Madhya Pradesh High Court
Rasal Singh vs Dr. Govind Singh on 16 June, 2020
Equivalent citations: AIR 2020 (NOC) 933 (M.P.), AIRONLINE 2020 MP 838
Author: Anand Pathak
Bench: Anand Pathak
1 E.P.No.20/2019
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
ELECTION PETITION No.20/2019
Rasal Singh
Vs.
Dr. Govind Singh
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Shri Prakash Upadhyay and Shri Jitendra Sharma, learned counsel
for the petitioner.
Shri Sameer Kumar Shrivastava, learned counsel for the
respondent.
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Present : Hon. Mr. Justice Anand Pathak
ORDER
{Delivered on 16th day of June, 2020} Heard on I.A.No.3632/2019.
The instant application under Order VII Rule 11(a) and (d) read with Order VI Rule 16 and Section 151 of CPC has been preferred at the instance of respondent for dismissal of election petition.
2- The petitioner has preferred instant election petition, whereby he challenged the election of respondent, who has been declared as returned candidate from 11 -Lahar Assembly Constituency, Madhya Pradesh in the Assembly Election conducted on 28-11-2018. Petition is preferred under Section 100(1)(b)(d) of the Representation of People Act, 1951 (hereinafter referred to as 'the Act of 1951') seeking the relief to declare the respondent to be 2 E.P.No.20/2019 disqualified for contesting election for a period of 6 years for adopting corrupt practice with a further direction to the competent authority to reconduct the election to the seat from 11 -Lahar Constituency District Bhind Madhya Pradesh.
3- The election petitioner is a candidate of Bhartiya Janta Party whereas answering respondent is candidate of Indian National Congress.
4- The election petition has been filed mainly on two grounds;
(a) the respondent (returned candidate) concealed the information of clause 5/6 of the affidavit about his criminal antecedents whereby the private complaint bearing no. 544/2006 was pending before the Court of Additional Chief Judicial Magistrate (ACJM), Lahar district Bhind; wherein, cognizance against the accused persons including the respondent for the offence punishable under Sections 148, 323, 149, 427, 294 of IPC vide order dated 02-09-2006 had been taken but despite having knowledge, respondent did not disclose the information about the said case which amounts to undue influence as per Section 100(1)(b) of the Act of 1951.
(b) Another ground (cumulatively) of election petition was that the respondent suppressed various important informations regarding his assets and liability (alongwith his family members) as candidate, which every candidate is 3 E.P.No.20/2019 required to disclose and thus given false affidavit which amounts to undue influence as defined under Section 123(2) of the Act of 1951 and case under corrupt practice is contemplated under the said Section and election on account of use of such undue influence can be held to be void under Section 100(1)(b) of the Act of 1951. Under this ground; petitioner in para 11(a) to 11 (m) and thereafter in para 12 and 13(i) to (iii) mentioned and alleged different properties and accounts to contend that non disclosure of those properties render the election void. 5- Respondent after receiving the notice, moved an application as referred above which is the present subject matter and through this application, the respondent has raised the ground that election petitioner did not disclose cause of action as per Order VII Rule 11 (a)(d) of CPC, therefore, election petition be dismissed in limine.
6- Another relief through this application sought was in respect of striking out of pleadings under Order VI Rule 16 of CPC.
7- Learned counsel appearing for the respondent pressed the application by making submission that petitioner did not narrate the correct facts and it was the petitioner who tried to conceal the facts for pursuing this election petition on flimsy pretext. Regarding ground No.(a) in respect of Criminal Antecedents, it is the submission of respondent 4 E.P.No.20/2019 that answering respondent has not at all violated Section 33A of the Act of 1951 nor has submitted any incorrect information in the affidavit filed as per rule 4 (a) of the Conduct of Elections Rules, 1961 (hereinafter referred to as 'the Rules of 1961'). He referred Section 33A of the Act of 1951 to bring home the arguments that respondent is not accused of any offence punishable with imprisonment of 2 years or more in pending case ( in which charge has been framed by the Court of competent jurisdiction nor he has been convicted for an offence and sentenced to imprisonment for 1 year or more).
8- It is submitted that private complaint on which, election petitioner is placing reliance has already been dismissed on 30-11-2015 by JMFC, Lahar Bhind and copy of the said order is placed as Annexure R/A with the application by which the same has been dismissed under Section 204(4) of Cr.P.C. Therefore, on the date of filing of nomination there was no case pending against the respondent and petitioner deliberately suppressed the fact that the respondent has been acquitted. This fact was in the knowledge of election petitioner because on 05-01-2019 vide application bearing No.51/2019, certified copy of private complaint and its order-sheet were applied by petitioner or his agent. Certified copy of proceedings, final order etc., which was granted on the basis of that 5 E.P.No.20/2019 application dated 05-01-2019 (bearing No.51/2019) has been filed by the petitioner as Annexure P/6(A) and from perusal of the said document, it is clear that all the proceedings were taken out by election petitioner including final order dated 30-11-2015 but for obvious reason, the election petitioner did not annex the order dated 30-11-2015 by which private complaint was dismissed. Petitioner tried to project the case as if private complaint is still pending.
9- Learned counsel appearing for respondent placed and referred those documents vide Annexure R-A, R-B and R- C respectively and on the basis of those documents vehemently submitted that on the date of filing of nomination papers, there was no case pending against the respondent and therefore, the respondent rightly did not disclose details of any criminal case in his affidavit. Even otherwise as per the order-sheet annexed by the election petitioner along with Annexure P/6-A it is clear that no notice was ever served upon the respondent, therefore, the respondent did not have any knowledge about filing of complaint and no such pleading has been made regarding framing of charge in private complaint against the respondent or regarding any conviction order. Therefore, the petitioner has no cause of action to challenge the election of the respondent on the basis of alleged non 6 E.P.No.20/2019 disclosure of criminal case as referred in private complaint and since no criminal case is pending against the petitioner, therefore, filing of election petition on this ground is a futile exercise and does not bear any cause of action.
10- So far as another ground i.e. ground No.(b) is concerned, sheet-anchor of election petition is non disclosure of movable or immovable assets by the respondent in his affidavit.
In that ground, learned counsel for the petitioner submits that neither the Act of 1951 nor the Rules of 1961 provide about requirement for disclosure of assets by a candidate in the nomination form. It is only by virtue of order dated 27-03-2003 (Annexure -R-D) issued by Election Commission, candidate is required to furnish the details regarding his assets. In the said order, direction No.4 pertains to giving of information by a candidate regarding his assets, has been made effective. As such there is no rule or substantive provision in the Act of 1951 to disclose the assets along with affidavit and it is submission of learned counsel for the respondent that even if there are some errors in disclosing assets by the respondent in his affidavit, same cannot be a ground to declare the election as null and void under the purview of Section 100 of the Act of 1951.
7 E.P.No.20/201911- As submitted, in the year 2002 vide Amendment Act 72 of 2002, Section 33A was inserted in the Act of 1951. By virtue of said provision, a prospective candidate is required to furnish the details of criminal case in which charges have been framed or cognizance has been taken. However, when this section was inserted, no corresponding Section regarding disclosure of assets on affidavit was inserted. Therefore, even if proposed candidate does not disclose its property correctly, at the most it can be an election offence for which punishment has been prescribed under Section 125 A of the Act of 1951. But the same cannot be a ground to declare the election void either under Section 100 or Section 123 of the Act of 1951. It is further submitted that when in year 2002 this amendment regarding Right to Information was inserted, no corresponding amendment was made in Section 100 of the Act of 1951 that failure to disclose assets and liability in affidavit can be a ground to declare election null and void. Further, as per Section 98 of the Act of 1951, no power has been given to the High Court to punish any person filing false affidavit. Remedy lies somewhere else.
12- It is further submitted by learned counsel for the respondent that petitioner has not stated material facts as to how non disclosure of certain assets has affected the 8 E.P.No.20/2019 result of election and petitioner has not pleaded material facts that how and in what manner, result has been effected. Failure to plead essential facts is a fatal defect in the election petition and therefore, consequence of the same is dismissal of election petition. Since there will be no cause of action available with the petitioner to maintain this election petition, therefore, election petition filed by the petitioner deserves to be dismissed for want of cause of action.
13- Even otherwise on merits, the respondent submits that he has given disclosure of every property which respondent is in possession in proper manner. Right from para 11(a) to 11(m) every objection has been dealt with by the respondent in details in his application which is part of record and submitted that no objection in the said paras deserves consideration because he already disclosed such information. In para 11(a), (b), (c), (d), (f), (j) and (k) of election petition, the main allegation of election petitioner is that; the respondent has not referred the details of members having share in the HUF (Hindu Undivided Family) and extent of their holding and in response thereof, respondent referred the legal position that in Vidhan Sabha Election of 2018, no separate column regarding details of HUF existed, even then, the respondent referred the details of HUF but individual extent of holding of members in 9 E.P.No.20/2019 HUF; cannot be disclosed because there cannot be any particular share of any individual in HUF and it is not joint property or property of co-ownership in which extent of share is to be mentioned. In HUF, no specific share exists of any family member unless and until family is divided. Therefore, on this count, plea regarding HUF taken by the election petitioner, has no meaning and deserves to be rejected being frivolous and vexatious.
14- Regarding objection raised in para 11(e), the respondent disclosed the details of 4 shops in his ownership and disclosed the income received from rent and he referred the same in the affidavit filed by the respondent annexed by the petitioner in election petitioner as Annexure P/6, therefore, no cause of action arises on the basis of allegation contained in para 11(e) of the election petition. As far as para 11(g) of election petition is concerned, since no ancestral commercial property was received by the petitioner, therefore, he mentioned "NIL" in the affidavit and election petitioner has nowhere referred any property which may fall under Ancestral Commercial Property, therefore, on this count also, the allegation levelled in para 11(g) is wild and without any affidavit and it is not disclosing any cause of action.
15- Regarding para 11(h) of the election petition, it is submitted by learned counsel for the respondent that the 10 E.P.No.20/2019 respondent has furnished the details; year of purchase, year of sale deed, market value of the property etc. Without going through affidavit, election petitioner in casual manner has raised this ground whereas details have been disclosed categorically. According to counsel for the respondent, it is clear act of perjury done by election petitioner. Therefore, no cause of action arises for already disclosed details and for not disclosing the details which were not required by law to be disclosed.
16- Regarding objection contained in para 11(i) of election petition, the respondent submitted that he disclosed the details of house in the ownership of respondent's father which is also mentioned as residential address in the nomination form. In clause 7(b)(iv) of affidavit, there is no column to disclose about the house belonging to father of the candidate and since the house situated in Baishpura is not owned by petitioner, therefore, the same could not have been mentioned by the respondent in his affidavit. 17- Regarding para 11(l) of election petition is concerned, it is submitted by the petitioner that his son Amit Pratap Singh is not dependent on the respondent and there is no pleading in the election petition that Amit Pratap Singh is dependent on respondent. In the affidavit, only property of self, spouse and dependents are required to be mentioned and there is no column provided in the affidavit to 11 E.P.No.20/2019 disclose the property of other family member. Therefore, this ground is also bereft of any cause of action. 18- Regarding objection raised in para 11(m) of the election petition, through different documents, the respondent submits that survey numbers have been mentioned and one survey number i.e. survey No.351 is neither the property of respondent nor his dependent which is required to be disclosed and other property vide survey number 350 (ancestral property) and survey No.358 (self- owned property) have been referred.
19- Not only this, regarding objection contained in para 12 of election petition, it is submitted by learned counsel for the respondent that it discloses all the property and every assets and properties have been disclosed and only wild allegations have been levelled as per para 10 of the election petition because para 10 mainly deals in respect of criminal antecedents and not in respect of disclosure of property.
20- Regarding para 13(i) to (iii), it is submitted by learned counsel for the respondent that all the properties referred in para 13(i) have been disclosed and explained and if as per para 13(i) if he has not disclosed the property of his son
-Amit Pratap Singh then he is not required to disclose the property of his son who is not dependent over him because Amit Pratap Singh does not fall under the definition of 12 E.P.No.20/2019 dependent as per Section 75-A of the Act of 1951. Therefore, even if property of son Amit Pratap Singh has not been disclosed, same will not give any cause of action. 21- Regarding para 13(iii) of election petition is concerned, it is submitted by learned counsel for the respondent that he disclosed the property of his late father Mathura Singh and he referred that certain survey numbers have been given new survey numbers by the Government and some survey numbers have been converted into different survey numbers after settlement and one property as alleged to have been purchased by father of respondent from Devnarayan in 2011 but father of respondent died way back in year 1998, therefore, in year of 2011, no property could have been purchased by him. Death certificate of father attached in support of submission.
22- It is further submitted that on same set of facts, petitioner earlier filed the election petition bearing No.10/2014 challenging earlier election of respondent (Vidhan Sabha Election, 2013) raising all the grounds in respect of properties mentioned in the present election petition. The respondent in response thereof filed an application under Order VII Rule 11 of CPC raising the ground of non disclosure of cause of action and this Court vide order dated 04-09-2014, allowed the application preferred by the respondent and election petition was dismissed. Besides 13 E.P.No.20/2019 other ground, election petition does not provide any triable cause of action.
23- Therefore, according to the respondent, the instant election petition is repetition of allegations contained in earlier election petition and when the said election petition was dismissed for want of cause of action and election petitioner did not prefer any SLP and accepted the said order then this case does not have any cause of action and suffers from Res judicata. Learned counsel for the respondent seeks dismissal of election petition on this ground also. 24- Learned counsel for the respondent referred the judgment of Hon'ble Apex Court in the case of Union of India Vs. Association for Democratic Reforms and another, (2002) 5 SCC 294 (referred as ADR Case) and referred para 48 of the judgment whereby certain directions have been given to the Election Commission of India to call for information on affidavit by every candidate while filing the nomination form. He also referred the judgment rendered by Apex Court in the case of Peoples' Union of Civil Liberties vs. Union of India and another (2003) 4 SCC 399 (referred as PUCL Case) wherein Section 33(A) and Section 33(B) of the Act of 1951 was challenged and Apex Court declared Section 33 (B) to be ultra vires. It was held that if the candidate is discharged or acquitted, he is not required to disclose the said information. He further referred the 14 E.P.No.20/2019 judgment of Bombay High Court passed in the case of Satish Mahadeorao Uke Vs. Devendra Gangadhar Fadnavis, reported in 2016 (2) Mah.LJ 613 and judgment passed in the case of Narayan Gunaji Sawant Vs. Deepak Vasant Kesarkar, 2011 (2) Mah.LJ 851.
25- Learned counsel for the respondent even alleged the conduct of petitioner to the extent that he submitted an affidavit without going into the record of the case and has levelled false allegations and some facts have been suppressed by the election petitioner about the particulars of some of the properties. Knowing fully well the outcome of private complaint, election petitioner tried to project the case as if the respondent facing trial in a criminal case. He further relied upon the judgment of Hon'ble Apex Court in the case of T. Arivandandam Vs. T.V. Satyapal and Another, AIR 1977 SC 2421 and submits that frivolous law suit ought to be dismissed at the threshold. 26- On the other hand, learned counsel for the petitioner who lost election to respondent (returned candidate) matched the vehemence and submitted that in the light of the judgment rendered by Hon'ble Apex Court in the case Lok Prahari and another Vs. Union of India and others, (2018) 4 SCC 699; wherein, it has been held that suppression of information or incomplete disclosure would amount to 15 E.P.No.20/2019 undue influence and in the present case respondent did not provide information in the nomination form about pending criminal case and about immovable assets and properties, therefore, he tried to exert undue influence over the voters and constitute offence of Section 123 of the Act of 1951.
27- Learned counsel submits that explanation furnished by the respondent in his instant application and the documents filed along with it, cannot be seen at this stage because election petition is a trial and respondent has an opportunity to submit reply/written statement and therefore, plaint cannot be rejected on the basis of allegations made by defendant in his written statement. He relied upon the judgment of Hon'ble Apex Court passed in the case of Mayar (H.K.) Ltd. and others v. Owners & Parties, Vessel M.V. Fortune Express and others, (2006) 3 SCC
100. It is further submitted that petitioner must be given opportunity to prove his case and the averments made in the petition are required to be taken into consideration. He relied upon Madiraju Venkata Ramana Raju vs Peddireddigari Ramachandra Reddy, (2018) 14 SCC 1. 28- So far as the plea regarding res-judicata is concerned, it is submitted by learned counsel for the petitioner that earlier election petition was in respect of 2013 elections whereas present election petition is in relation to 2018 elections, 16 E.P.No.20/2019 therefore, new election proceeding is new cause of action and affidavit which is under challenge is different affidavit and disclosure of information is also different and therefore, when the subject matter is totally different thus, res-judicata would not apply. He relied upon the judgment of Hon'ble Apex Court in the case of Satyendra Kumar and Ors. Vs. Raj Nath Dubey and Ors., (2016) 14 SCC 49. He further submits that if there is change of legal position then res judicata cannot apply. He relied upon the judgment of Hon'ble Apex Court in the matter of Canara Bank vs. N.G. Subbaraya Setty, (2018) 16 SCC 228.
29- In short, counsel for the petitioner pressed for rejection of application and continuation of election petition as per law.
30- Heard learned counsel for the parties at length and perused the documents available on record.
31- In the election petition, allegation of petitioner is that the respondent/returned candidate has not disclosed the information about pendency of criminal case (private complaint) before JMFC, Lahar and not disclosed particulars of immovable assets and liabilities correctly. 32- The main ground raised in the application by respondent is in relation to 'Cause of Action'. It is the case of respondent that there are no material facts in the election petition which constitute a triable Cause of Action. Hon'ble 17 E.P.No.20/2019 Apex Court in the case of Hardwari Lal v. Kanwal Singh AIR 1972 SC 515 and in Azhar Hussain Vs. Rajiv Gandhi AIR 1986 SC 1253 categorically held that a suit (election petition) which does not furnish cause of action can be dismissed summarily. The mandate of Apex Court is categorical that all the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of Section 83 (1) (a) of the Act of 1951. Election petition therefore can be and must be dismissed if it suffers from any such defect. (See: Azhar Hussain Vs. Rajiv Gandhi AIR 1986 SC 1253). The Apex Court in this case considered inter play between Sections 83 and 86 of Act of 1951.
33- Not only this in the case of D. Ramachandran Vs. R.V. Janakiraman, (1999) 3 SCC 267, the Apex Court opined that in all cases of preliminary objection, the test is to see whether any of the reliefs prayed for could be granted to the appellant if the averments made in the election petition are proved to be true. For the purpose of considering a preliminary objection, the averments in the petition should be assumed to be true and the Court has to find out whether those averments disclose a cause of action or a triable issue as such. (Para 8) 18 E.P.No.20/2019
14.In (1999) 2 SCC 217 [H.D. Revanna Vs. G. Puttaswamy Gowda and others], the Apex Court opined that Section 86 does not refer to Section 83 and non- compliance with Section 83 does not lead to dismissal under Section 86. It was held that non-compliance with Section 83 may lead to dismissal of the petition if the matter falls within the scope of Order VI Rule 16 or Order VII Rule 11 CPC.
In (2009) 9 SCC 310 [Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar], the Apex Court opined that election petition can be summarily dismissed if it does not furnish the cause of action in exercise of the power under the Code of Civil Procedure. Appropriate orders in exercise of the powers under the Code can be passed if the mandatory requirements enjoined by Section 83 of the RP Act to incorporate the material facts in the election petition are not complied with (Para 50). It was further held that there is no definition of "material facts" either in the R.P. Act, nor in CPC. Thus, after taking stock of a plethora of judgments, the Apex Court opined that all facts necessary to formulate a complete cause of action should be termed as "material facts". All basic and primary facts which must be proved by a party to establish the existence of cause of action or defence are material facts. "Material facts" in other words mean the entire bundle of facts which would 19 E.P.No.20/2019 constitute a complete cause of action (Para 58)." 34- Therefore, as per Section 87 of the Act of 1951 and the mandate of Apex Court from time to time, it is clear that election petition can be dismissed at the threshold by way of application under Order VII Rule 11 of CPC if material facts lack 'Cause of Action'. Now, this Court will deal the allegations accordingly.
Regarding allegation of criminal case.
35- According to election petitioner one criminal case is pending in the Court of JMFC, Lahar against the respondent in which trial Court vide order dated 02-09-2006 took cognizance and despite having the said case, respondent suppressed this fact in affidavit which is required to be filed under form 26 in compliance of Rule 4(A) of Conduct of Election Rules, 1961. It is worth mentioning the fact that Section 33(A) of the Act of 1951 is substantive provision under which a candidate is required to disclose the details about criminal antecedents. Section 33-A reads as under:
"33A. Right to information.--(1) A candidate shall, apart from any information which he is required to furnish, under this Act or the rules made thereunder, in his nomination paper delivered under sub-section (1) or section 33, also furnish the information as to whether -
(i) he is accused of any offence punishable 20 E.P.No.20/2019 with imprisonment for two years or more in a pending case in which a charge has been framed by the court of competent jurisdiction;
(ii) he has been convicted of an offence [other than any offence referred to in sub-section (1) or sub-section (2), or covered in sub-section (3), of section 8] and sentenced to imprisonment for one year or more. (2) The candidate or his proposer, as the case may be, shall, at the time of delivering to the returning officer the nomination paper under sub-section (1) of section 33, also deliver to him an affidavit sworn by the candidate in a prescribed form verifying the information specified in sub-section (1).
(3) The returning officer shall, as soon as may be after the furnishing of information to him under sub-section (1), display the aforesaid information by affixing a copy of the affidavit, delivered under sub-section (2), at a conspicuous place at his office for the information of the electors relating to a constituency for which the nomination paper is delivered."
36- From bare perusal of provision {Section 33(A)(1) of the Act of 1951}, it is clear that a candidate is required to disclose in his affidavit that he is accused of any offence punishable with imprisonment for two years or more in a pending case in which charge has been framed by the Court of competent jurisdiction. Interestingly, petitioner 21 E.P.No.20/2019 has filed the certified copy of the proceedings of the case in which reference of criminal case No.544/2006 has been referred but apparently the said fact does not represent the correct facts because the respondent has also placed and referred certified copy of the order dated 30-11-2015 by which the said complaint has been dismissed under Section 204(4) of Cr.P.C. This fact has not been placed on record by the petitioner, whereas the case was dismissed more than 3 years back (in year 2015) from election in 2018. 37- Not only this, election petitioner applied for certified copy on 05-01-2019 in which he sought final order dated 30-11-2015 and copy of the application which is filed as Annexure R/B indicates that petitioner knew this fact very well that complaint has been finally disposed of because application was a typed proforma in which those documents have been categorically mentioned which were sought and final order dated 30-11-2015 was sought. Therefore, petitioner knew very well about the fact that private complaint bearing No.544/2006 has already been decided and got dismissed. Therefore, allegation of petitioner regarding criminal antecedent lacks credence. The respondent was not required to submit details of that private complaint which was already dismissed under Section 204(4) of Cr.P.C.
38- As per Section 33(A) (1) of the Act of 1951 a candidate 22 E.P.No.20/2019 has to submit details of criminal cases in which charge has been framed by the Court of competent jurisdiction in a case where candidate is accused of any offence punishable with imprisonment for two years or more. This is not a pending case in which such eventualities existed, therefore, the respondent was not required to submit such details. Therefore, this allegation of petitioner had no merit. When respondent was not at all required to furnish the details of that criminal case (Private Complaint No. 544/2006) as per Section 33(A) of the Act of 1951 as well as the mandate of Apex Court, thus no triable cause of action exists for the petitioner to agitate. It does not constitute 'Material Fact' as per Section 123 of the Act of 1951. Therefore, on both counts, this allegation has no triable cause of action.
Regarding allegations of immovable assets/properties. 39- Election petitioner in para 11(a) to 11(m) as well as para 12 and 13 have raised the allegations regarding non disclosure or inadequate disclosure of certain informations and particulars regarding immovable properties and assets (of respondent) furnished by the respondent. Although petitioner has nowhere stated material facts as to how non disclosure of certain assets has affected the result of election and petitioner has not pleaded material facts that how and in what manner result has been affected. It is 23 E.P.No.20/2019 consistent view of Apex Court right from Samant N. Balkrishnav. George Fernandez and others (1969) 3 SCC 238 to Azher Hussain (supra) that election petitioner has to plead specifically material facts and the prejudice caused due to non disclosure of it and manner in which prejudice has been caused. Here no such pleading exists, only reiteration of language of statutory provision has been made, which cannot be treated as sufficient pleadings and material facts.
40- Nevertheless, even on close scrutiny, if the allegations would have been substantiated on merits, election petitioner could have survived a chance but on merits also it appears that petitioner has a very tight rope to walk. In para 11(a),
(b), (c), (d), (f), (j) and (k) of election petition, the main allegation of petitioner is non reference of details of members and their share in HUF and extent of their holdings but neither the Vidhan Sabha Elections of 2018 contained any separate column regarding details of HUF (because this provision of HUF came into being w.e.f. 2019 General Elections) nor the fact that HUF does not carry extent of share of an individual and it is undivided fund, therefore, no percentage or extent of share of an individual member is required to be referred and cannot be referred. Therefore, no such allegation stands to legal scrutiny and it does not state any material fact and on this basis no triable 24 E.P.No.20/2019 cause of action exists.
Regarding objection raised in para 11 (e):
41- Regarding objection raised in para 11(e), the respondent disclosed the details of 4 shops in his ownership and disclosed the income received from rent and he referred the affidavit filed by the respondent annexed by the petitioner in election petitioner as Annexure P/6, therefore, no cause of action arises on the basis of allegation contained in para 11(e) of the election petition.
42- As far as para 11(g) of election petition is concerned in since no ancestral commercial property was received by the petitioner, therefore, mentioned "NIL" in the affidavit and election petitioner has nowhere referred any property which may fall under Ancestral Commercial Property, therefore, on this count also, the allegation levelled in para 11(g) is wild and without any affidavit and it is not disclosing any cause of action. 43- Regarding para 11(h) of the election petition, the respondent furnished the details; year of purchase, year of sale deed, market value of the property etc. Without going through affidavit, election petitioner in casual manner has raised this ground whereas details have been disclosed categorically. In fact, according to counsel for the respondent, it was a clear act of perjury done by election petitioner but that aspect is not subject matter of 25 E.P.No.20/2019 controversy in this petition.. Therefore, no cause of action arises for already disclosed details and for not disclosing the details which were not required by law to be disclosed. 44- Regarding objection contained in para 11(i) of election petition, he disclosed the details of house in the ownership of respondent's father which is also mentioned as residential address in the nomination form. In clause 7(b)
(iv) of affidavit, there is no column to disclose about the house belonging to father of the candidate and further since the house situated in Baishpura is not owned by petitioner, therefore, the same could not have been mentioned by the respondent in his affidavit.
45- Regarding para 11(l) of election petition is concerned, son of respondent -Amit Pratap Singh is not dependent on the respondent and there is no pleading in the election petition that Amit Pratap Singh is dependent on respondent. In Section 75A of Act of 1951 and affidavit, only property of self, spouse and dependents are required to be mentioned and there is no column provided in the affidavit to disclose the property of other family members. Therefore, this ground is also bereft of any cause of action. 46- Regarding objection raised in para 11(m) of the election petition, through different documents, the respondent submits that survey numbers have been mentioned and one survey number i.e. survey No.351 is neither the 26 E.P.No.20/2019 property of respondent nor his dependent which is required to be disclosed and other property vide survey number 350 (ancestral property) and survey No.358 (self- owned property) have already been referred and part of record.
47- Not only this, regarding objection contained in para 12 of election petition, it discloses all the property and every assets and properties have been disclosed and only wild allegations have been levelled as per para 10 of the election petition because para 10 mainly deals in respect of criminal antecedents and not in respect of disclosure of property.
48- Regarding para 13(i) to (iii), all the properties referred in para 13(i) have been disclosed and explained and if as per para 13(i) if he has not disclosed the property of his son
-Amit Pratap Singh then he is not required to disclose the property of his son who is not dependent over him because Amit Pratap Singh does not fall under the definition of dependent as per Section 75(A) of the Act of 1951. Therefore, even if property of son Amit Pratap Singh has not been disclosed, same will not give any cause of action. 49- Regarding para 13(iii) of election petition is concerned, respondent has disclosed the property of his late father Mathura Singh and he referred that certain survey numbers have been given new survey numbers by the Government 27 E.P.No.20/2019 and some survey numbers have been converted into different survey numbers after settlement and one property as alleged to be purchased by father of respondent from Devnarayan in 2011 whereas father of respondent already died in 1998, therefore, in year 2011, no property could have been purchased by him and his death certificate testifies this fact.
50- So far as legal position is concerned, Apex Court considered the fact that the voters have a fundamental right irrespective of any statutory right to know about antecedents of the candidate for which they are voting. Therefore, in the celebrated case of Union of India Vs. Association for Democratic Reforms (ADR case) held that jurisdiction of the Election Commission is wide enough to include all powers necessary for smooth conduct of election and the word "election" is used in a wide sense to reduce the entire process of election which consist of several stages and embraces many steps. It was a detailed judgment in which certain directions were given to the Election Commission of India in Paragraph 48 to call for information on affidavit from every candidate while filing the nomination form. Paragraph 48 is reproduced as under:
"48. The Election Commission is directed to call for information on affidavit by issuing necessary order in exercise of its power under 28 E.P.No.20/2019 Article 324 of the Constitution of India from each candidate seeking election to Parliament or a State Legislature as a necessary part of his nomination paper, furnishing therein, information on the following aspects in relation to his/her candidature:
(1) Whether the candidate is
convicted/acquitted/ discharged of any
criminal offence in the past- if any, whether he is punished with imprisonment or fine. (2) Prior to six months of filing of nomination, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the Court of law. If so, the details thereof; (3) The assets (immovable, movable, bank balance, etc.) of a candidate and of his/her spouse and that of dependents.
(4) Liabilities, if any, particularly whether there are any overdues of any public financial institution or Government dues.
(5) The educational qualifications of the candidate."
51- After the judgment in ADR case, four provisions were inserted in the Representation of People Act, 1951 vide Section 33A, 33B, 75A and 125A.
52- Validity of Section 33A and 33B of the Act of 1951 was again challenged in the case of People's Union for Civil Liberties (PUCL) Vs. Union of India and Anr., (2003) 4 29 E.P.No.20/2019 SCC 399 (referred as PUCL case) and Apex Court in the said case declared Section 33B of the Act of 1951 to be ultra vires. However, Apex Court upheld Section 33A of the Act of 1951 and further held that cases, in which the candidate is discharged or acquitted, is not required to be disclosed. It has been held by the Apex Court that right to know the candidate is a fundamental right and not a derivative fundamental right and is a separate right irrespective of the provisions of Representation of People Act. Later on, Rule 4 (A) of Conduct of Election Rule, 1961 was inserted and Form No. 26 was included in the Act of 1951, which is a format of affidavit, which a candidate is required to submit alongwith the nomination form. 53- In the case of Resurgence India Vs. Election Commission of India and Anr., (2014) 14 SCC 189, Apex Court again upheld the fundamental right of voter to know full particulars of a candidate and discuss the different facets of affidavit and particulars contained into it. Conclusions are drawn in para 29 and are reproduced as under:-
"29.What emerges from the above discussion can be summarized in the form of the following directions:
29.1.The voter has elementary right to know full particulars of a candidate who is to represent him in Parliament/Assemblies and such right to get information is universally 30 E.P.No.20/2019 recognized. Thus, it is held that right to know about the candidate is a natural right flowing from the concept of democracy and is an integral part of Article 19 (1) (a) of the Constitution.
29.2. The ultimate purpose of filing of affidavit along with the nomination paper is to effectuate the fundamental right of the citizens under Article 19 (1)(a) of the Constitution of India. The citizens are supposed to have the necessary information at the time of filing of nomination paper and for that purpose, the Returning Officer can very well compel a candidate to furnish the relevant information.
29.3. Filing of affidavit with blank particulars will render the affidavit nugatory. 29.4. It is the duty of the Returning Officer to check whether the information required is fully furnished at the time of filing of affidavit with the nomination paper since such information is very vital for giving effect to the 'right to know' of the citizens. If a candidate fails to fill the blanks even after the reminder by the Returning Officer, the nomination paper is fit to be rejected. We do comprehend that the power of Returning Officer to reject the nomination paper must be exercised very sparingly but the bar should not be laid so high that the justice itself is prejudiced.
29.5.We clarify to the extent that Para 73 of People's Union for Civil Liberties case 31 E.P.No.20/2019 (supra) will not come in the way of the Returning Officer to reject the nomination paper when the affidavit is filed with blank particulars.
29.6. The candidate must take the minimum effort to explicitly remark as 'NIL' or 'Not Applicable' or 'Not known' in the columns and not to leave the particulars blank.
29.7. Filing of affidavit with blanks will be directly hit by Section 125-A(i) of the RP Act. However, as the nomination paper itself is rejected by the Returning Officer, we find no reason why the candidate must be again penalized for the same act by prosecuting him/her."
54- Spree of election reforms continued. In Krishnamoorthy Vs. Sivakumar and Ors., (2015) 3 SCC 467, Apex Court concluded in para 94 as under:-
"94.In view of the above, we would like to sum up our conclusions:
94.1. Disclosure of criminal antecedents of a candidate, especially, pertaining to heinous or serious offence or offences relating to corruption or moral turpitude at the time of filing of nomination paper as mandated by law is a categorical imperative. 94.2.When there is non-disclosure of the offences pertaining to the areas mentioned in the preceding clause, it creates an impediment in the free exercise of electoral right.32 E.P.No.20/2019
94.3. Concealment or suppression of this nature deprives the voters to make an informed and advised choice as a consequence of which it would come within the compartment of direct or indirect interference or attempt to interfere with the free exercise of the right to vote by the electorate, on the part of the candidate. 94.4. As the candidate has the special knowledge of the pending cases where cognizance has been taken or charges have been framed and there is a non- disclosure on his part, it would amount to undue influence and, therefore, the election is to be declared null and void by the Election Tribunal under Section 100 (1)(B)of the 1951 Act. 94.5 The question whether it materially affects the election or not will not arise in a case of this nature."
55- Later on, in the case of Lokprahari Vs. Union of India and Ors., (2018) 4 SCC 699, the Apex Court reiterated the logic adopted by it in the case of Krishnamoorthy (supra)and given the opinion that non disclosure of assets and sources of income of the candidates and their associates would constitute a corrupt practice falling under heading "Undue Influence" as defined under Section 123 (2) of the Act of 1951. In short, information about the assets, liabilities and income of candidate are required to be given and this is the voters' fundamental right.
33 E.P.No.20/201956- Considering the law laid down by Apex Court from time to time and testing it over the facts of the present case, it appears that all such information as alleged by the petitioner against the respondent regarding suppression are in fact disclosed by the returned candidate (respondent), therefore, respondent followed the mandate of Apex Court in letter and spirit. When returned candidate followed the mandate of Apex Court and directions of Election Commission and disclosed all his immovable properties and assets in affidavit then how the cause of action exists for petitioner to challenge the same in election petition. It would be a futile exercise to conduct election petition all throughout especially when pleadings of the election petition do not impute returned candidate regarding any omission or violation of any statutory provision.
57- The details of properties were earlier subject matter of Election Petition No. 10/2014 and this Court vide order dated 4/9/2014 reported in the case of Rasal Singh Vs. Election Commission of India and Ors., 2015 (1) MPLJ 160, rejected the contentions of then election petitioner. Although, the ground of rejection was different so far as disclosure of immovable assets is concerned but properties as referred in the said election petition are almost the same vis-a-vis present election petition. After dismissal of the said election petition, petitioner did not move further to 34 E.P.No.20/2019 challenge the said order nor petitioner preferred to move any criminal case as per Section 125A of the Act of 1951; wherein, penalty is prescribed for filing false affidavit etc., therefore, it appears that petitioner is more interested in keeping the returned candidate entangled than to vindicate his stand on legal grounds.
58- Cumulatively, from the discussion made above, it appears that no material facts have been alleged or substantiated by the petitioner and no triable cause of action exists against the respondent. Election is Festival of Democracy and festivity of returned candidate cannot be diluted on such flimsy pretext because it may pollute democratic spirit and pious purpose for which elections are being held. Popular will of Sovereign (Read People) cannot be toppled at the drop of a hat or with wild allegations, surmises or conjectures. It should have some foundation for some corrupt practice or for non compliance of any statutory provision as referred in the Act of 1951. When facts are already mentioned in affidavit regarding immovable properties, then how Section 100 (1)(b) or Section 100 (1)
(d) (iv) of Act of 1951 are attracted as Grounds for declaring election to be void has not been explained by petitioner. Definitions of "Corrupt Practice" or "Undue Influence" as per Section 100 or Section 123 of Act of 1951 are not applied and attracted in the present case. 35 E.P.No.20/2019 59- So far as the ground of Res-judicata is concerned, from the nature of allegations contained in previous Election Petition No.10/2014 vis a vis present election petition, criminal cases mentioned in that petition were different and in that election petition question of educational qualification was also raised. Although the allegation of immovable properties/assets were same but said ground was decided on different basis. Other grounds also existed in the said case, therefore, regarding Res judicata, contention of petitioner deserves acceptance because subject matter of election petition bearing No.10/2014 was different although some of the grounds may be the same. Therefore, principle of Res judicata does not apply and therefore, the said submission of respondent that petition suffers from principle of res-judicata deserves to be rejected.
60- Here no such material facts exist to proceed against the respondent hence the application under Order VII Rule 11 of CPC is hereby allowed to the extent that it does not disclose any cause of action and prayer of respondent on the basis of Order VII Rule 11 (a) of CPC deserves to be allowed and is hereby allowed. So far as contents of application under Order VI Rule 16 of CPC is concerned it does not require consideration in the given set of facts because application is allowed on the basis of Order VII 36 E.P.No.20/2019 Rule 11 CPC, and therefore, the said contention is hereby rejected.
61- Cumulatively, after due consideration, this Court is of the considered opinion that respondent has made out his case on the basis of grounds contained in the application by way of Order VII Rule 11 (a) of CPC and petitioner could not plead material facts in election petition to proceed further. Lingering of election petition amounts to hanging of The Sword of Damocles over the respondent and he would not able to serve the people of constituency wholeheartedly for which he is elected and obliged to perform.
62- Resultantly, application (I.A.No.3632/2019) is allowed.
Consequently, the election petition is hereby dismissed. In addition, election petition is liable to be dismissed for non compliance of Section 83(1) of the Act of 1951.
Anil*/jps/- (Anand Pathak) Digitally signed by JAI PRAKASH SOLANKI Judge JAI PRAKASH DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh, SOLANKI 2.5.4.20=287738d30aabaeda9b10cecdf179cec8 65c7633f4cfb9e38ce14fcbb05b9522a, cn=JAI PRAKASH SOLANKI Date: 2020.06.16 11:39:58 -07'00'