Rajasthan High Court - Jaipur
Smt Beena vs Smt Sulbha Sinsinwar And Ors on 17 July, 2017
Author: Alok Sharma
Bench: Alok Sharma
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH
ORDER
(S.B. Civil Writ Petition No.1142/2017)
Smt. Beena W/o Dr. Jitendra Singh, aged about 51 years by caste Jat, R/o village Pidawali,
Panchayat Samiti and Tehsil Bayana, District Bharatpur.
--- Petitioner
Versus
1. Smt. Snehlata W/o Bheem Singh by caste Jat R/o village Pidawali, Gram Panchayat Kohra,
Panchayat Samiti and Tehsil Bayana, District Bharatpur (Raj.)
2. District Election Officer (Panchayat) and District Collector, Bharatpur.
3. Election Officer Bharatpur, Zila Pramukh Election (Panchayat) Bharatpur through District
Election Officer (Panchayat) and District Collector, Bharatpur.
--- Respondents.
(S.B. Civil Writ Petition No.1141/2017)
Smt. Beena W/o Dr. Jitendra Singh, aged about 51 years by caste Jat, R/o village Pidawali,
Panchayat Samiti and Tehsil Bayana, District Bharatpur.
--- Petitioner
Versus
1. Smt. Sulbha Sinsinwar W/o Mohan Singh by caste Jat R/o village Gudawali, Gram Panchayat
Naam, Panchayat Samiti and Tehsil Bayana, District Bharatpur (Raj.)
2. District Election Officer (Panchayat) and District Collector, Bharatpur.
3. Election Officer Bharatpur, Zila Pramukh Election (Panchayat) Bharatpur through District
Election Officer (Panchayat) and District Collector, Bharatpur.
--- Respondents.
Date of Order: July 17th, 2017.
PRESENT
HON'BLE MR. JUSTICE ALOK SHARMA
Mr. R.N. Mathur, Senior Advocate with
Mr. Ashwini Jaiman and
Mr. Ajay Chaudhary, for the petitioner.
Mr. Kamlakar Sharma, Senior Advocate with
Mrs. Alankrita Sharma, and
Mr. Madhusudan S. Rajpurohit, for the respondent.
Mr. J.M. Saxena, AAG for the State.
2
BY THE COURT:
Under challenge is the judgment dated 16-1-2017 passed by the District Judge Bharatpur (hereinafter `the trial court') allowing two election petitions filed against the petitioner-returned candidate (hereinafter the RC'); one by election petitioner Snehlata (Election Petition No.167/2016) who contested the election against the RC for the post of Member of Ward No.14 of Zila Parishad Bharatpur, under the Rajasthan Panchayati Raj Act, 1994 (hereinafter `the Act of 1994') and the other (Election Petition No.166/2016) also under the Act of 1994, filed by the election petitioner Sulbha Sinsinwar who contested the subsequent election amongst ward members against the returned candidate for the post of Zila Pramukh and lost. The trial court set aside the election of the RC both for the post of Member of Ward No.14 of Zila Parishad Bharatpur and his subsequent election as Zila Pramukh. Hence this petition.
Facts of SBCWP No.1142/2017 are being adverted to. 3 Snehlata, the election petitioner-respondent (hereinafter `the election petitioner') filed an election petition alleging that the returned candidate's (hereinafter `the RC') nomination form for contesting on the post of member of ward number 14, Zila Parishad Bharatpur (hereinafter `the Ward No.14') had been improperly and collusively accepted by the Returning Officer despite her having furnished wrong and insufficient information in respect of the criminal cases pending against her. It was also alleged that the returning officer overlooking the fact of the RC having furnished insufficient details with regard to the survey number, total area and demarcation of the immovable properties both commercial and residential belonging to her and her spouse and dependent children improperly accepted her nomination form. It was further alleged that the information supplied by the RC as warranted in form 4(d) appended to the Rajasthan Panchayati Raj (Election) Rules, 1994 (hereinafter `the Rules of 1994') as also in the affidavit filed in support thereto suffered from the same lacunae, suffered a mismatch 4 and some portion of the affidavit were even incomplete and hence the nomination form should have been rejected for not being duly filled as required by Rule 25(1) of the Rules of 1994. It was further submitted that the affidavit filed by the RC before the Returning Officer, required to be furnished in a prescribed format was not so furnished. The election petitioner's case was thus that in the circumstances, the nomination of RC ought to have been rejected in terms of Rule 25(2) of the Rules of 1994 which was not so illegally and improperly done. It was also asserted that the nomination form of the RC was also otherwise vitiated for lack of details which tantamounted to corrupt practice. The RC was also alleged to be ineligible to contest the election with reference to the eligibility prescribed therefor under the Act of 1994. It was also submitted that even otherwise the RC was not entitled to contest the election in issue for the reason that she was not an ordinary resident of village Pidawali Gram Panchayat Khohara, Panchayat Samiti and Tehsil Bayana District Bharatpur, and hence was not a lawfully registered 5 voter of ward No.14, Zila Parishad Bharatpur. Instead she was alleged to be a resident of Rohini Nagar New Delhi, her addresses for the last several years where she was stated to have in fact exercised her right to vote in the elections to the Loksabha Delhi, Delhi Assembly election, as also the Delhi Municipal Corporation. It was submitted that the election of RC as a member of Ward No.14 Pidawali District Bharatpur was thus liable to be quashed and set aside.
The RC filed reply of denial of the allegations in the election petition. The alleged improper acceptance of the nomination form as alleged or otherwise was contested. It was submitted that the nomination form submitted for the election in issue was as required by law and rightly accepted, bald and vague allegations to the contrary not withstanding. Collusion with the Returning Officer as alleged in the acceptance of the nomination form was emphatically denied. Eligibility to contest the election in issue was asserted. It was 6 submitted that all requisite information in column 4(a) of Form 4(d) in issue was furnished; details of FIRs against the RC were set out, with reference to the police station and offences alleged therein. Similarly all information in the knowledge of the returned candidate with regard to her and her spouse's movable and immovable properties furnished, as were the aggregate monies in the bank accounts of self/spouse. The children, a daughter aged 26 years and son 21 years were both major and not dependent on the RC, hence no information qua them was warranted. The car, RC's own, jewellery and mutual funds/shares in the aggregate value held by self were disclosed. It was pointed out that the RC had filed the nomination form second time over on 20-1-2015, following the notice dated 19-1-2015 at the hands of the Returning officer requiring additional information qua the criminal case/s following the first/ earlier nomination form furnished to him. It was submitted that no objection with regard to the nomination form filed on 20-1- 2015 was raised by the Returning Officer or any contesting 7 candidate including the election petitioner. The reply also took the defence that the election petition was devoid of material facts qua the allegation of improper acceptance of the nomination form and hence did not disclose a cause of action, no trial issue was made out and hence be dismissed. It was further submitted that the election petition was also liable to be dismissed as it did not even allege that the purported improper acceptance of the RC's nomination form, had materially affected the outcome of the election and hence the ingredients of Rule 80(1)(d) of the Rules of 1994 were not made out. The allegation of corrupt practice was emphatically denied inter alia for reason that no material facts were pleaded with reference thereto within the meaning of the words as defined under Rule 79 of the Rules of 1994. It was submitted that the allegation of manipulations in the election of RC as a member of ward No.14 was only desperate and unsubstantiated. It was also denied that the RC was not an ordinary resident of village Pidawali, had wrongly been registered as a voter or not entitled to contest the election thereto. It was 8 emphatically submitted that the RC was indeed an ordinary resident of village Pidawali, allegation of her purportedly being a permanent resident in Delhi were false, as was the allegation of the RC having exercised voting rights in elections at New Delhi. It was further submitted in the alternative that even otherwise neither did being a voter registered in two constituencies entail a disqualification under the Rajasthan Panchayati Raj Act, 1994 (hereinafter the `Act of 1994') nor was such dual registration by itself destructive of the eligibility of a candidate and registered as voter in a constituency to vote and contest an election. It was submitted that in any event the RC had moved an application for deletion of her name from the voter list in Rohini Nagar, New Delhi on or about 11-12-2014, where her name appeared to have been included in a mechanical exercise by the election commission despite the RC never having applied for registration as such. It was submitted that by virtue of the finality of being a registered voter in village Pidawali, ward No.14 of Zila Parmukh Bharatpur, at the time the election was held, 9 the RC was entitled to avail the consequential right to vote and contest elections based thereon.
On pleadings of the parties, the trial court framed the following 14 issues: (13 in the first instance and an additional one latter):-
1- vk;k fnukad 06-02-2015 dks ftyk ifj'kn Hkjriqj ds ftyk ifj'kn lnL; ds in dh izR;k"kh chuk flag dk uke&funsZ"ku i= fuokZpu vf/kdkjh }kjk vius v/khuLFk deZpkjhx.k ,oa izR;k"kh Jherh chuk flag ls feeydj xyr :i ls Lohdkj fd;k] tcfd izR;k"kh Jherh chuk flag us viuk uke&funsZ"ku i= esa xyr lwpuk,a vafdr dh Fkha rFkk fu/kkZfjr izk:i 4¼?k½ ¼fu;e 25 o 58 jkt- iapk;rhjkt fu;e½ esa vius vijk/kksa ls lacaf/kr lwpuk,a vafdr ugha dha\ 2- vk;k Jherh chuk flag jktLFkku iapk;rh jkt vf/kfu;e 1994 ds v/khu ftyk ifj'kn lnL; ds in dh ;ksX;rk,a ugha j[krha Fkh \ 3- vk;k izR;FkhZ Jherh chuk flag }kjk izk:i 4¼?k½ dh en la[;k 4¼d½ esa py lEifRr;ksa ;Fkk cSad dk uke] dkj dk uEcj] ekWMy] "ks;j ,oa E;qpqvy Q.M dh dEifu;ka ,oa LFkkoj vkfLr;ksa ;Fkk okf.kfT;d ,oa vkoklh; Hkwfe dh losZ{k.k la[;k] lhek,a vafdr ugha dh rFkk izk:i esa vkfJrksa dh la[;k vkSj mudh lEifRr dk fooj.k ugha fn;k \ 4- vk;k izR;FkhZ ch.kk flag us vius fo:) ntZ eqdneksa dk iw.kZ fooj.k izi= 4¼?k½ o mikcU/k&II esa nl :i;s ds xSj U;kf;d LVkEi ij fu/kkZfjr izk:i esa vafdr ugha fd;k] ftl ckcr dk;kZy; lgk;d fjVfuZax vf/kdkjh dk iapk;r pquko 2015 vfrfjDr ftyk eftLVªVs ¼"kgj½ Hkjriqj }kjk mDr iwfrZ gsrq uksfVl fn;k x;k] fdUrq bl ds ckotwn Hkh Jherh chuk flag ds }kjk mikcU/k&II ds izk:i vuqlkj lwpuk,a miyC/k ugha djkbZ xbZA bl izdkj izR;FkhZ la- 2 o 3 }kjk uke funsZ"ku i= voS/k :i ls Lohdkj fd;k x;k \ 10 5- vk;k izR;FkhZ Jherh chuk flag xzke finkoyh] xzke iapk;r [kkgjs c;kuk esa 20 o'kksZ ls ekewyh rkSj ij Hkh fuokl ugha djrhA ftyk ifj'kn lnL; ds pquko dh rkjh[k 06-02-2015 rd Hkh ;g uxj fuxe okMZ la- 50 jksfg.kh fo/kku lHkk 13 ubZ fnYyh dh ernkrk FkhA chuk flag us ubZ fnYyh esa xr fo/kkulHkk pquko yksd lHkk pquko] uxj fuxe pquko esa vius erkf/kdkj dk iz;ksx fd;k ftls Jherh chuk flag us Hkz'V vkpj.k viukrs gq, viuk uke funsZ"ku i= esa vafdr djus ls fNik;kA vr% izR;FkhZ chuk flag pquko yM+us ds v;ksX; Fkh \ 6- vk;k izR;FkhZ la- 1 Jherh fcuk flag ds f[kykQ ntZ ,Q-vkbZ- vkj- la- 204@2013 fnukad 15-08-2013 iqfyl Fkkuk cx:
ftyk t;iqj ,oa ,Q-vkbZ-vkj- la- 530@2013 fnukad 03- 10-2013 iqfyl Fkkuk tokgj uxj] Jhxaxkuxj gS tks fd izR;k"kh ds Hkz'V vkpj.k dks bafxr djrh gS ftlesa izR;FkhZ la- 1 ds lg&vfHk;qDr th-,y- pkS/kjh dks U;kf;d vfHkj{kk esa Hkstk gS ,oa izR;FkhZ la- 1 vfxze tekur ij gS\ 7- vk;k Jherh ch.kk flag }kjk fuokZpu esa izk:i ds vuqlkj vkijkf/kd izdj.kksa o lEifRr;ksa dk fooj.k ugha nsdj Hkz'V vkpj.k viuk;k x;k gS \ 8- vk;k pquko ifj.kke fnukad 06-02-2015 dks ?kksf'kr gqvk Fkk vkSj ;kfpdk fnukad 09-03-2015 dks is"k dh gSA nsjh dk dksbZ dkj.k vafdr ugha fd;k gS fygktk ;kfpdk vof/k ckgj izLrqr gksus ds dkj.k fujLr fd, tkus ;ksX; gSa\ 9- vk;k ;kfpdk nhokuh izfØ;k lafgrk ds izko/kkuksa ds vuqlkj lR;kfir ugha dh xbZ gS] fygktk fu;ekuqlkj la/kkj.kh; ugha gS\ 10- vk;k ;kfpdk ds lkFk izLrqr nLrkost iapk;rh jkt fuokZpu fu;ekoyh dh /kkjk 82 ds vuqlkj fof/k vuqdwy gLrk{kfjr ,oa lR;kfir ugha gksus ls ;kfpdk esUVsuscy ugha gS\ 11- vk;k ;kfpuh us viuh ;kfpdk esa lkjHkwr rF;ksa dk [kqyklk ugha fd;k gS rFkk ;g Hkh vafdr ugha fd;k gS fd bl lc ds mijkUr Hkh pquko ifj.kke lkjHkwr :i ls izHkkfor gqvk gSA mijksDr ds vHkko esa ;kfpdk [kkfjt fd;s tkus ;ksX; gS\ 12- vk;k ;kfpuh dks dksbZ Vªk,cy dkWt vkWQ ,D"ku mRiUu ugha gksrk gS\ 13- vuqrks'k \ 7- izLrqr ekeys esa fnukad 20-04-2016 dks fuEu vfrfjDr fook|d fojfpr fd;k x;k %& 1- vk;k ;kfpuh us ftyk ifj'kn Hkjriqj ds fuokZpu {ks= la[;k 14 ls v;kfpuh la[;k 1 ds fuokZpu ds fo:) ;g ;kfpdk la"kks/ku ;kfpdk ds Lohdkj fd, tkus ds i"pkr~ fnukad 09-
02-2016 dks izLrqr dh gqbZ ekuh tkosxh vkSj bl dkj.k ;g ;kfpdk vof/k ikj gksus ds dkj.k la/kkj.kh; ugha gS \ 11 The election petitioner relied upon five witnesses including herself and exhibited 75 documents (Exhibit 1-75). The RC produced three witnesses in defence including herself and relied upon 21 documents. (Exhibit A1-A21) The trial court on evidence before it proceeded to decide issue No.1, 3, 4, 6, and 7 in favour of the election petitioner holding that the RC's nomination form had been improperly accepted by the returning officer as she had not made a full disclosure and suppressed her and spouse's immovable property and bank accounts, and a car registered with the transport department New Delhi in her husband's name on the date of submission of the nomination form. The RC was also found wanting in her failure to disclosure the assets of her children in the nomination form and form 4(d) relatable to Rule 25 of the Rules of 1994. A similar finding to the RC's detriment was arrived at by the trial court with regard to certain bank 12 accounts in the name of the RC and her husband Dr. Jitendra Singh. According to trial court these non disclosure/s entailed improper acceptance of her nomination form and also tantamounted to corrupt practice vitiating the RC's election and warranting it being set aside.
In respect of issue No.2 the trial court held that the RC was not eligible to contest the election on the post of member of Ward No.14, Zila Parishad Bharatpur. Issue No.5 relating to the RC not residing in village Pidawali but in Rohini Nagar, New Delhi was also decided against her and in favour of the election petitioner.
Issues No.8,9,10,11 and 12 as also the additional issue were similarly decided in favour of the election petitioner and against the RC and all objection to the maintainability of the election petition including on the ground of not pleading material facts to support the allegation with regard to the purported improper acceptance of 13 the RC's nomination form were dismissed. The election petition was accordingly allowed and the election of the RC as member of Ward No.14 Zila Parishad Bharatpur set aside.
Hence this petition.
1. Material facts:
Counsel for the RC has submitted that the trial court misdirected itself in entertaining the election petition on the ground of alleged improper acceptance of her nomination form for purported non disclosure of assets no averment of material facts in regard thereto and the cause of action itself being resultantly absent.
He submitted that para No.2 and 3 of election petition reveal that the only allegation for the purported improper acceptance of the RC's nomination form was that the RC did not disclose the survey number, demarcation and boundaries of the immovable assets set out in the Para 4(a) of form 4(d) filed with the nomination form. No allegations were at all leveled in these paras or otherwise elsewhere 14 in the election petition with regard to the RC having suppressed disclosure of any specific immovable property or other assets standing to her name, and that of her spouse or dependent children.
There was not even a whisper of property or assets allegedly suppressed in the election petition. It was submitted that in the reply to the election petition a specific objection with regard to the election petition not pleading material facts in support of the allegation vis-a-vis improper acceptance of the nomination form was raised. This after the RC's application under Order 7 rule 11 CPC was dismissed by the trial court vide order dated 5-3-2016, as this court in SBCWP No.4355/2016, thereagainst while permitting withdrawal of the petition under its order dated 5-4-2016 granted liberty to set up the said defence in reply to the election petition. An issue was then framed as to the maintainability of the election petition despite not pleading material facts to support the allegation or ground on which it was based. The said issue has been casually sidestepped and not addressed as required in law under the 15 impugned judgment dated 16-1-2017.
Counsel referred to the judgment of the Apex Court in the case of Udhav Singh v. Madhav Rao Scindia [(1977)1 SCC 511] wherein the Court held that the election petitioner is under an obligation to plead and prove all primary/ elemental facts supporting the allegation/s made and ground/s agitated for setting aside the result of an election. Counsel submitted that the impugned judgment is therefore vitiated as the trial court should have dismissed the election petition for not pleading material facts and hence lacking any cause of action for agitating the ground of improper acceptance of the RC's nomination form.
2. Evidence beyond pleadings:
Counsel submitted that the aforesaid misdirection by the trial court in not dismissing the election petition despite non pleading of material facts was compounded by it allowing the election petitioner 16 to lead evidence at variance with her pleadings. Counsel submitted that the Apex Court in the case of Commissioner of Income Tax Madras Vs. Sundaram Spinnings Mills [(2010)1 SCC 466] has reiterated that no evidence beyond pleadings can be permitted to be adduced. Reliance was also placed on the judgment of the Apex Court in the case of Ananga Uday Singh Deo Vs. Ranga Nath Mishra [(2002)1 SCC 499] wherein it held that where there was no specific pleading at all except for some vague assertion of a ground with regard to an allegation of corrupt practice regarding bribery at an election, evidence with regard to corrupt practice could not be permitted to be laid during trial and where it was so allowed in ignorance of the principle, such evidence had to be held inadmissible. Counsel emphasized the observation of the Apex Court in the aforesaid case where it was observed that the "trial court must take care to see that irrelevant, impermissible and inadmissible evidence is not brought on record".17
3. Corrupt Practice:
Counsel further submitted that the impugned judgment holding the RC to have indulged in corrupt practice in the election to the post of member of Ward No.14 is wholly perverse. No part of the evidence on record made out such a case within Rule 79 of the Rules of 1994.
4. Ordinarily resident:
Counsel submitted that the trial court again misdirected itself in also setting aside the election of the RC on the ground of her not being ordinarily resident in village Pidawali. It was submitted that the requirement of "ordinarily resident" is only a condition for registration as a voter in the electoral rolls under the Act of 1994 and where a person is so registered it attains finality subject to the separate mechanism provided to challenge the registration of a voter commencing Rule 11 through Rule 21 of the Rules of 1994. No such proceedings were ever taken by the election petitioner or another 18 against the RC's registration as a voter in village Pidawali falling within ward No.14 Zila Parishad Bharatpur. The question of registration of a voter cannot be agitated in an election petition.
Counsel referred to the judgments of the Apex Court in the case of Nripendra Vs. Jai Ram Verma [AIR 1977 SC 1992] and Shyamdeo Pd. Singh Vs. Nawal Kishore Yadav [AIR 2000 SC 3000] in support of his contention.
5. Kisan Shankar Kathore:
Counsel further submitted that the trial court has misdirected itself in founding the impugned judgment primarily on the opinion of the Apex Court in the case of Kisan Shankar Kathore Vs. Arun Dattatray Sawant [(2014)14 SCC 162] despite it being rendered in a context of a wholly distinct statute and facts of that case. The difference from the instant case, material in nature, was that Kisan Shankar Kathore (supra) was rendered in the context of the provisions of the Representation of People Act, 1951, (hereinafter 19 Act of 1951) more particularly Section 33A read with 33(1) which set out a statutory mandate of the Electors' right to information, absent from the Act of 1994 and the Rules of 1994. No statutory mandate such as in Section 33-A of the Act of 1951 obtains under the Act of 1994 or the Election Rules of 1994. Counsel emphatically submitted that even otherwise in the case of Kisan Shankar Kathore (supra) there was an admission by the returned candidate, on material facts pleaded in the election petition and duly proved, that the assets of her spouse i.e. a motor vehicle and a bungalow had not been disclosed in the nomination form. Conversely in the instant case there were no pleadings of material facts in support of the allegation of improper acceptance of the RC's nomination form.
There was thus no starting front for the trial. Further even the alleged assets not disclosed by the RC were first set out at the stage of evidence in her inadmissible evidence beyond her pleadings by the election petitioner. The RC had adequately explained the alleged discrepancies inter alia for reason of not having knowledge of the 20 agricultural land in her name in khasra No.716 and 718 in chak No.1 Tehsil Baharatpur as it was apparently held Benami by RC's father-in-law who was in possession and control thereof with no iota of benefit therefrom to the RC and her spouse, Jitendra Singh. Signatures of the RC on the sale deed and her photo thereon mandated by law were absent. No part of consideration for the purchase was paid by her or her spouse--all proved from her defence evidence. The SUV Hundai Terracan DL-2-FDD-0002 albeit continuing to be registered in the name of the RC's husband had been sold and delivered to NAW-2 Sukhvinder Singh as admitted by him. Exhibit A-21 was the delivery note dated 10-11-2014. A completed sale of the aforesaid vehicle in terms of the Sale of Goods Act, 1930 was unjustly negated to the RC's detriment despite admission of the vendee. The vendor's registered ownership of the vehicle, despite its valid sale and delivery to the vendee, in the record of the Transport Department had no bearing on the rights to the vehicle in issue albeit it may be relevant, given circumstances in 21 which a case may arise in future, for the purpose of the liabilities under the Motor Vehicles Act, 1988--and only if till then the registration was not transferred to the vendee.
6. State Election Commission:
Counsel submitted that the State Election Commission as the Constitutional body for conducting election in the State inter alia for ward member/ sarpanch/ pradhan/ zila pramukh/ issued guidelines stating that while details relating to conviction in criminal cases, information relating to FIR and number of children were necessarily to be provided and considered by the Returning Officer at the time of scrutiny of nomination forms, details of assets of candidate, spouse, dependent children were not to be similarly treated as mandatory while the nomination forms were scrutinized by the Returning Officer. This for reason of such details of assets having no relation to the eligibility of candidates under the Act and Rules of 1994 to contest the election in issue. Counsel submitted that in terms 22 of the provisions and scheme of the Act of 1994 as also the election Rules of 1994 a nomination form for election to the post of a ward member cannot be rejected on the ground of incomplete information by the candidate as to her/ spouse's and dependent children's assets.
As such incomplete details of assets, assuming without admitting the returned candidate had infracted the purported requirement, cannot be termed to be of a nature affecting the issue of her eligibility and warrant rejection of her nomination form or render its acceptance improper. Counsel pointed out that in this view of the matter no objection under Rule 27 of the Rules of 1994 was in fact raised by anyone at the time of scrutiny of the nomination form submitted by the RC. Counsel for the returned candidate submitted that valuation of land in khasra No.737 and 738 situated in Shrinagar district Bharatpur was given in her nomination form with reference to purchase price thereof and not valuation current as per the DLC rate. That cannot also be construed as a non compliance of a substantial character warranting rejection of the RC's nomination 23 form as ownership was poshly declared. It was submitted that the Apex Court in para 24 of the Kisan Shankar Kathore (supra) has observed that in respect of requirement of setting out requisite details in nomination forms, substantial compliance suffices.
Regarding land in khasra No.716 and 718 situate at Chak No.1 admeasuring 4 bighas odd counsel submitted that the said land was at no point of time purchased either by the RC or her spouse but appears to have been purchased by the father in law of the RC from his own funds. No amount for the purchase amount was paid by the RC or her spouse. Even the photograph and signature or RC on the sale deed are missing. The property was never in possession of the RC or her spouse, but admittedly in the hands of Padam Singh, father in law of RC to his own benefit. Consequently the RC was not the actual owner of the agricultural land in issue and in fact the said property, not in her knowledge till evidence thereto was laid in court by the witness of the election petitioner (even though no pleading in 24 regard thereto was part of the election petition) was Padam Singh's benami holding.
With regard to land in khasra No.627/1 situate at village Pidawali Tehsil Bayana in the name of RC's spouse, Dr. Jitendra Singh, 7 bigha was disclosed in the nomination form instead of 8 bigha. Substantial compliance was thus made, no prejudice has been caused to any and the will of the people reflected in the election result cannot be casually negated on ground of this minor deviation more so when no statutory foundation obtains. Neither the Act of 1994 nor Rules of 1994 provide that incomplete details of assets by a candidate would render a candidate's nomination form liable to be rejected. If the legislature intended this to be the law a la Section 33A of the Act of 1951, it could have so provided. It was submitted that the right to contest an election is neither a fundamental nor a common law right. It is a statutory right and an election be put to challenge only on grounds provided in the concerned statute not by 25 resort to analogies drawn from other statutes or judgments of the court rendered thereon.
Counsel further submitted that neither the nomination form required disclosure of bank name, and account numbers but only amounts held in the banks by the candidate, spouse and dependent children. That was done by the RC and the aggregate amounts in the banks held by her, and her spouse disclosed. No evidence on record falsified the said aggregate amounts. Both the RC's children, a daughter 26 years and son 21 years were major at the time of the election and that was not seriously contested. No information qua them was required to be furnished.
Counsel submitted that consequently one way or the other, the alleged non disclosure of "complete" movable and immovable assets of the RC and her spouse in the nomination form and form IV(d) annexed thereto, where disclosure of immovable property over 28 26 crores and about 35 laks movable property was evidently made, could not have entailed rejection by the Returning Officer.
Contrarily the nomination form compliant and in any event substantially compliant with Rule 25 of the Rules of 1994 and guidelines of the State Election Commission was rightly accepted.
Counsel submitted that the words "duly filled" in Rule 25 of the Rules of 1994 have to be contextually and reasonably construed, and if construed at large by seeking a mathematical disclosure and by extrapolation of law emanating from specific legislation in other unrelated election statutes, the candidates at the elections under the Panchayat Act, 1994 would be put to ex post facto tests to their grave detriment and negation of the will of the people expressed in the election result. That law does not and cannot permit. Counsel submitted that the impugned judgment be therefor set aside, suffers as it does from perversity, non application of mind, excess of jurisdiction and complete misdirection.
Per contra, senior counsel appearing with Mrs. Alankrita 27 Sharma and Mr. M.S. Rajpurohit on behalf of the election petitioner has supported the impugned judgment. He submitted that RC's nomination form was improperly accepted by the Returning Officer despite non disclosure in full the details of movable and immovable assets as warranted under Rule 25(1) of the Election Rules of 1994 as also for the reason that the RC was not ordinarily a resident of village Pidawali as required under 18 (2)(b) of the Act of 1994 and was thus wrongly registered as a voter in ward No.14 in the first instance. This has been founded on overwhelming evidence before the trial court whereon she was found to be a permanent resident of Rohini Nagar, New Delhi on which address she was issued Aadhar Card and ID card by the Election Commission of India which were exhibited and proved before the trial court. The findings on this count do not warrant interference, submitted senior counsel. It was submitted that the trial court also had ample evidence including the RC's admissions before it to come to the conclusion that she had not fully disclosed agricultural lands in her and her spouse's khatedari, 28 their bank accounts and a SUV (Hundai Terracan DL-2-FDD-0002) standing to the name of her husband Dr.Jitendra Singh. Therefore the acceptance of RC's nomination form by the returning officer was improper. Senior counsel recounted that the RC did not disclose the details of agricultural land in khasra No.736 and 739 (Ex.22) situated at village Shrinagar admeasuring 0.1900 hectare standing her name and similarly agricultural land in khasra No.716 and 718 situated in Chak no.1 Tehsil Bharatpur admeasuring 4.14 bigha (Ex.23). He submitted that the RC also did not disclose agricultural land khasra No.627/1 admeasuring 1.25 bigha situated in village Pidawali Tehsil Bayana District Bharatpur in the khatedari of her husband Dr.Jitendra Singh. Further the trial court has rightly found, Senior Counsel submitted that a SUV Hundai Terracan DL-2-FDD-
0002 was registered in the name of Jitendra Singh RC's husband as established from Ex.28, yet was not disclosed by the RC in form 4(d) and in the affidavit in support thereof. Senior Counsel submitted that the trial court has also rightly found from the evidence that the RC 29 did not disclose her connection with RIET College Bhankrota Jaipur and Rajasthan Dental College Bhankrota, Jaipur run by the Chandrawati Education Society of which RC's husband was Chairman and chief trustee and the RC a trustee, even though this fact was admitted by her in her cross examination before the trial court. Senior counsel pointed out that the facts relating to the RC and her spouse's partnership M/s.Chandrawati Hospitality and Tourism were also not disclosed though she and her husband Jitendra Singh each had 40% shareholding therein. The bank account in PNB Johri Bazar Branch 3553002100036811 with a balance of Rs.1,24,561/- (Ex.32); 3553002100036352 with a balance of Rs.1,87,15,360/- (Ex.33) and 3553001C00000040 with a balance of Rs.4,99,99,725/- (Ex.34) were similarly not disclosed in the movable assets detailed in the information supplied in form 4(d) or the affidavit filed before the Returning Officer. He further submitted that the The detail of bank account in the name of PNB Johri Bazar 3553000100204744 was not disclosed nor was the 30 amount therein disclosed. So too with regard to bank accounts 20013461027; 50100055474908 and 5010073554119 with SBI branch Bhankrota Jaipur in the name of RC, which were not disclosed. Further the details of bank account in the name of RC's husband Jitendra Singh being No.20013461345 with SBI Branch Bhankrota, Jaipur; 08762011002665 and 8762010006060 with OBC New Delhi LU block Pritampura and 427502010095069 Union Bank of India, MI Road Jaipur were not disclosed. Senior counsel further submitted that the acceptance of the RC's nomination form was also vitiated for the reason that the value of agricultural land in khasra No.737, 738, 738/1789 and 740/1790 situated in village Shrinagar District Bharatpur admeasuring 10,019 sq. Meter was shown at the time of the nomination only at Rs.1 crore whereas the market value of the land (DLC rate) at the time was about Rs.29.60 crore @ DLC of Rs.2750 per sq. ft. as established by Ex.35--the letter of sub Registrar on the issue which was not disputed. And neither was disclosed the loan obtained by 31 Chandrawati Hospitality and Tourism from financial institutions. It was submitted that the above non disclosures/ suppression of information entailed breach of the electorate's right to information which the Apex Court in the case of Kisan Singh Kathore (supra) has held related to the fundamental right under Article 19 of the Constitution of India. It was submitted that no plausible explanation was brought forth by the RC to displace the aforesaid evidence with regard to incomplete disclosure of movable and immovable assets of the RC, her spouse and dependent children in the nomination form.
It was submitted that even otherwise an inquiry into suppression of assets and incomplete information of the assets disclosed by the RC in her nomination form was conducted by the Assistant Returning Officer and the report (Ann.R/11) duly exhibited and proved. That report established that the RC did not furnish complete information as to her assets in her nomination form. Two columns in the form 4(d) relating to non agricultural land and other 32 immovable properties of the RC were left vacant. It was submitted that the aforesaid statutory form being integral to the nomination process having been left incomplete, the nomination form itself was not "duly filled" as warranted under Rule 25(1) of the Rules of 1994 and therefore liable to be rejected as mandated by Rule 25(2) of the aforesaid Rules. Mr. Kamlakar Sharma relied upon the judgment of the Apex Court in the case of Balwan Singh Vs. Lakshmi Nrain [AIR 1960 SC 770], Virendra Nath Gautam Vs. Satpal Singh [(2007)3 SCC 617] and Kishore Shanker Kathore Vs. Arun Dattatray [(2014)14 SCC 162]. It was submitted that the District Election Officer on appropriate enquiry so found and directed the Assistant Returning Officer to file a complaint against the RC before the appropriate court for offences under Sections 181, 191/ 193 IPC, and cognizance thereon has been taken against the RC by the Additional Chief Judicial Magistrate No.2 Bharatpur on 25-10- 2016.33
Senior counsel submitted that in the overwhelming evidence of the RC's suppression/ non disclosure in full of her and her spouse's assets, no perversity can be attributed to the findings of the trial court and in the circumstances the acceptance of the RC's nomination form by the Returning Officer was improper.
Consequently her election as member of Ward No.14 was liable to be set aside as has rightly been by the impugned judgment. The findings of the trial court based on appreciation of evidence on the issue of improper acceptance of her nomination form do not warrant any interference at the hands of this court under Articles 226 and 227 of the Constitution of India. The finding of the trial court on the aforesaid count therefore does not warrant any interference.
Senior counsel further submitted that the RC cannot be allowed arguments on the ground of the election petition not pleadings material facts, not supplying a cause of action and hence 34 being liable to be dismissed. He submitted that no such ground has been set out in writ petition albeit it was indeed a specific defence before the trial court which has been negated. In alternative senior counsel submitted that in any event the election petition pleaded adequate material facts relevant to the improper acceptance of the RC's nomination form. Averments in the petition that the RC had concealed details of her and her spouse's movable and immovable properties, bank account sufficed the requirement of pleading of material facts in support of the ground improper acceptance of her nomination form. Compendious evidence thereafter was laid to prove the aforesaid allegations. It was submitted that details of the assets not disclosed in the election petition relating to material particulars and not material facts. These details have been supplied in the evidence before the trial court. Counsel relied upon the judgment of the Apex Court in the case of Virendra Nath Gautam Vs. Satpal Singh [(2007)3 SCC 617], as also Harkirat Singh Vs. Amrinder Singh [(2005)13 SCC 511] to submit that failing to plead 35 material particulars cannot entail dismissal of a suit.
The second alternative argument advanced by senior counsel was that even otherwise if a plea is not specifically taken in a plaint, it can be gathered by implication and where parties aware of the implied plea lead evidence in that regard, lack of specific pleadings cannot be subsequently agitated to impugn the judgment. Senior counsel submitted that in the instant case the RC was fully aware of the objection regarding non disclosure of details of movable and immovable properties, and therefor brought in defence evidence in regard thereto. During this exercise she exhibited various documents which showed suppression of requisite information qua her own and her spouse's movable (bank accounts, car) and immovable assets (agricultural lands, under valuation too). It was submitted that therefore justice has been done by the impugned judgment which warrants no interference in this petition. 36
Senior counsel then placed reliance on the judgment of the apex court in the case of Rupadhar Pujari Vs. Gangadhar Bhatra [(2004)7 SCC 654] and submitted that the Court held that as panchayat elections are part of the gram swaraj system, procedural laws relating to an election petition cannot be allowed to be rigidly interpreted. He submitted that in this view of the matter subsequent to the trial court having threadbare considered the evidence before it as to the non disclosure of movable and immovable assets by the RC, technicalities of procedure such as non pleading of material facts be eschewed as equity demands that the RC having knowingly suppressed the requisite information of assets in her nomination form does not deserve to continue to hold public office.
Relying on the judgment of the Apex Court in the case of Kisan Shankar Kathore (supra), Senior counsel submitted that suppression of assets (movable and immovable) belonging to the candidate/ spouse/ dependent children and failure to make full disclosure 37 thereof entails the nomination form being incomplete and if yet improperly accepted, in the setting aside of the election of such candidate on it being put to challenge. He submitted that in Kisan Shankar Kathore (supra) the election of the Returned Candidate to the legislative assembly was set aside for non-disclosure/ suppression of a vehicle, and bungalow owned by her spouse as also for reason of the non-disclosure of the returned candidate's share in property of a partnership firm. It was submitted that the ratio of the said case applies on all fours to the instant case where the RC in her nomination form had evidently concealed multiple information relating to her, her spouse's vehicle, bank accounts of herself and spouse, as also agricultural land of self and spouse understated value of immovable property disclosed and their share in the partnership firm Chandrawati Education Society. The allegations of the election petitioner having been proved from the evidence on record and in fact in part admitted by the RC in her cross examination, her election as member of ward No.14 was rightly set aside by the trial 38 court.
Senior counsel submitted that even otherwise the nomination form of the RC deserved to be rejected on the plain language of Rule 25 (1) of the Election rules 1994 which provides that the nomination as also form 4 (d) appended to the Rules of 1994, as amended under notification dated 21-11-2009 by a candidate seeking election should be "duly filled". And Rule 25(2) of the Rules of 1994 provides that if the nomination form is not filled in (duly) as provided in Rule 25(1) it shall be rejected. It was submitted that two columns in form 4(d) appended to the Election Rules 1994 relating to non agricultural land and other immovable properties were left vacant. Incomplete information as to all assets of the candidate seeking election, and his/ her spouse, as in the instant case cannot be considered as "duly filling" of the nomination form. In the circumstances the acceptance of the RC's nomination form was improper in terms of Rule 80 (1)(d) of the election Rules of 1994. 39 And the nomination form was thus liable to be rejected by the Returning Officer. The RC having escaped a proper scrutiny of her nomination form by the Returning Officer for reason of the limited enquiry within the paucity of time before him, the trial Court on a challenge made in the election petition has considered the matter threadbare and found the nomination form deserving of rejection and the election based thereon set aside. He submitted that reliance by the RC on the guidelines issued by the State Election Commissioner are of no avail as they are in the cross-hair of Rule 25 of the Election Rules 1994 and the judgment of the Apex Court in Kisan Shankar Kathore (supra). It was submitted that in this view of the matter the RC has not been able to make out a case for interference by this court in this petition under Article 227 of the Constitution of India and the petition therefore be dismissed.
Heard. Perused the record before the trial court. Considered. The successful challenge to the election of the RC as member of ward No.14 Zila Parishad Bharatpur as reflected in the impugned 40 judgment is first being addressed.
The statutory foundation for challenging the election of a ward member of Zila Parishad is as under:
Section 43 of the Act of 1994 reads as under:-
Section 43. Determination of dispute as to elections.- (1) An election under this Act or the rules made thereunder may be called in question by any candidate at such election by presenting in the prescribed manner to the District Judge having jurisdiction, a petition in this behalf on the prescribed grounds and within the prescribed period :
Provided that an election petition presented as aforesaid may, for the reasons to be recorded in writing, be transferred by the District Judge for hearing and disposal to a Civil Judge or Additional Civil Judge (Senior Division) subordinate to him.
(2) A petition presented under Sub-sec. (1) shall be heard and disposed of in the prescribed manner and the decision of the Judge thereon shall be final.
Rules 25, 27, 58, 79 and of the Rules of 1994 also relevant to address the grounds agitated in writ petition, read as under:-
Rule 25. Presentation of nomination papers.-(1) On the day appointed under sub- clause (b) of clause (ii) of sub-rule (1) of Rule 23 for the presentation of nomination papers any person qualified under Section 19 for election as a Panch and desiring to seek such elections, hereafter in this chapter referred to as a candidate, shall deliver in person to the Returning Officer his nomination paper in (Form IV along with Form IV D) duly filled in and signed by him or bearing his thumb impression:41
Provided that if a candidate belonging SC, ST or Other Backward Class submits his nomination paper for a reserved ward, he shall attach a certificate to that effect issued by the Collector or any officer authorised by the State Government:
Provided further that a candidate belonging to SC or ST or Other Backward Class shall not be debarred to contest election from a general ward:
Provided also that no male candidate shall be eligible for filling nomination paper from a ward reserved for women.
(2) Any nomination paper not delivered as provided in Sub-rule (1) shall be rejected.
Rule 27. Scrutiny of nomination papers.-(1) On the day and the hour appointed under sub-clause (c) of Clause (ii) of Sub-rule (1) of Rule 23 for the scrutiny of nomination papers, the Returning Officer shall examine the same.
(2) At the time of such examination the candidates themselves and no other person may attend and the Returning Officer shall afford each of them -
(I) all reasonable facilities for examining the nomination papers delivered by them, and
(ii) a reasonable opportunity of making objections to any of them.
(3) The Returning Officer shall decide all such objections and may either on the basis of such objection or on his own motion reject any nomination paper on any of the following grounds, namely:-
(a) that the candidate is not qualified or is disqualified for election;
(b) that he is not identical with the person whose number or name on the voters list is stated in the nomination paper to be the number or name of the candidate;
(c) that his signature or thumb impression is not genuine or has been obtained by fraud, coercion or undue influence;
(d) that there has been a failure in complying with the provisions of Rule 1[25].
(4) The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same and, in case of rejection, a brief statement of his reason for such rejection.
(5) The scrutiny shall be completed on the same day and no adjournment of the proceeding shall be allowed.
Rule 58. Election of members of Panchayat Samitis/Zila Parishads.- (1) In 42 accordance with the time Schedule determined by the Commission, the District Election Officer (Panchayats) shall, by notification, call upon the constituencies of the Panchayat Samitis in the district and the constituencies of Zila Parishad to elect one member each and appoint -
(a) the date on which and the hours between which nomination papers are to be presented to the Returning Officer/Assistant Returning Officer;
(b) the day following the last day appointed for the presentation of nomination papers and the hours thereof, at which the scrutiny of such nomination papers shall be made;
(c) the day not later than the following day fixed for the scrutiny of nomination papers and the hours thereof between which the nomination may be withdrawn;
(d) the day which shall not be earlier than 7 days after the date fixed for withdrawal of nomination, on which a poll shall, if necessary, be taken;
(e) the hours within which such poll be taken;
(f) the place, date and time at which counting of votes shall commence. (2) The District Election Officer (Panchayats) shall appoint a Returning Officer for each Panchayat Samiti for election of its members and may also appoint Assistant Returning Officer to assist him.
(3) The Commission shall appoint Returning Officer for election of members of the Zila Parishad and also Assistant Returning Officers to assist him. (4) It shall be general duty of the Returning Officer/Assistant Returning Officers to perform functions mentioned in Rule 24 for conducting effectively election of the members of Panchayat Samitis and Zila Parishads under these rules. (5) In the case where ballot boxes are used, the provisions of Rule 24-A to 54 shall mutatis mutandis apply, and in the case where voting machines are used the provisions of Rule 24-A to 31, 35, 45, 46, 48, 48A, 48B, 48C, 49A, 49B, 51 and 54 and Chapter IV-A shall mutatis mutandis apply, so far as may be, to such election of members of Panchayat Samities/Zila Parishads :
[Provided that -
(a) a candidate shall not be deemed to be duly nominated for election from a constituency, unless he deposits a sum of Rupees 500/- or where the candidate is a women or a member of SC/ST/OBC, a sum of Rs.250/-.43
(b) the security deposit shall stand forfeited in the case of such candidates is not elected and fail to secure one sixth of the total valid votes polled in the Constituency election.
(c) Where a candidate has been nominated by more than one nomination paper for election, not more than one deposit shall be required of him in this sub rule.
(d) for the purpose of listing the names under clause (ii) of sub rule (3) of Rule 29, the candidates shall be classified in two categories namely
(i) candidates set up by recognised political parties and (ii) other candidates, and shall be arranged in that order. Further the names of candidates in each category shall be arranged in Hindi alphabetical order.
(e) a candidate set up by a recognised political party, shall not be deemed to be duly nominated from a constituency unless the nomination paper is subscribed by one proposer being elector of the same constituency.
Explanation:- A candidate who desires to be considered as candidate set up by a recognised political party, shall produce letter to that effect signed by the president or head of the state unit of that party or any person authorised by him in this behalf on or before 3 PM on the last day for making nominations specified in notification under sub- rule(1) of rule 58.
(f) a candidate not set up by a recognised political party, shall not be deemed to be duly nominated for election from a constituency unless the nomination paper is subscribed by 5 proposers being electors of the same constituency.
1[(6) (a) The State Election Commission shall, by notification in the official gazette, specify the symbols that may be chosen by candidates at elections of the members of Panchayat Samiti and members of Zila Parishad and the restrictions to which their choice shall be subject to.
(b) For the candidates set up by a party which is a recognised political party in the State under the Election Symbols (Reservation and Allotment) Order, symbols reserved for that party under the said order shall be alloltted, provided that such a political party sets up only one candidate per constituency. 3[xxx]
(c) 4[Subject to any general or special direction issued by the State Election Commission under clause (a), where at any] such election more nomination papers than one are delivered by a candidate, the choice of symbols made in the 44 nomination paper first delivered, and no other choice of symbols, shall be taken into consideration even if that nomination paper has been rejected.
(d) The candidate shall present his nomination paper in Form IV-A to the Returning Officer and indicate his choice of symbol.
(e) The Returning Officer shall consider the choice of symbols expressed by the contesting candidates in their nomination papers and shall; 2[subject to any general or special direction issued by the State Election Commission under clause (a);]
(i) allot a different symbol to each contesting candidate in conformity, as far as practicable with his choice; and
(ii) if more contesting candidates than one have indicated their preference for the same symbol, decide by lot (including computerised random draw) to which of such candidates the symbol will be allotted.
(f) The allotment by the Returning Officer of any symbol to a candidate shall be final except where it is inconsistent with any directions issued by the State Election Commission in this behalf in which case the State Election Commission may revise the allotment in such manner as it thinks fit.]
79. Corrupt Practice.- The following shall be deemed to be corrupt practices for the purposes of an election under these rules, namely :-
(1) Bribery, that is to say, any gift, offer or promise by a candidate or by any other person of any gratification to any person whomsoever with the object directly or indirectly, of inducing -
(a) a person to stand or not to stand as, or to withdraw from being a candidate or to retire from contest at an election; or
(b) an elector to vote or refrain from voting at an election; or as a reward to -
(i) a person of having so stood or not stood, or for having withdrawn his candidature, or
(ii) an elector for having voted or refrained from voting.
Explanation:- For the purpose of this clause the term "gratification" is not restricted to pecuniary gratification or gratification estimable in money, and it 45 includes all forms of entertainment and all forms of employment for reward but it does not include the payment of any expenses bonafide incurred at, or for the purpose of any election.
(2) Undue influence that is to say, any direct or indirect interference on the part of a candidate or of any other person with the free exercise of right to vote :
Provided that -
(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who -
(i) threatens any candidate or any other elector or any person in whom a candidate or an elector is interested with injury of any kind including social ostracism and excommunication or of expulsion from any caste or community;
or
(ii) induces or attempts in induce a candidate or an elector to believe that he or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure;
shall be deemed to interfere with the free exercise of the right of such candidate or elector to vote within the meaning of this clause;
(b) a declaration of public policy, or a promise of public action or the mere exercise of a legal right without intent to interfere, with the right to vote shall not be deemed to be interference within the meaning of this clause. (3) The systematic appeal by a candidate or any other person to vote or refrain from voting on grounds, of caste, race, community or religion or the use of, appeal to the religious symbols, or the use of or appeal to national symbols, such as the national flag or the national emblem for the furtherance of the prospects of that candidate's election. (4) The publication by a candidate or by any other person of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate or in relation to the candidature or withdrawal from contest of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election. (5) The hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or by any other person on behalf of the candidate for the conveyance of the elector other than the candidate himself or any member of his family to or from any polling station or place fixed for the poll:
Provided that the hiring of a vehicle or vessel by any elector or by several electors at their joint cost for the purpose of conveying him or them to or from any such polling station or place fixed for the poll shall not be deemed to be a corrupt 46 practice under this clause if the vehicle or vessel so hired is a vehicle or vessel not propelled by mechanical power :
Provided further that the use of any public transport vehicle or vessel or any trammer or railway carriage by any elector at his own cost for the purpose of going to or coming from any such polling station or place shall not be deemed to be a corrupt practice under this clause.
Explanation.- In this clause the expression "vehicle" means any vehicle used or capable of being used for the purpose of road transport whether propelled by mechanical power or otherwise and whether used for drawing other vehicles or otherwise.
(6) The incurring or authorising by a candidate or by any other person of expenditure in contravention of the provision of any rule or order relating to election.
(7) The obtaining or procurring or abetting or attempting to obtain or procure by a candidate or by any other person any assistance other than the giving of vote for the furtherance of the prospects of the candidate's election from any person in the service of the Government (or any local authority) and belonging to any of the following classes, namely :-
(a) Gazetted Officers;
(b) Stipendiary Judges and Magistrates;
(c) Members of the armed forces of the Union;
(d) Members of the police force;
(e) Excise Officers;
(f) Revenue Officers including village accountants such as Patwaris and the like but excluding other village officers;
(g) Such other class of persons in the service of the Government as may be notified;
(h) Members of the Rajasthan Panchayat Samiti and Zila Parishad Service, Rajasthan Panchayat Samiti and Zila Parishad (Class IV) Service and persons placed on deputation under section 79 and 82 the Rajasthan Panchayati Raj Act, 1994, and
(i) Employees of other local authority.
Explanation.- The word "candidate" means for the purpose of this rule and rules 80 to 89 the person who stood for, or was nominated for, the election to which an election petition pertains. 47 1[(8) The propagation of the practice or the commission of sati or its glorification by candidate or his agent or any other person with the consent of the candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate. Explanation.-For the purposes of this clause, "sati" and "glorification" in relation to Sati shall have the meanings respectively assigned to them in the Commission of Sati (Prevention) Act, 1987].
The RC was elected as member of Ward No.14 of Zila Parishad Bharatpur in an election held on 30-1-2015 result whereof was declared on 6-2-2015. The election petitioner laid a challenge thereto. Paragraph No.2 of the election petition, which incorporated the ground of allegation of improper acceptance of the RC's nomination form read as under:-
2- ;g gS fd Jherh chuk }kjk ftyk ifj'kn Hkjriqj ds fuokZpu {ks= la- 14 ds lnL; gsrq izLrqr fd;s x;s uke funsZ"ku i= esa xyr lwpuk,as vafdr dh gSa rFkk fu/kkZfjr izk:i 4 ?k ¼fu;e 25 vkSj 58 nsf[k,½ esa vius vijk/kksa ls lEcfU/kr lwpuk,a eqrkfcr izk:i vafdr ugha dh gSaA uke funsZ"ku i= ds dkye&;fn vfHklk{kh ¼vH;FkhZ½ ,sls fdlh vijk/k ¼vijk/kksa½ dk vfHk;qDr gS rks og fuEufyf[kr lwpuk nsxk %& ¼iii½ lEcfU/kr vf/kfu;e ¼vf/kfu;eksa½ dh /kkjk ¼/kkjk,a½ vkSj vijk/k ¼vijk/kksa½ dk laf{kIr fooj.k ftuds fy, vH;FkhZ vkjksfir gS %& bl en esa Jherh chuk }kjk vf/kfu;e dk dksbZ mYys[k ugha fd;k gS vkSj vijk/kksa dk laf{kIr fooj.k izLrqr ugha fd;k gSA blh izdkj chuk }kjk izk:i %& ¼?k½ dh en la[;k 4 ¼d½ esa py vkfLr;ka ¼lEifRr;ka½ esa cSad dk uke] dkj uEcj] ekWMy] "ks;j ,oa E;wpy Q.M dh dEifu;ka blh izdkj LFkkoj vkfLRk;ksa dk C;kSjk esa izk:i ds 48 vuqlkj losZ{k.k la[;k] lhek,a vafdr ugha dh gSa vkSj izk:i esa vkfJr la[;k 1 vkfJr la[;k 2 vkfJr la[;k 3 dk uke o mudh lEifRr;ksa dk fooj.k ugha fn;k gSA Hkou] okf.kfT;d vkSj vkoklh; esa vofLFkr@losZ{k.k@edku la[;k@lhek@dqy eki dk vadu ugha gS ,oa mikcU/k& ¼II½ "kiFk i= esa en la[;k 1 ds leLr dkWye dh iwfrZ;ka chuk }kjk ugha dh xbZ gSa tksfd muds }kjk vafdr izk:i 4 ?k ds dkWye la[;k 1 dh lwpukvksa ls esy ugha [kkrh gSa ,oa dkWye la[;k 2 esa Hkwfe;ksa dk fooj.k Li'V vafdr ugha fd;k gS mudh la[;k] lhek,a] foLrkj vafdr ugha fd, gSa rFkk izk:i 4 ?k dh LFkkoj vkfLFk;ksa dk C;kSjk ds mien ¼II½ ¼v½ ds dkWye viw.kZ NksM+s x;s gSaA fuokZpu vk;ksx }kjk "kiFk i= fu/kkZfjr izk:i esa 10 :- us ukWu T;wfM"ky LVkEi isij ij ekaxk x;k Fkk tksfd izR;k"kh chuk }kjk lHkh dkyeksa dh iwfrZ dj fu/kkZfjr izk:i ds vuqlkj izLrqr ugha fd;k x;k gS tksfd dk;kZy; lgk;d fjVfuZax vkWQhlj] iapk;r pquko] 2015] vfrfjDr ftyk eftLVªVs ¼"kgj½ Hkjriqj }kjk muds i=kad@eheks@ft-i-fu-@eheks@2015 fnukad 19-02-2015 ds }kjk mDr iwfrZ gsrq ;g uksfVl fn;k x;k Fkk fd vki }kjk ftyk ifj'kn fuokZpu {ks= la- 14 ls jktuSfrd ny Hkkjrh; turk ikVhZ ls ukekadu i= izLrqr fd;k x;k gSA vki }kjk uke funsZ"ku i= ds lkFk vxzkafdr okafNr nLrkostkr izLrqr ugha fd, gSaA vr% vki uke funsZ"ku i= dh vafre frfFk 20-01-2015 ¼eaxyokj½ le; lka; 3-00 cts ls iwoZ bl dk;kZy; esa mifLFkr gksdj O;fr"k% miyC/k djkosa vU;Fkk vki }kjk izLrqr fd;k x;k uke funsZ"ku i= laoh{kk esa fujLr dj fn;k tk;sxkA ftlds fy, vki Lo;a ftEesnkj gksaxsA d`i;k lwfpr gksa ,oa en la[;k 1 izi= *?k^ esa vki }kjk vafdr izFke lwpuk fjiksVksZa ds Øe esa lwpukvksa okcr tkudkjh dk mikca/k ¼ii½ esas 10 :- ds xSj U;k;kf;d LVkEi ij fn;s x;s "kiFk i= ij vadu ugha fd;k x;k gSA bl eheks dh lwpuk dh rkehy izR;FkhZ la[;k 1 chuk ij fu/kkZfjr vof/k esa gks xbZ FkhA vafre fnukad 20-01-2015 le; lk;a 3-00 cts ls iwoZ Jherh chuk }kjk mikca/k ¼ii½ izk:i ds vuqlkj lwpuk;sa miyC/k ugha djkbZ xbZ gSa bl izdkj fjfVfuZax vkWQhlj] ftyk dyDVj ,oa ftyk eftLVªsV Hkjriqj ftyk ifj'kn lnL; fuokZpu 2015 ftyk Hkjriqj ds ikl mDr uke funsZ"ku i= dks [kkfjt djus ds vykok vU; dksbZ fodYi ugha Fkk fQj Hkh muds }kjk Jherh chuk dk uke funsZ"ku i= fnukad 21-01-2015 dks mDr fuokZpu esa ?kksj vfu;ferrk,a] voS/kkfudrk,a ,oa xyfr;ka dj xyr :i ls Lohdkj fd;k x;k gSA tcfd ;kph }kjk bf.M;u us"kuy dkaxzsl ds izR;k"kh ds :i esa vius uke funsZ"ku i= dh ,d izfr izLrqr dh xbZ Fkh mlds lkFk ;kph }kjk bf.M;u us"kuy dkaxzsl ds izkf/kd`r vf/kdkjh izkarh; v/;{k }kjk lEcaf/kr flEcy izk:i ds vuqlkj flEcy vkoafVr dj mDr pquko fpUg 49 ij pquko yMus gsrq vf/kd`r fd;k x;k Fkk ftlds fy, mUgksaus i`Fkd ls ,d i= Jheku ftyk fuokZpu vf/kdkjh ¼iapk;r pquko 2015½ Hkjriqj dks Hkstk Fkk o mldh nwljh izfr ;kph dks nh Fkh tks ;kph us vius uke funsZ"ku i= ds lkFk izLrqr dh Fkh ftls ftyk fuokZpu vf/kdkjh }kjk izk:i ds vuqlkj u ekurs gq, bf.M;u us"kuy dkaxzsl ds izR;k"kh ds rkSj ij izLrqr uke funsZ"ku i= [kkfjt dj fn;k Fkk bl izdkj fuokZpu vf/kdkjh Hkjriqj }kjk ;kph ,oa izR;FkhZ la[;k 1 ds ekeys esa ,d izko/kku gksrs gq, Hkh i`Fkd i`Fkd vfHkO;fDr ekuh gSA ;fn ;kph dk bf.M;u us"kuy dkaxzsl ds izR;k"kh ds rkSj ij izLrqr uke funsZ"ku i= [kkfjt u gksrk rks fuf"pr gh mDr fuokZpu dk ifj.kke ;kph ds i{k esa gksrkA vkSj mDr uke funsZ"ku i= xyr:i ls Lohdkj ugha fd;k x;k gksrk rks Jherh chuk ftyk ifj'kn Hkjriqj ds lnL; in gsrq fuokZpu {ks= la[;k 14 ls pquko yMus dh ;ksX;rk,a ugha j[krha ,oa pquko ugha yM ldrh FkhaA The other ground for challenging the election of the RC as member of ward No.14, Zila Parishad Bharatpur was that she was not lawfully registered as a voter in ward No.14 as she was not an ordinarily resident of village Pidawali and hence could not have been contested the election, while she did and won.
Re:Election liable to be set aside for reason of RC not being ordinarily resident of village Pidawali:
Albeit the trial court on its understanding of the law and appreciation of evidence laid by the contesting parties has held that 50 RC's election as a member of ward No.14 of Zila Parishad Bharatpur was vitiated and liable to be set aside for reason of her not being ordinarily resident of village Pidawali District Bharatpur--ward No.14, but a resident of Rohini Nagar, New Delhi, the said finding of the trial court is palpably unsustainable in view of the settled legal position that once a person is registered as a voter in a constituency she is entitled to vote in the election of said constituency and also contest the election thereto without anything more or question. It is no more res integra that the finality of electoral rolls in a constituency cannot be challenged in an election petition even if certain irregularities had taken place in preparation of electoral rolls. In the instant case Rules of 1994 provide a mechanism for correction of the electoral rolls including for deletion of names of registered voters inter alia for reason of a voter discontinuing to be ordinarily resident of a constituency. Chapter III beginning rule 11 and ending Rule 22 of the Rules of 1994 comprehensively deal inter alia with the preparation of electoral rolls and their duration. Rule 51 14 of the Rules of 1994 provides for objection to the registration of a voter and processing thereof. Rule 20 provides for interim alteration of electoral rolls following an enquiry inter alia on the ground that the name from electoral roll needs to be deleted for the reason of the person having changed her ordinary place of residence. Rule 21 provides for an appeal to the collector from an order of rejection of objection seeking deletion of name of a registered voter entered into the rolls. Admittedly no steps for the deletion of name of the RC from the electoral roll of ward No.14 of Zila Parishad Bharatpur were at any time taken by the election petitioner or others. The name of the RC continued to be on the electoral rolls of Ward No.14 Zila Parishad Bharatpur and had then attained finality when the election for the post of member of ward No.14, Zila Parsiahd took place on 30-1-2015.
The Apex Court in the case of Nripendra Bahadur Singh Vs. Jai Ram Verma [AIR 1977 SC 1992] held in para 25 thus:-
52
"25. Thus in a catena of cases this Court has consistently taken the view that the finality of the electoral roll cannot be challenged in an election petition even if certain irregularities had taken place in the preparation of the electoral roll or if subsequent disqualification had taken place and the electoral roll had on that score not been corrected before the last hour of making nominations. After that dead line the electoral roll of a constituency cannot be interfered with and no one can go behind the entries except for the purpose of considering disqualification under Section 16 of the 1950 Act."
Similarly in the case of Shyamdeo Pd. Singh v. Nawal Kishore Yadav [AIR 2000 SC 3000], the Apex Court in para 24 held thus:
"To sum up we are of the opinion that inclusion of person or persons in the electoral roll by an authority empowered in law to prepare the electoral rolls though they were not qualified to be so enrolled cannot be a ground for setting aside an election of a returned candidate under Sub-clause (iii) of (iv) of Clause (d) of Sub-section (1) of Section 100 of the Representation of the People Act, 1951. A person enrolled in the electoral list by an authority empowered by law to prepare an electoral roll or to include a name; therein is entitled to cast a vote unless disqualified under sub-sections (2) to (5) of Section 62 of the Representation of the People Act, 53 1951. A person enrolled in the electoral roll cannot be excluded from exercising his right to cast vote on the ground that he did not satisfy the eligibility requirement as laid down in Section 19 or 27(5) of the Representation of the People Act, 1950."
In the case of Laxmi Kant Bajpai Vs. Haji Yaqoob [(2010)4 SCC 81] the Apex Court in para 46 held thus:
"46. Coming to the present case, the relevant portion of the specific averment made by the appellant in Para 27 of the Election Petition reads as follows:
"That the appellant thereupon made a representation to the Chief Election Officer, Election Commission of India, New Delhi, on 05.05.2007 wherein he prayed that the name of voters included in the electoral rolls of the aforesaid 21 localities/colonies/mohallas be excluded from 381 Meerut Assembly constituency."
Resultantly the finding of the trial court setting aside the election of the RC as member of ward No.14 on the ground of her not being ordinarily resident of village Pidawali Ward No.14 of Zila Parishad Bharatpur but Rohini Nagar, New Delhi despite her name registered in the relevant electoral roll at the time of the election is 54 misdirected, unsustainable and therefore liable to be quashed and set aside. It is so.
Re: Necessity of pleading material facts in an election petition under Rule 82 of the Election Rules of 1994.
Rule 82 of the Rules of 1994 reads thus:
82. Contents and verification of election petition.- (1) The petition shall contain a concise statement of the material facts on which the petitioner relies and shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Central Act V of 1908), for the verification of pleadings.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified by him in the same manner as the petition.
Rule 82 of the Rules of 1994 categorically states that the election petition shall contain a concise statement of material facts on which the election petitioner relies. Material facts have a well defined connotation in law which entails setting out of primary and essential facts in support of the allegations/ ground on which the judgment/ decree of the Court is sought by the plaintiff. Material facts constitute the very cause of action and have to be proved at the 55 trial. Whether the material facts have been pleaded in a suit and supply the cause of action is a question required to be addressed in each case with reference to the pleadings and relief/s sought. In the instant case the allegation in the election petition with reference to the alleged improper acceptance of the RC's nomination form on which the RC's election was challenged were set out in Para 2 which has been reproduced hereinabove (at page No.45).
Therefrom it is evident that, for one the allegations in the plaint are not as to non-disclosure of assets but as to inadequate disclosure of the details pertaining to assets disclosed in the nomination form and accompanying documents-particularly Form 4(d) appended to the Election Rules, 1994 and supporting affidavit. Besides read one way or the other para No.2 of the election petition indicates that the election petitioner did not only aver/ allege with any specificity the property movable/ immovable not disclosed by the RC in the nomination form or in the form 4D. What was averred 56 was that particulars of the immovable assets of RC as also the particulars of bank account, vehicle number, its model owned by the RC and shares and mutual funds holdings lacked particularly. The averments in the election petition are that the survey number and boundaries of immovable properties standing in the RC's name, her spouse and dependent children were not disclosed. Further allegation was that columns in respect of immovable properties and in form 4D were left unfilled and mismatched information in the affidavit. There is neither any allegation that the RC suppressed information in respect of any property or asset movable or immovable nor the allegedly suppressed property stated.
In Hardwari Lal Vs. Kanwal Singh [(1972)1 SCC 214] the Apex Court held that material facts are facts which if established would give the plaintiff the relief asked for. The Apex Court then in the case of Hari Shankar vs. Sonia Gandhi [(2001)8 SCC 233] held that vague and bald allegation/s without supporting foundational 57 and essential facts in an election petition cannot be of any avail. The Court described "material facts" to mean those fact/s essential or elemental for supporting the allegation/s made in the election petition. It was held that facts which afford the basis for the allegation in election petition and constitute a cause of action are material facts. The Court went on further to state that merely quoting the wording of the statutory ground on which challenge to an election is made does by itself not tantamount to averring of material facts which facts would be positive statement of facts. (underlined for emphasis). Absent such positive statement of facts supporting the allegation made in the election petition on which the cause of action is sought to be founded, the election petition itself would be liable to be rejected at the threshold.
No doubt the judgment of the Apex Court in Hari Shankar vs. Sonia Gandhi (supra) was in the context of Section 83(1)(a) of the Representation of People Act, 1951 (hereinafter `the Act of 1951'), 58 but reference was also made to Order 6 Rule 2 CPC which provides that pleadings should contain in concise form the material facts relied upon by a party for claiming relief sought and prayer made. Yet, the law reiterated by the Apex Court in the above mentioned case applies fully to the case under consideration as it is quite clear from a reading of Rule 82 of the Rules of 1994 that it is pari materia both with Section 83(1)(a) of the Act of 1951 and Order VI Rule 2 CPC.
The defence to the election petition i.e. of not disclosing a cause of action for lack of material facts relevant to making out the ground of improper acceptance of nomination form was categorically set out by the RC in reply to election petition more so, with the liberty of this Court in SBCWP No.4355/2016 disposed of on 5th April, 2016. On that defence, the trial court thereupon indeed framed issue No.11 and 12 as to whether the election petition was not maintainable for not averring material facts and hence not 59 disclosing a cause of action. Yet in dealing with the said issues in para 51 and 53 of its impugned judgment, the Trial Court only cursorily made a reference to the substantial defence raised by the RC but did not address the issue with any application of mind at all with reference to the contents of the election petition and the obtaining law.
The contention of senior counsel appearing for the election petitioner that the issue of the election petition not stating material facts cannot now be considered in this petition as no specific ground in respect thereto has been set out, is quite untenable. For one the entire judgment rendered by the Trial Court on 16-1-2017 inter alia setting aside the RC's election is under challenge amongst others on the ground of perversity--an all encompassing ground. Secondly, lack of material facts being avered in the election petition was a specific defence in the reply to the election petition. Issue No.11/12 were framed thereon. Thirdly, there is and cannot be any factual 60 dispute, in consideration of the ground agitated founded as it is on election petitioner's own pleading. No prejudice can be set up by the election petitioner in the event of the court considering his own pleadings in the election petition. Even otherwise the question whether the election petition in issue pleaded material facts in support of the allegation of improper acceptance of the RC's nomination form is a question of law, answer of which is wholly dependent upon pleading of election petitioner before the trial court without anything more. The pleadings alone are to be construed by this court with reference to Rule 82 of the Rules of 1994 and no disputed question of fact needs to be addressed.
In Udhav Singh v. Madhav Rao Scindia (supra) an argument was taken by counsel for the Election Petitioner that an objection taken by the RC as to the election petition being vitiated for non joinder of necessary party with reference to Section 82(4) of the Representation of People's Act, 1951 (Act of 1951) not having been 61 taken at the intial stage in the written statement, it could not be taken about 14 months subsequent, more so by way of a miscellaneous application and no formal amendment to the written statement. And hence such an objection could not be entertained at the RC's behest by an application at an advanced stage in the trial in the election petition. The Apex Court held that non compliance with Section 82(b) of the Act of 1951 would inexorably lead to the consequence of dismissal of the election petition under Section 86 of the Act of 1951, objection or no objection in the written statement. It was further and more importantly held that when a plea in defence does not depend on evidence but raises a pure question of law turning on the construction of the plaint, it can be raised at any stage for in such circumstances the belated raising of the plea in defence would not conceivably cause any prejudice to the plaintiff. Such a defence plea could therefore be raised at any time even without formal amendment of the written statement. Whether or not the election petition averred material facts or not and made out a 62 trial issue with regard to improper acceptance of the RC's nomination form is to be determined on the construction of the pleadings in the election petition. It is thus a pure question of law which can be considered even without being specifically raised in the writ petition as a ground.
The instant case is on a higher pedestal on facts. Here a specific objection was taken before the trial court, issue framed thereon but only casually addressed without any apparent application of mind by the trial court.
For the aforesaid reasons this court does not find itself hemmed in by any jurisdictional limitation in addressing the argument of counsel for the RC as to the very maintainability of the election petition filed by the election petitioner inter alia on the ground of alleged improper acceptance of the nomination form without pleading of material facts to support the allegation. 63
I am of the considered view that material facts for laying an election petition on the ground of improper acceptance of RC's nomination form in terms of 80(1)(d) of the Rules of 1994 would have necessarily entailed statement of facts as to the assets--movable and immovable allegedly not disclosed in the nomination form. A roving enquiry could not be ask for on a bald allegation, as was sought to in the election petition. The election petition was based on bald allegations on improper acceptance of nomination form without supporting fact and non maintainability on that gound. The trial completely misdirected itself in casually overlooking this fact while deciding issue No.11 and 12 wrongly. I would therefore hold that the ground of improper acceptance of the RC's nomination form was not made out.
Even though the impugned judgment dated 16-1-2017 passed by the trial court in the circumstances is liable to be set aside 64 without more, yet for the conscience of the court, I have also considered the "evidence" (inadmissible as it was for being beyond pleadings) as to non disclosure of agricultural land/s purportedly in the name of the RC and her husband as also a SUV Hundai Terracan with registration No.DL-FDD-0002 standing in the name of Jitendra Singh, the RC's husband and partnership property of the firm M/s. Chandrawati Hospitality & Tourism in which the RC and her husband each had 40% share with the remainder 20% with the daughter, 26 years of age and a major.
As immovable property in the ownership possession and of the RC/ her spouse is concerned, the agricultural land in khasra No.736 and 739 in village Shrinagar District Bharatpur was stated by the RC to have been shown as gair mumkin rasta and not in her possession or control, as the UIT was stated to have constructed road thereon. As far as the land in khasra No.716 and 718 in chak No.1 Tehsil Bharatpur is concerned, the specific uncontroverted case of the RC 65 in her defence evidence was that the said land had not been purchased by her nor under her signatures. Even her photograph was not pasted on the sale deed and nor was the said land in her or her spouse's possession or held to be her family's benefit. Instead it was in the exclusive possession of Padam Singh, her father in law at loggerhead with her and who appeared as a witness for the election petitioner. This testimony of the RC and her witnesses remained unshaken. It has thus plausibly been established that the land in khasra No.716 and 718 situate in chak No.1 was Padam Singh's benami holding in his possession and for his own benefit.
The Apex Court albeit in a different context has had the occasion to consider the incident of ownership in the case of State of UP Vs. Renusagar Power Co. [(1988)4 SCC 59]. It held that the idea of ownership entails possession and holding of the property. I am of the considered view that in the state of unshaken evidence before the trial court particularly that the RC neither signed the sale deed qua 66 the land in issue nor paid consideration therefor, which was paid by Padam Singh, her father-in-law, who was also stated to be in possession of the land in Chak No.1 khasra No.716 and 718 Bharatpur, there was no reason to disbelieve the contention of the RC that she had no knowledge of the said property standing in her name when she filed her nomination form. The explanation is quite plausible in the facts of the case. The trial court while coming to contrary finding has overlooked the defence evidence completely and acted perversely in holding the RC as having knowledge of the khatedari of the land in issue and in finding her guilty of suppression in respect thereto while submitting the nomination form and form 4(d) of the Rules of 1994.
As far as land of khasra No.627/1 in village Pidawali in the Khatedari of the RC's husband. Dr. Jitendra Singh is concerned the RC had disclosed the holding of 7 bigha, albeit it appears that the said holding was indeed about 8 bigha.
67
The Apex Court in the case of Kisan Shanker Kathore (supra) has held that if there is substantial compliance with the requirement of disclosure of assets even when statutorily required under Section 33(1) and 33A of the Act of 1951 the acceptance of such nomination form in that situation cannot be said to be improper. The principle of substantial compliance would apply with more vigour where the requirement of disclosure is not statutory as in the instant case and where the State Election Commission's guidelines provide that a nomination form cannot be rejected on such incomplete disclosure.
As far as the issue of non disclosure of assets of partnership firm is concerned I am of the considered view that in the context of the requirement set out column 4 (a) of form 4(d) of the Election Rules, 1994 the candidate seeking to contest the elections was required to disclose immovable property, of self, spouse and 68 dependent children as also the share of the candidate/ spouse/ dependent children in properties in co-ownership. No requirement to disclose extent of share in partnership property has been set out in Form IV(d) in column in 4(a) or otherwise. The Apex Court in its various judgments has held that partnership property cannot be construed either as individual property of any partner or even property in co-ownership. The law appears to be that partnership property is a species of property which even though notionally vests in all partners, during the subsistence of partnership, cannot be dealt with as personal property or in co-ownership of the partners. Such property continues to wax and wane with the fortunes of the partnership firm. In the case of Purushottam Vs. Shivraj Fine Arts Litho Works [(2007)15 SCC 58] the Apex Court reiterated its earlier judgment in the case of Addanki Narayanappa v. Bhaskara Krishtappa [AIR 1966 SC 1300] to restate the legal position that once a property is brought in the stock of the partnership firm, it ceases to be exclusive property of any person, even the erstwhile 69 owner, but would partake the character of the firm's trading assets with the partners interest therein in proportion to their share in the partnership business. Consequent to which the partners would therefore not be able to claim any specific right over the property of the partnership firm and their rights as partners would only crystallize subsequent to dissolution of partnership firm or on the retirement of the partner, as the case may be. In those situations the partners would be entitled to value of their respective shares or the residue as the case may be as per the partnership deed. The entitlement would be largely monetary in nature following valuation at the time of a retirement or on dissolution, liquidation of the assets of the firm and discharge of the firm's liabilities to its creditors. In para 11 it was held as under:
"The High Court has, therefore, rightly held that the partnership having come into existence of which Plaintiff No. 1 was a partner, and he having transferred to the said partnership all his assets and liabilities of his proprietary concern, he had no subsisting exclusive right to enforce the liability against the defendants since such rights as he had as the proprietor vested in the partnership. He could 70 not therefore either file a suit or claim any relief in the suit filed by the partnership asserting his right as the erstwhile proprietor. The second submission also fails."
As far as the non disclosure of the Hundai Terracan (SUV) standing to the name of the RC's husband Dr. Jitendra Singh is concerned, I am of the considered view that the trial court has drawn a legally uninformed conclusion to hold against the RC. Section 5 of the Sale of Goods Act, 1930 (hereinafter `the Act of 1930') deals with the manner of making a sale. A contract of sale is made by the buyer's offer and the seller's acceptance with condition of payment of price and delivery being as mutually agreed. The evidence on record Ex.1-21 was a delivery note evidencing the delivery of the SUV in issue to one NAW-2 Sukhwinder Singh, following a sale apparently oral. NAW-2 Sukhwinder Singh in his statement before the trial court admitted to the purchase and receipt of delivery in pursuance thereto. Contracting parties to a contract of sale as defined under the Act of 1930 having affirmed the sale and proved delivery made in pursuant thereto the trial court had no 71 occasion to refer only to the fact of registered ownership of the SUV in issue with Dr.Jitendra Singh and hold him as owner. Registration of the vehicle entails ownership thereof only in the context of the Motor Vehicles Act, 1988 and the obligations thereunder. It does not negate the very sale under the Act of 1930. The mutuality in the sale of goods is indeed quite invioable at the instance of a third party unless a specific contravention of a particular statute such as under
existing laws is questioned by statutory authorities. No part of the Act of 1930, which would negate the sale of the Hundai Terracan SUV by Dr. Jitendra Singh, the husband of the RC to NAW-2 Sukhwinder Singh, admittedly prior to the election of member of ward No.10 of Zila Parishad Bharatpur to which the RC contested, can be invoked to invalidate the said sale and entail Dr. Jitendra Singh remaining owner. For the aforesaid reason, I would also set aside the trial court's finding on this count.
As far as contention relating to 2 blank columns in form IV(d) 72 of the Election Rules of 1994 filed with the nomination form is concerned, it is apparent that the RC had disclosed non agricultural immovable properties in the affidavit annexed thereto. In the circumstances it cannot be held that non agricultural properties standing to the name of RC and her spouse were not disclosed.
Disclosure of properties of self, spouse and dependent children (RC had none) is a question of substance not form. The contention of Senior counsel that RC's election as Ward Member and Zila Pramukh liable to be set aside on the aforesaid ground, is wholly untenable.
Article 243-O of the Constitution of India provides that no election to any Panchayat shall be called into question except in the manner provided for by state law. The Act of 1994 and the Rules of 1994, are such law. Neither the Act of 1994 nor the rules of 1994 provides that the electorate has the right to information as has been provided by Section 33A of the Act of 1951. Article 243K of the Constitution of India however provides that the State Election 73 Commissioner appointed by the Governor shall superintend, direct and control the elections of the Panchayat institutions. In the exercise of that power the State Election Commissioner has issued guidelines for elections in the Panchayati Raj Institutions stating that of the four aspects adverted thereto therein, the first three (i) pendency of criminal case (ii) details of conviction and (iii) information relating to children (all related to eligibility under Section 19 of the Act of 1994), be treated as mandatory and non-
compliance therewith entail rejection of nomination form during scrutiny. It was however stated that yet on the fourth aspect detailed in the guideline relating to disclosure of assets, no nomination form be rejected during scrutiny for reason of such requirement not being statutory.
The power of Election Commission of India under Article 324 of the Constitution of India with reference to election under the Act of 1951 was considered by the Apex Court in the case of Kisan 74 Shankar Kathore (supra). The Apex Court held that the said power to superintendent, control and issue directions included the power to issue guidelines for the conduct of election--no doubt ensuring that the guidelines were not at odds with statute. The State Election Commission's power under Article 243K of the Constitution of India are pari materia with powers of the Election Commissioner of India under Article 324 of the Constitution of India. In this view of the matter, for reason of analogy and rule of logic I am of the considered view that the State Election Commissioner can issue binding guidelines not at odds with the Act of 1994 and rules made thereunder. Such guidelines bind the manner of holdings of elections. In this context the guidelines issued by the State Election Commission, which have not been denied by the Senior Counsel appearing for the election petitioner provided that nomination forms not be rejected on the issue of disclosure of assets were binding on the returning officer. I am of the considered view that adherence to the State Election Commissioner's guidelines cannot entail improper 75 acceptance of the nomination form by him. And acceptance of nomination form based on guidelines cannot logically be a ground of challenge in an election petition. A three judge bench of the Apex Court in Satya Narain v. Dhuja Ram [(1974)4 SCC 237] has held that the right to challenge an election is conferred under a self contained law (here the Act of 1994 and the Rules of 1994) and the court when called upon to do so, will have to seek the answer to the question raised within the four corners of the relevant Act and the Court's power are circumscribed by its provisions. In the same vein a three judge bench of the Apex Court in Arikala Narasa Reddy v.
Venkata Ram Reddy Reddygari [(2014)5 SCC 312] has held that equity does not apply to the adjudication of election disputes. In the circumstances, I am of the considered view that no improperly attached to the acceptance of the RC's nomination form and the Trial Court misdirected itself in law in interfering therewith and setting aside the election of the RC as member ward No.14 of the Zila Parishad Bharatpur.76
So far the judgment of the Apex Court in the case of Kisan Shankar Kathore (supra) is concerned it is well to recall the oft repeated dictum of the Apex Court that its judgments are not elucid's theorems to be read or interpreted as statute but merely have precedential value having regard to the particular facts of the case in issue. In this context, Kisan Shankar Kathore (supra) indicates that it was rendered on the legal regime under the Act of 1951, particularly Section 33A relating to the Electors' statutory Right to Information. Further the said judgment reveals that the RC in that case had effectively admitted that she had not disclosed information as to the vehicle and bungalow owned by her husband.
Additionally there were no issues before the Apex Court in the case of Kisan Shankar Kathore (supra), as in the instant case, i.e. as to the very maintainability of the election petition filed by the election petitioner for reason of non pleading of material facts and resultantly a triable issue being absent or that the evidence laid by 77 the election petitioner in court was at variance with the pleadings in the election petition and hence inadmissible.
The Apex Court in the case of Bharat Petroleum Corporation Limited Vs. N.R. Vairamani [(2004)8 SCC 579] on the issue of the precedential value of an earlier judgment has held as under:-
"9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid's theorems nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into length discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton [1951 AC 737] Lord MacDermott observed:
"The matter cannot, of course, be settled merely by treating the ipsissima verba of willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge..."
10. In Home Office v. Dorset Yacht Co. [(1970)2 All ER 294] 78 Lord Reid said "Lord Atkin's speech .. is not to be treated as if it were a statutory definition. It will require qualification in new circumstances. Megarry J. in Shephered Homes Ltd. V. Sandham [(1971) 1 WLR 1062] observed "One must not, of course, construe even a reserved judgment of Russell, LJ as if it were an Act of Parliament". And in Herrington v. British Railways Board [(1972)2 WLR 537] Lord Morris said:
"There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case."
11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusion in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
12. The following words of Lord Denning in the matter of applying precedents have become locus classicus:
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
"Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it."79
The upshot of the above discussion is that the impugned judgment dated 16-1-2017 passed by the trial court in election petition No.167/2016 filed by Snehlata is in excess of the trial court's jurisdiction in entertaining a bald allegation of improper acceptance of nomination form without statement of material facts in support thereof; for being contrary to law in holding that the RC was not ordinarily resident of village Pidawali, when such issue could not be addressed in the election petition and for being palpably perverse in considering the bank account of a partnership firm M/s. Chandrawati Hospitality and Tourism (Ex.53, 54 and 55) and that of Chandrawati Education Society, a body corporate with its independent juristic personality, as bank accounts of the RC and her husband. The impugned judgment is also vitiated by complete non application of mind in overlooking the binding effect of the guidelines of the State Election Commission under Article 243-K of the Constitution of India, directing that a nomination form could not 80 be rejected for reason, such as an issue of disclosure of assets, as it was not a statutorily prescribed ground of eligibility to contest the election. The judgment of the trial court is further also liable to be set aside for reason of being mechanically based on the judgment of the Apex Court in Kisan Shankar Kathore (supra) despite it being rendered under a wholly different statute--Representation of People's Act, 1951, with a provision pari materia to Section 33A therein being absent in the Act of 1994, as also for reason of overlooking the difference in facts of the two cases and deviating from the law laid down by the Apex Court that a judgment has precedential value only with reference to its underlying facts and law--not otherwise.
Consequently the impugned judgment dated 16-1-2017 in the election petition No.167/2016 filed by Snehlata is set aside.
The trial court by the impugned judgment dated 16-1-2017 81 has also decided the election petition (166/2016) filed by Sulbha Sinsinwar in respect of election to the post of Zila Pramukh. The said judgment is under challenge in SBCWP No.1141/2017.
Issues No.1,2,3,4,8,9,12,13,15,16,17,19,20 and 21 in election petition filed by Sulbha (166/2016) have been treated by the trial court to be identical to issues No.1,2,3,4,5,6,7,8,9,10,11,12,13 in election petition No.167/2016 filed by Snehlata against the RC.
The aforesaid issues have been considered in SBCWP No.1142/2017, Beena Vs. Snehlata & others and conclusions therein will apply ipso facto to this petition No.1141/2017. Resultantly the findings of the trial court on the aforesaid issues would stand set aside.
What remains to be addressed now in the present petition is the conclusions/ findings and legality of the judgment of the trial court on issues No.5,6,7,10,11,14, and 18, in election petition 82 No.166/2016, titled Sulbha Sinsinwar Vs. Beena Singh and Others, which are thus:-
fook|d la[;k 5 %& ;g fook|d bl vk"k; dk gS fd D;k izR;FkhZ la[;k 1 us izR;FkhZ la[;k 2 o 3 ls lkt dj ;kfpdkdrkZ ds fuokZpu {ks= la[;k 10 dk ifj.kke jksdkA ;kfpuh dk pquko ifj.kke fnukad 05-02-2015 dks fuokZpu vk;ksx dh vf/klwpuk ds vuqlkj tkjh gksuk pkfg, Fkk tcfd pquko ifj.kke fn- 07-02-2015 dks ?kksf'kr fd;k x;kA mDr pquko dk ifj.kke izR;FkhZ la- 2 }kjk ;kfpdkdrkZ dks cSdMsV fn- 06-02-2015 dks tkjh fd;k x;k \ bldk fl) djus dk Hkkj ;kfpuh ij gSA fook|d la[;k 6 %& vk;k fuokZpu vk;ksx dh vf/klwpuk ds vuqlkj ftyk ifj'kn ds lnL; fuokZfpr gksus ds 24 ?k.Vs ckn gh ftyk izeq[k dk fuokZpu gks ldrk Fkk tcfd ;kfpuh dk ftyk ifj'kn lnL; gsrq fd;k x;k fuokZpu dk ifj.kke 07-02-2015 dks tkucw>dj izR;FkhZ la[;k 2 o 3 us tkjh fd;k ftldh otg ls ;kfpuh vius mDr in ds pquko ifj.kke esa my>h jgh vkSj ;kfpuh dks ftyk izeq[k gsrq pquko izpkj djus ds fy, izR;FkhZ la- 1 ds eqdkcys de le; fn;k x;kA bl izdkj izR;FkhZ la[;k 2 o 3 }kjk tkucw>dj oS/kkfud izfØ;k dk vuqlj.k ugha fd;k x;k\ fook|d la[;k 7 %& vk;k izR;FkhZ la[;k 1 }kjk izR;FkhZ la[;k 2 o 3 ls feydj Hkz'V vkpj.k viukrs gq,] izR;FkhZ la[;k 1 ds fy, ftyk izeq[k ds fuokZpu esa ernku djkus ds fy, lEHkkfor fuokZfpr lnL;ksa dks ,d eksVh jde fj"or ds :i esa nsdj izR;{kr% ;k ijks{kr% mRiszfjr djus ds mn~n"s ;
ls ikfjrksf'kd fn;k x;k] nku fd;k ,oa dbZ izR;kf"k;ksa dks izR;FkhZ la[;k 1 ds f[kykQ izR;k"kh ds :i esa [kM+k ugha gksus ds fy, jksdk x;k\ fook|d la[;k 10%& vk;k izR;FkhZ Jherh chuk flag us ernkrkvksa dks Mjk] /kedk dj :fyax ikVhZ ds LFkkuh; fo/kk;dx.k] LFkkuh; lkaln ,oa mDr ikVhZ ds ofj'B inkf/kdkfj;ksa }kjk viuh mifLFkfr esa [kqys esa izR;FkhZ la[;k 1 ds i{k esa ernku djk;k rFkk fu'i{k ernkrkvksa dks dksbZ u dksbZ cgkuk cukdj jksdk x;k ftldh f"kdk;r ;kfpuh ds } kjk izR;FkhZ la[;k 2 o 3 dks dh xbZA bl f"kdk;r dks muds }kjk tkucw>dj izR;FkhZ la[;k 1 dk ncko ekudj utjvUnkt fd;k ,oa mDr f"kdk;r dks vfHkys[k ij Hkh ugha 83 fy;kA fook|d la[;k 11 %& vk;k izR;FkhZ chuk flag }kjk ukekadu i= ds 4¼?k½ vkSj mikcU/k&II esa dh xbZ izfof'V;ksa esa gh fHkUurk gS rFkk ukekadu i= esa dkQh dkWye iw.kZr% fjDRk NksM+s gSa] ftlds dkj.k foi{kh la- 2 o 3 }kjk ukekadu i= voS/k :i ls Lohdkj fd;k x;k gS\ fook|d la[;k 14 %& vk;k bl fuokZpu esa 35 ernkrk Fks ftUgksaus vius erkf/kdkj dk iz;ksx fd;k ftuesa ls 34 er mRrjnkrk dks feys vkSj ,d er izfr{ksfir jgkA ;kfpuh dks ,d Hkh er izkIr ugha gqvkA ;kfpuh us Lo;a ds fy, Hkh ernku ugha fd;k blfy, og ;kfpdk nk;j djus dh vf/kdkfjrk [kks pqdh gS\ fook|d la[;k 18 %& vk;k ;kfpuh us ftyk izeq[k ds fuokZpu dks pqukSrh nh gS vkSj mldk vk/kkj okMZ ua- 14 dh lnL;rk dh ;ksX;rk@fu;ksZX;rk dks pqukSrh nh gSA ;kfpuh okMZ ua- 14 ds fuokZpu esa izR;k"kh ugha Fkk fygktk ;kfpuh dks v;kph ds fo:) ;kfpdk nk;j djus dk dksbZ vf/kdkj izkIr ugha gS\ I am of the considered view that the findings of the trial court with regard to issues 5 and 6 is absolutely perverse, in so far as it holds, despite documentary evidence on record showing that the result of the election to ward No.10 of Zila Parishad Bharatpur from where the election petitioner Sulbha contested was declared on 6-2- 2015, that it appeared to have been declared on 7-2-2015. In her cross examination, the election petitioner admitted that she had filed no objection at any time before the District Magistrate with regard 84 to the the certificate of her election being allegedly ante dated to 6- 2-2015 even though the result was declared on 7-2-2015. She also admitted to signing the receipt of the certificate of her election on 6- 2-2015 without recording her objection to the alleged antedating. The trial court has however had for tenuous reasons deviated from the evidence on unawarranted inferences based on the enquiry report (Ex.20 to Ex.24) relating to the generality of delays in the declaration of results of the ward elections in Zila Parishad Bharatpur without any specific finding qua ward No.10. Further the trial court has also committed a perversity on placing reliance on the fact of declaration of result of ward No.7 at 5.30 AM on 7-2-2015 to extrapolate therefrom and assume that the result of ward No.10 from which the RC Beena Singh contested was also so declared on 7- 2-2015 and not on 6-2-2015.
I am of the considered view that the generality of delays in the declaration of results in various wards in Panchayat Samiti Weir 85 upto 46 hours from the conduct of election cannot override the specific certificate issued by the District Magistrate to the election petitioner evidencing that the result of ward No.10, from where Sulbha contested, was declared on 6-2-2015.
Aside of aforesaid the trail court has not adverted to any provision of the Act of 1994 or Rules of 1994, or notification issued by the State Election Commission whereunder election for the post of Zila Pramukh was to be mandatorily held after a hiatus of 24 hours from declration of result of ward members. Mr. Kamlakar Sharma fairly admitted that no such notification was relied upon or exhibited before the Trial Court. Mr. J.M. Saxena, AAG as required, filed affidavit of N.K. Gupta, Collector Bharatpur stating therein that there was no order, circular/ instruction of the State Election Commission directing that the election to the post of Zila Pramukh would be held only subsequent to 24 hours following the declaration of the result of ward members. The trial court has thus 86 committed a perversity on this count in adverting as it did to the purported notification to hold Zila Pramukh election only 24 hours following declaration of result of ward members. The election notification for election to the post of members of ward and for Zila Pramukh also does not evidence any such requirement of a gap of 24 hours in holding election of Zila Pramukh after declaration of result of ward members. The finding of the trial court on issue No.5&6 are therefore liable to be set aside. It is well settled that elections--the manner of their holding and and challenges thereto are purely statutory in nature with no element of common law. In the circumstances the election of the RC as Zila Pramukh Bharatpur could only have been be set aside on grounds statutorily provided. I am of the considered view that the findings of the trial court with regard to issues No.5 and 6 are liable to be quashed and set aside. So quashed.
Issues No.7 and 10 have been decided by the trial court against the election petitioner and in favour of the RC. No challenge 87 thereto emanates from the election petitioner. Resultantly the said findings attain finality.
With regard to issues No.11 and 18 decided by the trial court in favour of the election petitioner and against the RC, I am of the considered view that the findings of the trial court thereon are absolutely without legal foundation and in fact in the cross-hair of Section 43(1) of the Act of 1994. Election petitioner Sulbha was not a candidate/ contestant in the election for member of ward No.10, Zila Parishad Bharatpur. Resultantly in terms of Section 43(1) of the Act of 1994, which provides that an election under the Act or Rules thereunder may be called in question by a candidate who contested, Sulbha could not have challenged or questioned the election of RC as member of Ward No.10 in her challenge to the RC's election as Zila Pramukh of Zila Parishad Bharatpur. Aside of the above, the objection in Sulbha's election petition as to incomplete information furnished by the RC in form 4(d) of the Rules of 1994 and affidavit 88 annexed thereto related to the form/ affidavit submitted contesting the election for the post of member of ward No.10 Zila Parishad, Bharatpur and the said form/ affidavit did not relate to election for the post of Zila Pramukh, in which the election petitioner was a candidate and aggrieved of the result. The trial court has thus completely misdirected itself in law in deciding the said issues in favour of the election petitioner-Sulbha and against the RC. The said findings on issues No.11 and 18 are thus liable to be quashed and set aside. They are so.
With regard to issue No.14, I am of the considered view that as the election petitioner Sulbha contested the election for the post of Zila Pramukh, despite her not getting a single vote in the said election, in view of Section 43(1) of the Act of 1994 she was entitled to lay a challenge to the election of the RC as Zila Pramukh Bharatpur. However, this conclusion is only of academic interest but of no avail to the election petitioner in view of the fact that this court 89 has found that the election of the RC either as member of ward No.14 or thereafter as Zila Pramukh Bharatpur was not vitiated either on the ground of her allegedly not being ordinarily resident of village Pidawali (in view of such a ground not being available in an election petition) or for reason of her nomination form to contest the election as member of ward No.10 being improperly accepted--as alleged.
Consequently the impugned judgment dated 16-1-2017 in election petition No.166/2016 filed by Sulbha Sinsinwar stands dismissed.
The petitions stand allowed accordingly.
(Alok Sharma), J.
arn/ 90 All corrections made in the order have been incorporated in the order being emailed.
Arun Kumar Sharma, Private Secretary.