Madhya Pradesh High Court
Aziz Khan vs Akram Hussain on 17 January, 2012
HIGH COURT OF MADHYA PRADESH : JABALPUR
Civil Revision No.368/2010
Aziz Khan, aged 50 years, son of Bafu Khan
Khalifa, Resident of Kazi Mohalla,
Begumganj Distt. Raisen ...Petitioner
vs.
(1) Akram Hussain, aged about 30 years,
son of Karamat Hussain
(2) Israil Khan, aged about 28 years,
son of Rashid
(3) Salam, aged about 50 years,
son of Ismail Khan
(4) Ismail, aged about 50 years,
son of Hussa
All residents of Ward No.1
Begumganj Distt. Raisen
(5) Returning Officer, Sub-Divisional Officer
Begumganj Distt. Raisen ...Respondents
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Shri R.B. Patel, Advocate for the petitioner.
Shri Sankalp Kochar, Advocate for the respondents.
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ORDER
(17.01.2012) This revision, under Section 26 of the Madhya Pradesh Municipalities Act, 1961 (hereinafter referred to as the 'Act'), has been preferred against rejection of the election petition on the ground that it does not disclose any cause of action. Corresponding order-dated 7.9.2010 passed in MJC No.8/10 by Third Additional Sessions Judge, Begumganj, Distt Raisen is the subject matter of challenge.
2. The petitioner, an elector of Ward No.1 of Municipal Corporation, Begumganj, called in question election of respondent no.1 to the seat of Councillor representing the Ward on the grounds specified in Section 22(a) and (d)(i) of the Act.
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Civil Revision No.368/20103. According to the petitioner, the respondent no.1 was disqualified for election as Councillor by virtue of Section 35(j) of the Act in view of the fact that he was member of a Society namely Haddi Evam Chamra Udyog Shahkari Samiti, Begumganj against which a sum of Rs.1,05,739/- payable to the Municipality, was outstanding. Moreover, nomination paper of the respondent no.1 was improperly accepted as the affidavit filed in support thereof contained incomplete information as to his criminal antecedents.
4. In the written statement, the respondent no.1 denied the allegation concerning disqualification asserting that he had remained a member of the Society only upto 25.03.2006, the day on which his resignation was duly accepted. He further pleaded that the affidavit filed in support of his nomination paper contained true and complete information disclosing his criminal antecedents.
5. On the date fixed for framing of issues, respondent no.1 moved an application, under Order VII Rule 11 of the Code of Civil Procedure, for rejection of the petition on the premise that it does not disclose a cause of action or a triable issue. As indicated already, for the reasons recorded in the order in question, the prayer was granted by the trial Court.
6. Placing reliance on Mayar (H. K.) Ltd. v. Owners and Parties, Vessel M. V. Fortune Express AIR 2006 SC 1828, learned counsel for the petitioner has contended that the petition could not be rejected on the basis of explanation furnished by the respondent no.1 in his written statement.
7. However, fact of the matter is that even from the averments made in the election petition, the ground contemplated under Section 22(a) of the Act was not made out. For this, reference may be made to clause (j) of Section 35 of the Act. It reads as under -
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Civil Revision No.368/2010"35. Disqualification of candidates. - No person shall be eligible for election or as a President or election or nomination as a Councillor if he -
(j) has not paid all taxes due by him to the Municipality at the end of the financial year immediately preceding that in which the election or nomination is held or made within thirty days of receipt of a notice of demand made in this behalf of the Chief Municipal Officer; or"
8. As per allegations, an amount of Rs.1,05,739/- payable to the Municipality was outstanding against the Society of which the respondent no.1 was a member. But, it is well settled that a member's liability to make good the debts of a Society does not arise till liquidation. In this view of the matter, the respondent no.1 had not incurred disqualification for the reason that the Society had not paid up all arrears of Municipal Taxes etc.
9. Adverting to the other ground, it may be observed that the affidavit filed by respondent no.1 in support of his nomination paper was characterized by the petitioner as incomplete inasmuch as it did not contain information as to (a) preventive action taken against him under Section 110 of the Code of Criminal Procedure (for short 'CrPC') (b) case no.43/94 and (c) the appeals preferred against convictions and the sentences in the criminal cases mentioned therein. Excerpts of Rule 24-A of the Madhya Pradesh Nagarpalika Nirvachan Niyam, 1994, which are relevant, may be reproduced thus
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"24-A.(1) Each candidate shall furnish the information relating to. - Declaration of Criminal antecedent, ......-
(i) any pending criminal case in which he is charged and any disposed criminal case in which he has been convicted.
......
(2) The nomination paper shall be rejected, if the affidavit is not enclosed".
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Civil Revision No.368/201010. A bare perusal of the record would reveal that accompaniments of the affidavit included copies of the appellate judgments setting aside the convictions and consequent sentences awarded to the respondent no.1 in the criminal cases mentioned therein as well as that of the order dropping proceedings under Section 110 of the CrPC. Nevertheless, as admitted by him, he was not able to disclose information regarding only one criminal case bearing No.43/94 as, at the relevant point of time, he was a minor.
11. The Supreme Court in Peoples Union for Civil Liberties (PUCL) v. Union of India AIR 2003 SC 2363, disapproved the instructions (issued by the Election Commission of India in pursuance of the judgment in Union of India v. Association for Democratic Reforms AIR 2002 SC 2112) to the effect that -
"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, .."
12. Accordingly, the Commission, by way of a fresh order-dated 27.03.2003, clarified that its earlier direction as to rejection of nomination paper on the ground of furnishing of wrong information or suppressing material information by a candidate is not enforceable.
13. In Ashok Jaiswal v. Sudhir 2011 (4) MPLJ 689, a co- ordinate Bench of this Court, while considering effect of Rule 24-A, has also held that furnishing of false or incorrect information would not afford a ground to challenge validity of the election of a returned candidate.
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Civil Revision No.368/201014. Further, decision of another single Bench of this Court in Mehboob Khan v. Lallu Bhai 2008 (5) MPHT 95 is of no avail to the petitioner as, in that case, nomination paper of the returned candidate was accepted even in absence of compliance with Rule 31-A of M.P. Panchayat Nirvachan Niyam, 1995, which is in pari materia with Rule 24-A (above). While holding that Rule 31-A is mandatory, the Court proceeded to consider effect of its non- compliance in the light of following observations made by the Apex Court in Pratap Singh v. Krishna Gupta AIR 1956 SC 140 -
"We do not think that is right and we deprecate this tendency towards technicality; it is the substance that counts and must take precedence over mere form. Some are vital and to the root of the matter; they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as whole and provided no prejudice ensues; and when the legislature does not itself state which is which judges must determine the matter and, exercising a nice discrimination, sort out one class from the other along broad based, commonsense lines."
15. Learned trial Judge, therefore, did not commit any error of jurisdiction in holding that there was no improper acceptance of the nomination paper in view of the fact that mandatory provision of Rule 24-A (supra) was substantially complied with.
16. For these reasons, the order under challenge does not require interference under the revisional jurisdiction.
17. In the result, the revision stands dismissed. The impugned order-dated 7.9.2010 is hereby affirmed.
(R.C. MISHRA) JUDGE 17.01.2012