Election Petition are reproduced in the argument notes filed by Sri.Manu, the learned counsel for the Election Petitioner as follows:
"i. To declare the election of R-1 declared on 2-5-2021 as null and void and to set aside the same.
ii. Declare that the result of the election has been materially affected by improper acceptance of the nomination of the 1 st respondent and the other respondents.
iii. Declare that the petitioner is the duly elected candidate."
92. The following are the grounds based on which the above reliefs are sought:
"a. Section 100(1)(d)(i) of the Act: improper acceptance of nomination and Election Petition No. 10 of 2021 -:70:- b. Section 100(1)(d)(iv): non compliance with the Constitution, Act, Rules or any orders under the Act.
c. Section 101(a) : That the petitioner received majority of valid votes."
93. Attention of this Court is drawn to columns kept blank in the affidavits filed by respondents 1 and 3 to 5 in support of the nomination paper and contended those as nugatory and therefore, liable to be rejected. He has made specific reference to paragraph No.4 of column No.5 of the statutory affidavit of respondent No.1 marked in evidence as Ext.X-1(a) to point out that it was not filled up. According to him, column No.5 of paragraph 4 in the affidavit is meant for furnishing the details of the Income Tax Returns submitted by the candidate during 5 financial years preceding the year of submission of nomination which would come within March 31st , only four rows were filled up and the last row was left blank. Similarly column No.5 of paragraph 4, where particulars of the Income Tax Returns of the the spouse and dependants are meant to be shown are also left blank. Column No.2 meant for furnishing the names of dependants is also left blank. On the basis of the dictum in Resurgence India supra, the learned counsel canvassed for treating the affidavit as nugatory and urged to treat that as a sufficient and substantial reason for rejecting the nomination. Election Petition No. 10 of 2021 -:71:-
94. The learned counsel has also stated that in the hand book issued by the Election Commission for the candidate and the returning officer and in Note 3 of the format of the affidavit in Form 26, it has been prescribed that all particulars shall be filled up and the columns shall not be left blank. It has also been prescribed that affidavits with blank particulars shall not be entertained (Resurgence India). According to him, it is crystal clear that non-filling up of all particulars render the affidavit nugatory and invalid and on it's basis the nomination is only to be rejected.
95. It was also pointed out by the learned counsel with reference to the affidavit filed by respondent No.3, marked in evidence as Ext.X-1(c) that column Nos.2 and 5 of paragraph No.4 are left blank, with reference to the affidavit filed by respondent No.4 marked in evidence as Ext.X-1(d) that attention is drawn to column Nos.3, 4, 5, 6, 7 and 8 of para No.7 and Sl.No.2, Col.No.3 of paragraph No.8 are left blank and with reference to the affidavit filed by respondent No.5, marked in evidence as Ext.X-1(e), column Nos.2 and 5 of paragraph No.4 are left blank. Accordingly, it was contended that the returning officer ought to have rejected the nominations of respondents 1 Election Petition No. 10 of 2021 -:72:- and 3 to 5 for the reasons itself. With regard to suppression of material facts as contemplated under Section 100(1)(d)(iv) of the R.P. Act, 1951, it was referred in the argument notes filed by the learned counsel that PAN of the spouse, details of the government accommodation availed while officiating as the Chairman of the Corporation, government vehicles used in the said capacity, bank account numbers and the last financial year in which income tax return was filed were also suppressed by respondent No.1 in the affidavit filed in Form 26. The learned counsel has invited the attention of this Court to the testimony of Mrs.Bindu Soman, the wife of respondent No.1 examined as RW3, to point out that during her tenure as Member of CDRF, Idukki, Income Tax Returns were filed by her during the assessment years 2002-2005 and 2008-2013. According to the learned counsel, those aspects were not mentioned in the affidavit filed by respondent No.1 and thus information relevant to be furnished was suppressed by him. With specific reference to column Nos.3 and 4, Sl.No.2 of paragraph No.4 of Ext.X-1(a) filed by respondent No.1, where it was mentioned that PAN was not allowed to the spouse and Sl.Nos.2,4,5 and 6 of the same paragraph, where it was stated 'not applicable', to contend that Election Petition No. 10 of 2021 -:73:- respondent No.1 has furnished false information in the affidavit. With specific reference to Ext.X-1(b), the affidavit filed by respondent No.2, which lacks authentication by the Notary Public and with specific reference to Ext.X-1(g), the objection filed by Sri.Sabu Thomas as agent of the Election Petitioner against Ext.X-1(a), it was contended that the printed Roman letters found in column No.5 with reference to Sl.Nos.1 to 6 are not particulars filled up, but only the part of the standard format of the affidavit in Form 26. According to the learned counsel, column Nos.4 and 5 are to be filled up by the candidate. Despite the factum that respondent No.1 had filled those, the returning officer failed to consider so. It was further contended that objections were raised by the Election Petitioner against non- filling of column No.5 of paragraph No.4, non-production of 'no- dues certificate' by respondent No.1 and non-authentication of Ext.X-1(b) filed by respondent No.2, but those have not been answered by the returning officer in Ext.X-1(h) order passed.
96. It was contended that filing of an affidavit by furnishing false information or mis-information, non-filling up of columns in the affidavit and non-furnishing of 'no-dues certificate' alongwith the affidavit or at the time of scrutiny of Election Petition No. 10 of 2021 -:74:- defects in the nomination are defects of substantial character. The learned counsel has also relied on Brijendralal Gupta, Sri Mariembam Prithviraj @ Prithviraj Singh, Kisan Shankar Kathore, Resurgence India, Association for Democratic Reforms and Others and Peoples Union for Civil Liberties and Others v. Union of India and others [(2003) 4 SCC 399] to fortify his arguments advanced as above.
97. With specific reference to the contentions raised in the written statement it was urged by the learned counsel that due to an inadvertent omission, respondent No.1 failed to state the names of the dependents in the affidavit, while adducing evidence. It was stated that the children (sons) are not dependents. According to him, the specific contention raised in the written statement filed was that 'no-dues certificate' was not produced. The returning officer as PW4 also deposed that the 'no dues certificate' was not produced by respondent No.1. But respondent No.1 as RW1 has stated during examination that 'no dues certificate' was produced by him before the returning officer and a copy of that was also produced alongwith the written statement. But the 'no dues certificate' was not produced. Election Petition No. 10 of 2021 -:75:-
98. While deposing as RW1, respondent No.1 stated that a permanent official accommodation was not allotted to him. RW2 has stated in her reply that respondent No.1 had utilised government accommodation whereas as RW1, respondent No.1 has deposed that Government guest house was used by him and the rentals were paid. Accordingly, 'no dues certificate' was filed by him. Contention taken in the written statement lastly was that Karikho Kri supra and Dasanglupul Vs. Lupalum Kri [AIR 2023 SC 5265] and Kanimozhi Karunanidhi Vs. Santhana Kumar and Others [AIR 2023 SC 2366] are not applicable to the case on hand since the facts and circumstances of those are distinct from those, in the case on hand.
99. Sri.Krishnanunni, the learned Senior Counsel has also filed an argument note on behalf of respondent No.1. It was contented that a detailed written statement was filed by respondent No.1 stating that a proper affidavit in the prescribed format has been submitted by him alongwith the nomination paper and therefore, as rightly pointed out by the returning officer, his nomination paper was not liable to be rejected. Accordingly, it was urged that the Election Petition is only liable to be dismissed. According to him, the liability of the nomination Election Petition No. 10 of 2021 -:76:- to be rejected is not at all a matter to be enquired into the case on hand, since the Election Petitioner failed to raise a plea in the Election Petition that in view of that the results of the election was materially affected. It was contended further that the improper acceptance of the nomination can form a reason under Section 100 (1)(d)(i) for setting aside the election only when the Election Petitioner pleads and proves that the said act of acceptance of nomination has materially affected the results of the Election. The learned counsel conceded that if this Court finds that the nomination paper of respondent No.1 has been improperly accepted by the returning officer the same can also form a ground for setting aside the election and to declare the latter as the elected candidate. The learned counsel has also dealt with the circumstances in which Section 33A was brought into the Statute book and it reads:-
"The Hon'ble Supreme Court of India, on 02/05/2002, passed a judgment in Civil Appeal 7178/2001 and Writ Petition (Civil) 294/2001 [reported in AIR 2002 SC 2112-pages 1 to 21 in the paper-book submitted herewith). That was a case where the writ petitioner, Association for Democratic Reforms approached the Apex Court contenting that a voter has got a right to know the entire details regarding the candidates to whom he is expected to vote. If the democratic process of election is to become fruitful, voters have to be supplied with all necessary information as regards the contesting candidates Election Petition No. 10 of 2021 -:77:- in the election. After considering the matter in detail, the Apex Court was pleased to direct the Election Commission of India to call for information on affidavit by the contesting candidates in exercise of its power under Art.324 of the Constitution of India with respect to the following aspects in relation to the candidates:
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 balances etc.) of a candidate and of his/her spouse and that of dependents.
4) Liabilities, if any, particularly whether there are any over dues of any public financial institution or Government dues.
5) The educational qualifications of the candidate."
100. According to him, pursuant to the directions issued by the Apex Court in Association for Democratic Reforms supra, Election Commission has passed an order on 28.06.2022 and directed the details to be included in the affidavit. A proforma of the affidavit to be furnished was also made part of the order. According to him, in Sub-clause '4' of paragraph 14 of the order, it has been specifically made clear that any defect, wrong or incomplete information or suppression of material information Election Petition No. 10 of 2021 -:78:- can be a ground for rejection of the nomination only if the defect is a character of substantial nature.
101. It is contended by the learned counsel that Act 43 of 1951 was amended in 2002 by the Representation of People (3rd Amendment) Act and Sections 33A and 33B were introduced. According to him, Section 33A directed the candidate to furnish information, whether "(i) he is accused of any offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the court of competent jurisdiction;
(ii) he has been convicted of an offence [other than any offence referred to in sub-section (1) or sub-section (2), or covered in sub-section (3), of section 8] and sentenced to imprisonment for one year or more."
102. According to the learned counsel, the amendment brought in as above was challenged before the Hon'ble Apex Court in Writ Petition (Civil) Nos. 490, 509 and 515 of 2002. (Reported in AIR 2003 SC 2363). The Apex Court after having dealt with the above cases found that the newly incorporated Section 33B goes against the directions issued by it earlier and found that provision as unconstitutional. Accordingly, it was struck down. Section 33A was retained in the Statute and Section 33B was taken away from it's purview. The learned counsel Election Petition No. 10 of 2021 -:79:- pointed out that pursuant to the directions contained in the above decision and in accordance with those, the Election Commission issued an order on 27.03.2003. According to him, the clause with reference to the power of the returning officer to reject the nomination paper for incorporating wrong, incomplete or incorrect information in the affidavit and for material suppression of facts in the affidavit, was omitted. The said order was also challenged before the Apex Court in Writ Petition (Civil) No.121/2008. The Hon'ble Apex Court was pleased to observe while disposing of the Writ Petition that eventhough the power of the returning officer to reject the nomination paper for submitting wrong and incorrect information is not included in the order of the Election Commission, the returning officer can reject a nomination paper with blank particulars. The learned counsel urged on the strength of Section 36(4) of the R.P Act, 1951 that, the power to reject a nomination paper is given to a returning officer and it makes it abundantly clear that he shall not reject a nomination paper on the ground of any defect which is not of a substantial character. Accordingly, it was canvassed by the learned counsel, even if it is found by the returning officer that there are defects in the nomination paper, he has to see, whether Election Petition No. 10 of 2021 -:80:- those are of substantial character and if not, the nomination paper is not liable to be rejected. The learned counsel has also contended with reference to the decisions relied on by him that it is the duty of the returning officer to check whether the information required is fully furnished at the time of filing of the affidavit with the nomination paper and if a candidate fails to fill up the blanks even after being remanded of by the returning officer, the nomination paper is fit to be rejected. The learned counsel pointed out that the power of the returning officer to reject the nomination paper has to be exercised very sparingly but the bar should not be laid so high, that justice itself is prejudiced. With reference to the grounds upon which reliefs were sought by the Election Petitioner ( paragraph Nos. 10,11,12 and 13) (grounds C to F) of the Election Petition) it was contended by the learned counsel that what was expected to be included in Sl.No.1 of column No.5, paragraph 4 of the affidavit of respondent No.1 that the column left was one meant for showing the gross income for one of the five financial years preceding the election. According to him, Respondent No.1 has shown his income in the returns filed for four preceding financial years, whereas the income shown in the income tax return for Election Petition No. 10 of 2021 -:81:- the 5th financial year whereas rows 1,2,3 and 4 are properly filled up. According to him what was expected to be furnished in row No.5 is only the gross income declared the income tax returns submitted during the five years preceding date of election and respondent No.1 has stated as submitted returns only for four years during that period while officiating as Chairman of the Corporation and was having sufficient taxable income for filing returns. According to him, he has not submitted income tax return for Financial Year 2015-2016 and that is why last row of Column No.5 of Serial No.1 was left blank. According to him, even the Election Petitioner has an allegation that respondent No.1 had filed income tax return for all the five financial years preceding the date of election.
103. It was contended with reference to the allegation in Sl.No.2 of column No.3, where it was stated by respondent No.1 with reference to the allotment of PAN to his spouse Smt.Bindu Soman as 'not alloted'. The circumstances under which such an information was happened to be incorporated in the affidavit filed were stated by respondent No.1 in his written statement. According to him, the affidavit filed alongwith the nomination was filled up by his son who is a lawyer and while being Election Petition No. 10 of 2021 -:82:- examined as RW2, he deposed to have consulted his mother over telephone and obtained information from her that PAN was not allotted in her favour.
104. According to him, during examination of Smt. Bindu Soman as RW3, she has stated that Income Tax Returns were not filed by her. According to her, she was an agent of LIC and a member of CDRF, Idukki for a short period. According to her, Income Tax was deducted at source when the commission was paid by LIC to her and similar is the case of honorarium paid to her, by CDRF, Idukki.
105. According to RW3, for the above reason, she was not aware of the PAN issued in her name. The learned counsel canvassed for a consideration of the information furnished by respondent No.1 in the affidavit filed about non-issuance of PAN to his spouse as a bonafide and innocent omission. The learned counsel contended that even otherwise, the omission as above cannot be treated as of substantial character, for want of an allegation from the Election Petitioner that respondent No.1 has suppressed the money or property held by him. According to him, the Income Tax Officer when examined as PW3 has also spoken that Smt.Bindu Soman has not submitted any Income Election Petition No. 10 of 2021 -:83:- Tax Return during the relevant period. According to him, in such a context, the blank particulars in Column 5 of Sl.No.2, cannot be treated as substantial defects.
106. The argument further raised with regard to non-furnishing of the names of the two sons of respondent No.1 in column No.2 of serial Nos.4 and 5 of the affidavit, RWs 1 and 2 have spoken during examination that neither of them is a dependent of respondent No.1. According to him, both of them are advocates by profession having independent practice and the details of the PAN cards possessed by them were also furnished in Column No.2. According to him, they have not filed any returns of income tax during the relevant financial years, the particulars of which are called for in coloumn No.5 of Serial Nos. 4 and 5 and therefore, those were left as blank. The learned counsel canvassed that the non furnishing of information in the abvoe columns cannot be treated as filing of the affidavit with blank particulars. According to him, at the more, it can be taken as a case of furnishing incomplete particulars. The learned counsel pointed out that even the Election Petitioner has no case that the sons of respondent No.1 had paid Income Tax during the relevant period. The Election Petitioner has also not proved that Election Petition No. 10 of 2021 -:84:- the children were dependents of respondent No.1 financially at the relevant time. According to him, when the defect was pointed out, explanation offered by RW2 was that the particulars happened to be furnished in the affidavit, accordingly for the reason of their residence together under a single roof. According to the learned counsel, the defect cannot be treated as of substantial character. With regard to the allegation of lack of information funished in paragraph 11 of the affidavit with regard to the amount secured by the LIC policies and the details of the vehicle, it was contended that those omissions are also of in- substantial character. With regard to the omission in paragraph 13, it was contended by the learned counsel that filing of the nomination by respondent No.1 was after his resignation from the post as the Chairman of the Corporation. According to him, he has not occupied any official residence allotted by the Government during his tenure as a Chairman. Therefore, that clause (iii) (a) of paragraph 8 of the affidavit was answered in the negative. Therefore, he was not expected to fill up clauses (b),
(c) and (d) of column No.5 and therefore mentioned as 'Not applicable'. According to him, 'no-dues certificate' was produced at the time of filing of nomination since he was not occupying an Election Petition No. 10 of 2021 -:85:- official residence then and the evidence of PW2 would make the position clear with reference to the allegation in paragraph 14 (ground No.1) that respondent No.1 did not rectify the affidavit submitted to the returning officer even after the defects crept into the affidavit sworn to firstly in English were pointed out. Those were alleged as not even rectified by respondent No.1 in the additional affidavit filed in Malayalam and evidence to prove those have not been brought in while examining the returning officer as PW4. What has been brought in during examination of PW4 was that the affidavit in Malayalam was accepted by her. Two sets of nominations submitted by respondent No.1 respectively on 18.03.2021 and 19.03.2021. It was contended by the learned counsel with reference to the above that respondent No.1 had submitted two different sets of nominations and contrary to the allegations raised by the Election Petitioner, the set of nomination alongwith Malayalam affidavit was accepted by the returning officer, that during cross examination, RW2 has denied the suggestion put to her that the second affidavit was submitted when the returning officer has pointed out the blank and improper entries in the affidavit submitted on 18.03.2021. According to the learned counsel, the evidence of RW2 is Election Petition No. 10 of 2021 -:86:- contrary to the contentions of the Election Petitioner. The learned counsel has cited various decisions of the Apex Court and canvassed for a consideration that furnishing of false information with reference to the issuance of a PAN card in favour of the wife of respondent No.1 and non-furnishing of information with reference to various aspects referred to, as insubstantial and to dismiss the Election Petition.
107. In the backdrop of the contentions raised in writing as above and the arguments advanced orally by the counsel representing the parties to the Election Petition, it is incumbent upon this Court to see whether the blank particulars in the affidavit filed by respondent No.1, the suppression of certain information and furnishing of incorrect information are of substantial nature and the election which declare respondent No.1 as elected to the Peermedu Legislative Assembly is liable to be declared as void.
108. Fifteen numbers of columns in the affidavit are contended as left blank. 5th row of column No.5 of paragraph 4 of the affidavit filed by respondent No.1 was alleged as left blank. In column No.5, the total income shown in the income tax returns filed during five financial years, as on 31 st March, 2021, Election Petition No. 10 of 2021 -:87:- preceding the filing of the nomination paper were to be furnished. Respondent No.1 has filled up four rows in column No.5 and the 5th row was left blank. It is pertinent to note that in column No.4, respondent No.1 has shown the last financial year in which he has filed income tax returns, as 2019-2020. Since respondent No.1 had resigned from the post of Chairman of the Corporation on 16-03-2021 and his resignation having been accepted by the Governor on 17-03-2021, he has not filed returns for the 5th financial year and therefore, the 5 th row of Column No.5 was kept blank. True that 'Nil' or 'Not Applicable' could have been shown in the 5 th row, but not shown. The question relevant in the context is whether the above defect is of substantial character or not and non-filling up of that entry with 'Nil' or 'Not applicable' would have any serious repercussion in the exercise of voting rights by a voter. This Court is inclined to hold it in the negative.
109. In Column No.5, all rows were left blank with reference to Sl.Nos.2 to 6. Those were left blank. Column No.4 in the affidavit with reference to Sl.Nos.1 to 6 being shown as not applicable, they are not supposed to furnish answers in the five rows of column No.5. True that 'Nil' or 'Not applicable' could Election Petition No. 10 of 2021 -:88:- have been written in those rows. The learned counsel canvassed for treating the affidavit in view of the blank particulars it carried as aforesaid, to declare it as nugatory as held by the Hon'ble Apex Court in Resurgence supra. In that case, the Hon'ble Apex Court was dealing with a case in which, columns meant for furnishing particulars regarding criminal antecedents have been kept blank and hence it was held that the blank particulars in the affidavit is sufficient to declare it as nugatory. Even under the R.P Act, a voter has the statutory right of information under section 33A of the R.P Act. Therefore, a candidate proposing to contest in an election is duty bound to furnish the information mandatory to be furnished by him under section 33A of the R.P Act and in case of his failure, the statute itself provide for the penal consequences under section 125A of the R.P Act. That was the circumstance in which, the Apex Court has held that the blank particulars in an affidavit would render it nugatory. Since the R.P Act, in sub-section (4) of section 36, provides for a discretion stating that a returning officer shall not reject a nomination paper when the defect noted in it are not of substantial character. A voter undoubtedly has the right to be informed of the criminal background of the candidate while exercising his option to select Election Petition No. 10 of 2021 -:89:- a representative of their choice in the election. In the case on hand, the reason for non-furnishing of information in column No.5 is evident from a reading of the entry filled up in column No.4 and therefore, the blank particulars referred to above cannot be said to be a substantial defect so as to have any serious impact on the exercise of voting right by a voter. This Court finds that the omissions to mention 'Nil' or 'Not applicable' in the columns referred to above would not have much serious impact in the voters' right to be informed about the candidate contesting the election.
110. The next argument advanced was that the defects in the affidavit firstly filed were pointed out to respondent No.1, but he failed to cure those and therefore those persisted in the affidavit filed secondly. No materials are available on record to convince of the defects noted by the returning officer. Therefore, this Court is not in a position to say whether those persist in the affidavit secondly filed. The returning officer cannot take a view on the incorrectness or correctness of certain matters filled up without conducting an enquiry, which is impossible at the time of scrutiny of the nomination and it's acceptance. It is pertinent to note that the 5th respondent who raised objection against the Election Petition No. 10 of 2021 -:90:- nomination and affidavit also failed to convince the returning officer with materials that 'Not applicable' mentioned in Column No.4 was a wrong entry. Therefore, the returning officer is justified in accepting the nomination paper stating the defects pointed out as insubstantial in nature.
111. It was contended that in Column No.4 of Sl.No.2 of paragraph no.4 of the affidavit, information about the PAN of the spouse of respondent No.1 was called for, but the answer furnished was, 'No PAN allotted'. The affidavit of respondent No.1 was admittedly prepared by his elder son, Mr.Sobin Soman, who was a lawyer by profession. According to him, he was not aware of the factum of possession of PAN by his mother. Respondent No.1 when examined as RW1 has also deposed about his ignorance of that factum. Both of them deposed during examination before this Court, as RW1 and RW2 respectively that, Mrs.Bindu Soman was out of station at the relevant time and the information was obtained from her over telephone. According to RW2, she told him that PAN was not issued from the Income Tax Department in her favour and based on the information furnished that, the entry was made in the affidavit accordingly. Mrs.Bindu Soman when examined as RW3 had also Election Petition No. 10 of 2021 -:91:- taken the same stand. Therefore, the filling up of the entry being based on information given by RW3, that cannot be taken as a false information willfully entered in the affidavit by RW1 or RW2.
112. Though, Mrs.Bindu Soman, during examination as RW3, admittedly stated that PAN was not issued to her, she categorically deposed that while holding the post as member of CDRF, the PAN was given at her office and tax was deducted at source from the honorarium received. According to her, tax was deducted at source also from the commission received by her from the Life Information Corporation, for which, she worked as an agent. According to her, everything was done from the office and therefore she has no definite idea about that. However, she deposed the truth regarding payment of tax. PW3, the Income Tax officer, had also deposed that returns were filed by her during the relevant period. Therefore, this Court is of the view that the information furnished by RW3 regarding issuance of PAN in her favour is not a substantial defect as far as its impact on the voting right of a voter is concerned. Therefore, in the opinion of this Court, the above though a defect, is not substantial in nature.
Election Petition No. 10 of 2021 -:92:-
113. Income Tax officer, when examined as PW3, also deposed that income tax returns were filed while holding the post as member of CDRF. The office file relating to the income tax returns filed by RW3 was also produced by her and marked in evidence as Ext.X3 to substantiate her version. Since the incorrect information about issuance of PAN was evidenced as incorporated in the affidavit of respondent No.1 by RW2, based on the information furnished by RW3, RW1 cannot be said to have furnished a wrong information in the affidavit filed alongwith the nomination paper.
114. The defect therefore is liable to be discarded as an insubstantial one. The particulars regarding possession of PAN by RW1 and filing of income tax returns by him were correctly entered in the affidavit filed [Ext.X1(a)]. Article 173 of the Constitution of India, which provides for the qualification for membership of the State Legislature being relevant in the context is extracted hereunder:
"173. Qualification for membership of the State Legislature A person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he -
(a) is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or Election Petition No. 10 of 2021 -:93:- affirmation according to the form set out for the purpose in the Third Schedule;
(b) is, in the case of a seat in the Legislative Assembly, not less than twenty-five years of age and in the case of a seat in the Legislative Council, not less than thirty years of age; and
(c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament."
Educational qualification is not prescribed thereunder for a candidate proposing to contest the election to Legislative Assembly. In the case on hand, 'SSLC' was shown by RW1 as his educational qualification. It has come out in evidence that he was a graduate in Electrical Engineering as well as a Diploma holder in Social Sciences.
115. Therefore, the information as to higher educational qualification was not furnished by him in the affidavit, which if supplied would have only been beneficial and advantageous to him. In Mairembam Prithviraj supra, the contesting candidate furnished wrong information in the affidavit that he was holding MBA at the relevant time, where as in fact, he was not holding that. The Court was also convinced that while contesting the election on an earlier occasion also, he has furnished the Election Petition No. 10 of 2021 -:94:- very same wrong information and therefore held it as a defect of a substantial character. In the case on hand, RW1 failed to state his higher educational qualification, which, if disclosed would not operate as a bar against his candidature in the election, rather it would only be an added advantage to influence a voter while exercising the voting rights. The failure to mention every educational qualification though a defect, is not of substantial character since it would in no manner affect the right of information of a voter while exercising the voting right in the election in question.
116. The argument further advanced was the non-furnishing of 'No Dues Certificate' along with the nomination. An argument was also advanced that respondent No.1 was holding an office of profit under the Government as Chairman of the Corporation at the relevant time when the nomination was filed. But, Exts.R1 and R2 marked in evidence from the side of the respondent No.1 would establish that resignation was tendered by him to the Government on 16-03-2021 and a proceeding dated 17-03- 2021 was passed by the Governor of Kerala accepting his Election Petition No. 10 of 2021 -:95:- resignation and thereby relieving him from the Chairmanship of the Corporation. From the dates mentioned in the above documents, it is clear that the respondent No.1 had not been holding an office of profit under the Government at the relevant time of filing of the nomination. Therefore, the argument that respondent No.1 was holding an office of profit at the relevant time of filing of nomination was repelled being devoid of any basis.
117. 'No Dues Certificate' was meant to be filed with regard to the permanent official accommodation and vehicle, if any, allotted to respondent No.1, during his tenure as Chairman of the Corporation. Respondent No.1 as RW1, deposed that a permanent official accommodation was not allotted to him while holding office as Chairman of the Corporation. Official vehicle was also not provided to him during that tenure. Therefore, he is not supposed to furnish 'No Dues Certificate' called for with respect to the rentals and charges for electricity, water and telephone. Even then, a certificate was produced alongwith the written statement filed in the Election Petition marked in evidence as Ext.R3 where the Managing Director of the Corporation Election Petition No. 10 of 2021 -:96:- has certified that respondent No.1 owed no dues towards the Corporation.
118. The evidence tendered by RW1 that he had not availed any permanent official accommodation and conveyance of the Government while holding the office as Chairman of the Corporation was also not controverted by the Election petitioner. Therefore, he was not supposed to furnish 'No Dues Certificate' alongwith the nomination paper and the argument advanced that the failure to furnish 'No Dues Certificate' is fatal to the election contested and won by respondent No.1 being devoid of any basis is discarded.
119. It was contended further that sons of respondent No.1 were shown as dependents, but their names were not shown in the affidavit [Ext.X1(a)], where it was sought to be furnished. True that it was an omission, but cannot be taken as intentionally or advertently made to defeat the right of information guaranteed to a voter by the Constitution of India as a citizen while exercising his voting rights. The financial dependency of the family members of respondent No.1 was the information sought to be furnished in the relevant column of the affidavit. As RW2, the elder Election Petition No. 10 of 2021 -:97:- son of respondent No.1 deposed that himself and his younger brother, Mr.Sobith Soman, were having sufficient income as lawyers, but, were residing alongwith RW1 and RW3 under a single roof. According to RW2, himself and his brother were having no separate residential buildings. Though, financial dependency was actually sought to be written in the affidavit, being dependents of RW1 for residential purpose, the relevant column in the affidavit was filled as if the sons were dependents. True that the names of his sons were not furnished by RW1. Furnishing of information accordingly was a defect in the affidavit, but not of substantial character to misguide a voter while exercising his voting rights and to treat the election with reference to respondent No.1 as void. Similarly, the non-furnishing of the account number of respondent No.1 in the bank and the make of the vehicle possessed by him are also not substantial defects, since those do no have the trait to defeat the right of information of a voter, which he is entitled to, while exercising his right to vote in an election. It is pertinent to note that the other particulars regarding the bank account maintained by RW1, the cash in deposit Election Petition No. 10 of 2021 -:98:- and the number of the vehicle owned by him were furnished in the affidavit.
120. It is noticed that apart from the above, other details called for are furnished by RW1 in the affidavit. The defects pointed out though evidenced as existing in the affidavit, those being insubstantial in character are unlikely to abridge the fundamental right of a voter to know about the candidate and to adversely affect the casting of vote by him. Section 36(4) of the R.P Act makes it abundantly clear that the returning officer shall not reject any nomination on the ground of any defect which is not of substantial character. It has also been settled by the Apex Court that the power to reject a nomination can only be exercised sparingly. Therefore, the nomination and the accompanying affidavit have been accepted by the returning officer after being convinced that the defects pointed out are not of substantial character.
121. In view of the discussions made hereinabove, the returning officer is justified in accepting the nomination and the affidavit accompanying it. For the reason itself, the election in question, as far as it declared respondent No.1, Election Petition No. 10 of 2021 -:99:- who received higher votes as elected, is not liable to be held as void. Rather, it is liable to be upheld and this Court do so.
Election petition fails for the reasons and is dismissed.
Sd/-
MARY JOSEPH JUDGE ttb Election Petition No. 10 of 2021 -:100:- APPENDIX OF EL.PET. 10/2021 PETITIONER'S ANNEXURES ANNEXURE- I TRUE COPY OF THE AFFIDAVIT DATED 19/03/2021 SUBMITTED BY THE 1ST RESPONDENT BEFORE THE RETURNING OFFICER, 092 PEERMADE LAC AND ASSISTANT CARDAMOM SETTLEMENT OFFICER, KUMILY.
ANNEXURE -I (a) TRUE ENGLISH TRANSLATION OF ANNEXURE-I
ANNEXURE- II TRUE COPY OF THE AFFIDAVIT DATED
19/03/2021 SUBMITTED BY THE 2ND
RESPONDENT BEFORE THE RETURNING OFFICER,
092 PEERMADE LAC AND ASSISTANT CARDAMOM
SETTLEMENT OFFICER, KUMILY.
ANNEXURE- II (a) TRUE ENGLISH TRANSLATION OF ANNEXURE A-
II
ANNEXURE III TRUE COPY OF THE AFFIDAVIT DATED
18/03/2021 SUBMITTED BY THE 3RD
RESPONDENT BEFORE THE RETURNING OFFICER,
092 PEERMADE LAC AND ASSISTANT CARDAMOM
SETTLEMENT OFFICER, KUMILY.
ANNEXURE- III (a) TRUE ENGLISH TRANSLATION OF ANNEXURE A-
III
ANNEXURE IV TRUE COPY OF THE AFFIDAVIT DATED
18/03/2021 SUBMITTED BY THE 4TH
RESPONDENT BEFORE THE RETURNING OFFICER,
092 PEERMADE LAC AND ASSISTANT CARDAMOM
SETTLEMENT OFFICER, KUMILY.
ANNEXURE- IV (a) TRUE ENGLISH TRANSLATION OF ANNEXURE A-
IV
ANNEXURE V TRUE COPY OF THE AFFIDAVIT DATED
19/03/2021 SUBMITTED BY THE 5TH
RESPONDENT BEFORE THE RETURNING OFFICER,
092 PEERMADE LAC AND ASSISTANT CARDAMOM
SETTLEMENT OFFICER, KUMILY.
Election Petition No. 10 of 2021
-:101:-
ANNEXURE V (a) TRUE ENGLISH TRANSLATION OF ANNEXURE-V
ANNEXURE VI TRUE COPY OF THE STATEMENTS OF OBJECTION
DATED 20/03/2021 SUBMITTED BY THE
PETITIONER'S COUNSEL BEFORE THE
RETURNING OFFICER, 092 PEERMADE LAC AND
ASSISTANT CARDAMOM SETTLEMENT OFFICER,
KUMILY.
ANNEXURE VI (a) TRUE ENGLISH TRANSALATION OF ANNEXURE-VI
ANNEXURE VII TRUE COPY OF THE REPLY/ORDER DATED
20/03/2021 ISSUED BY THE RETURNING
OFFICER, 092 PEERMADE LAC AND ASSISTANT
CARDAMOM SETTLEMENT OFFICER, KUMILY TO
THE PETITIONER
ANNEXURE VII (a) TRUE ENGLISH TRANSALATION OF ANNEXURE-
VII
ANNEXURE VIII TRUE COPY OF THE CHALAN NO.08/06/2021
DATED 16/06/2021 DATED FOR REMITTING
SECURITY DEPOSIT BY THE ELECTION
PETITIONER
ANNEXURE IX TRUE COPY OF LETTER NO.KSWC/RTI/2021-
2022 DATED 03.11.2021 ISSUED BY THE
STATE PUBLIC INFORMATION OFFICER, KERALA
STATE WAREHOUSING CORPORATION TO MR.BIJU
MODIYIL, MODIYIL HOUSE, RANNI-PERUNAD
P.O., PATHANAMTHITTA, PIN-689711
ANNEXURE IX (a) TRUE ENGLISH TRANSLATION OF ANNEXURE-IX
RESPONDENTS' EXHIBITS:
Exhibit R1 COPY OF RESIGNATION LETTER DATED
16.03.2021.
Exhibit R2 COPY OF THE PROCEEDINGS DATED 17.03.2021
OF THE GOVERNOR OF KERALA.
Exhibit R3 THE NO DUE CERTIFICATE ISSUED BY THE
MANAGING DIRECTOR, KERALA STATE
WAREHOUSING CORPORATION DATED
17.03.2021.
Exhibit R4 THE CERTIFICATE ISSUED BY THE BRANCH
MANAGER, LIC DATED 22.10.2021.
List of Witnesses LIST OF WITNESSES
PETITIONER EXHIBITS
Exhibit A-1 True copy of the affidavit dated 19-03-
2021 filed by the 1st respondent before
the Returning Officer 092 Legislative
Assembly Constituency, Peermade
Exhibit A-1(a) True English Translation of Exhibit A-1
Election Petition No. 10 of 2021
-:102:-
Exhibit A-2 True copy of the affidavit dated 19-03-
2021 filed by the 2nd respondent before
the Returning Officer, 092 Legislative
Assembly Constituency, Peermade
Exhibit A-2(a) True English Translation of Exhibit A-2
Exhibit A-3 True copy of the affidavit dated 18-03-
2021 filed by the 3rd respondent before
the Returning Officer, 092 Legislative
Assembly Constituency, Peermade
Exhibit A-3(a) True English Translation of Exhibit A-3
Exhibit A-4 True copy of the affidavit dated 18-03-
2021 filed by the 4th respondent before
the Returning Officer , 092 Legislative
Assembly Constituency, Peermade
Exhibit A-4(a) True English Translation of Exhibit A-4
Exhibit A-5 True copy of the affidavit dated 19-03-
2021 filed by the 5th respondent before
the Returning Officer , 092 Legislative
Assembly Constituency, Peermade
Exhibit A-5(a) True English Translation of Exhibit A-5
Exhibit A-6 True copy of the statements of objection
dated 20/03/2021 submitted by the
petitioners counsel before the Returning
officer, 092 Peermade LAC and Assistant
Cardamom Settlement Officer Kumily
produced along with the Election
Petition
Exhibit A-6(a) True English Translation of Exhibit A-6
Exhibit A-7 True copy of the reply/ order dated
20/03/2021 issued by the Returning
officer 092 Peermade LAC and Assistant
Cardamom Settlement Officer Kumily to
the petitioner
Exhibit A-7(a) True English Translation of Exhibit A-7
Exhibit A-8 True copy of Chalan No.08/06/2021 dated
16-06-2021 for remitting Security
deposit by me
Exhibit A-9 Original of the letter number
KSWC/RTI/2021-2022 dated 03-11-2021
Exhibit A-9(a) True English translation of Exhibit A-9