Delhi High Court
Dr. Narottam Mishra vs Election Commission Of India & Ors. on 16 July, 2017
Equivalent citations: AIR 2017 DELHI 182, (2017) 242 DLT 346
Author: S. Muralidhar
Bench: S. Muralidhar, Prathiba M. Singh
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
1
+ LPA NO.480/2017
DR. NAROTTAM MISHRA ..... Appellant
Through: Mr. Mukul Rohatgi, Senior Advocate
with Ms. Vanshaja Shukla, Mr. MPS
Raghuwanshi and Mr. Devendra
Choubey, Advocates
versus
ELECTION COMMISSION OF INDIA & ORS. ..... Respondents
Through: Mr. Amit Sharma, Adv. for CI/R-1/2
Mr.Vivek Tankha, Senior Counsel
and Mr. Mukul Gupta, Sr. Advs. with
Mr. Varun Chopra, Mr. Varun
Tankha, Mr. Tushar Gupta, Mr.
Naman Joshi, Mr. Yashvardhan Oza,
Mr. Sandeepan, Mr. Aman
Nandrajog, Mr. Sumeer Sodhi,
Advocates
Mr. Sumit Mishra, Advocates for R-3.
CORAM:
JUSTICE S. MURALIDHAR
JUSTICE PRATHIBA M. SINGH
ORDER
% 16.07.2017 CM No.24867/2017 (exemption) Allowed, subject to all just exceptions.
CM No. 24868/2017 (permission to file complete record of the case) For the reasons stated therein, the application is allowed.
LPA No.480/2017 Page 1 of 25LPA No._______/2017 (to be numbered)
1. Admit. The appeal will be heard on the existing paper book.
2. List for directions before the roster Bench on 28th August, 2017.
CM No.24866/2017 (stay)
3.Notice. Notice is accepted by Mr. Amit Sharma, learned counsel appearing for the Respondent Nos. 1 and 2 and Mr.Vivek Tankha, learned Senior Counsel appearing for the Respondent No.3 Prayers in the application for stay
4. By this application, the Applicant/Appellant seeks the following reliefs:
(i) Ad interim stay of the order dated 14th July, 2017) passed by the learned Single Judge of this Court dismissing the Writ Petition No.5825/2017; and
(ii) for directions that the Appellant, by virtue of the order dated 23 rd June, 2017 passed by the Respondent No.1 - Election Commission of India ('ECI'), disqualifying him for three years from the date of the said order under Section 10A read with Sections 77 and 78 of the Representation of the People's Act, 1951 ('RPA 1951') for failure to lodge his account of election expenses in the manner required by law, "does not stand disqualified from membership of the Madhya Pradesh Legislative Assembly" to which he was elected in 2013, and which, according to the Appellant, was not the subject matter of challenge before the ECI.
Grounds for urgency LPA No.480/2017 Page 2 of 25
5. This is a specially constituted Bench which, on the request of the Appellant, has been directed to hear this matter on urgent basis today, which happens to be a Sunday. The urgency explained by the Mr Mukul Rohatgi, learned Senior counsel for the Appellant for hearing the application today is:
(i) That the elections to the office of the President of India is to take place tomorrow i.e. 17th July, 2017. The Appellant should be permitted to participate and cast his vote as a sitting Member of the Legislative Assembly (MLA) of Madhya Pradesh; and
(ii) The Appellant is presently a Minister for Parliamentary Affairs in the State Cabinet of the Government of Madhya Pradesh. With the Parliament Session beginning tomorrow i.e. 17th July 2017, unless an urgent interim order as prayed for is granted in his favour, he would cease to forthwith function as such.
6. Mr. Rohatgi urged that this Court should hear and decide the application for stay today itself in view of the above urgency.
7. The Court has heard him as well as Mr.Vivek Tankha, learned Senior Counsel appearing on behalf of the Respondent No.3 and Mr. Amit Sharma, learned counsel appearing for the Respondent Nos. 1 and 2.
Background facts
8. The background facts are that the Appellant is an MLA of Madhya Pradesh having been elected in 2013 from the Datia Assembly constituency on the ticket of Bhartiya Janata Party ('BJP'). The Appellant /Applicant has been elected five times as MLA of Madhya Pradesh i.e. 1990, 1998, 2003, LPA No.480/2017 Page 3 of 25 2008 and 2013. He has been a Minister in the Government of Madhya Pradesh since 2005. After his re-election in 2013, he became the Cabinet Minister for Parliamentary Affairs, Water Resources and Public Relations and also a spokesperson of the Madhya Pradesh Cabinet.
9. The Appellant successfully contested the elections for the legislative assembly of Madhya Pradesh in November, 2008 from the Datia constituency. He lodged his account of election expenses with the ECI by disclosing an expenditure of Rs.2,40,827 under Sections 77 of the RPA, 1951. These included the expenditure on renting of vehicles, diesel, oil, rent to municipality and security amount. The Appellant filed an affidavit dated 8th December 2008 in support thereof.
Complaint by Respondent under Section 10 A RPA 1951
10. On 13th April 2009, the Respondent No.3, who was the losing candidate in the November 2008 elections, having contested on the ticket of the Bahujan Samaj Party, submitted a complaint to the ECI together with the complaint of the Madhya Pradesh Congress Committee ('MPCC') alleging that the Appellant had lodged an incorrect account of the election expenses which was not in the manner provided under Sections 77 and 78 of the RPA, 1951 read with Rule 86 to 89 of the Conduct of Election Rules, 1961 ('CER, 1961').
11. Inter alia, Respondent No.3 alleged that the account of the expenses as lodged by the Appellant did not include the expenditure on public meetings, rallies, posters and calendar, vehicles purchased and diesel consumed and, LPA No.480/2017 Page 4 of 25 newspaper advertisements. As regards the last item, the allegation of the Respondent No.3 was that the Appellant had published various advertisements in local newspapers circulated in the Datia Assembly constituency. Respondent No.3 submitted around 35 such newspaper advertisements collected by him. On the basis of the newspapers, date and size of the publications, Respondent No.3 estimated the expenditure incurred by the Appellant thereon to be around Rs.4,79,860. Respondent No.3 alleged that the Appellant had incurred a total expenditure of Rs.13,50,780/- which was in excess its maximum limit of Rs.10 lacs under Rule 90 of the CER 1961 and far in excess of Rs.2,40,827 as disclosed by the Appellant in his account of election expenditure.
12. Respondent No.3 alleged that the Appellant was liable under Section 125A of the RPA 1951 and Sections 199 and 200 of the Indian Penal Code, 1860 for filing false affidavits dated 4th November, 2008 (with the nomination papers) and 8th December, 2008 (with the account of election expenditure) and concealing information therein. The Respondent No.3 sought a disqualification of the Appellant for a period of three years under Section 10A RPA of 1951. In its complaint dated 13 th April, 2009, the MPCC inter alia alleged that the Appellant was liable for violation of Sections 77, 8A and 10A of RPA of 1951 read with Rule 86 to 89 of CER, 1961.
Election petition
13. On the very date of the complaint i.e. 13th April, 2009, the Respondent No.3 filed Election Petition No.226/2012 in the High Court of Madhya LPA No.480/2017 Page 5 of 25 Pradesh, Gwalior Bench, challenging the election of the Appellant under Sections 81 and 100(1)(b) of the RPA of 1951 on the ground of corrupt practice including incurring of election expenditure in excess of the prescribed limit. The said election petition was withdrawn initially by the Respondent No.3 on 29th November, 2012. Later, the Respondent No.3 sought to withdraw the said application. However, it is not necessary to further dwell upon on these facts further for the purposes of the present application.
Proceedings before the ECI
14. On the complaint filed by Respondent No.3, the ECI directed the Chief Electoral Officer ('CEO') of Madhya Pradesh to enquire and submit a report. On 12th August 2009, the ECI received a report from the CEO that the election expenses incurred by the Appellant was accounted for as provided in law and disclosed within time.
15. On 20th May 2012, Respondent No.3 sent another representation to the ECI in which he alleged that 40 news items were published in newspapers at the instance of the Appellant, the expenditure of which was estimated as Rs.6,07,980/- and which expenditure was not disclosed by the Appellant in his account of election expenditure submitted to the ECI. On this complaint, on 20th June 2012, the ECI sent a letter to the District Electoral Officer ('DEO') seeking information whether different newspapers received any payment for publishing the news items as alleged by Respondent No.3. On 25th July, 2012, the DEO sent a report to the ECI stating that editors of the newspapers in which news items had been published denied in writing LPA No.480/2017 Page 6 of 25 having received any money from the Appellant or his agent.
The Committee on Paid News
16. On receiving the documents and accompanying report of the DEO dated 25th July, 2012, the ECI decided to call a meeting of the ECI's National Level Committee on Paid News ('Committee') in order to examine the 42 suspected cases of "paid news" published in Dainik Bhaskar, BRN, Gwalior and other newspapers, This was a eight member Committee comprised of the Additional Director General, DAVP, Government of India, the Additional Director General (News) of All India Radio, a Senior journalist nominated by the Press Council of India, three Principal Secretaries of the ECI, the Secretary of the ECI, and the Deputy Secretary of the ECI as convenor. The Committee held its meetings on 5th and 12th September, 2012 and considered the 42 news items. The Committee made the following observations:
"(i) The items in question appeared nearly daily from 8 th Nov to 27th Nov, 2008 in the five newspapers.
(ii) The news items carried information only about Dr. Narottam Mishra and appeared heavily in his favour. There were features and appeals as well, among these clippings. The news items appeared to read more like an election advertisement for the candidate than a news report.LPA No.480/2017 Page 7 of 25
(iii) One particular news items with same headline appeared on 15 th Nov in Aacharan, on 11th Nov in Nai Duniya and on 9th Nov in Dainik Bhaskar, with the body of the news items, reproduced verbatim.
(iv) News items carried headlines like, 'Vikas ke liya Narottam Mishra ki Jeet Jaroori', 'Narottam Hi Pehli pasand', 'Datia mein Narottam ki jeet lagbhag Sunishchit' - which appeared to heavily promote Dr. Narottam Mishra.
(v) Nearly all the news items appeared without the name of the Reporter.
Most items had 'Bhaskar Impact' or 'Election Special Series', or 'Impact Feature' written at the corner of the item.
(vi) The articles did not refer to any opposition candidate, or his/her campaign and did not carry any content that to supply a balancing perspective."
17. The Committee concluded that all 42 news items were biased, one-sided and aimed at furthering the prospect of the candidate i.e. the Appellant. Some of the report items were advertisements in favour of the Appellant. The Committee held that the reports/news items and advertisements fitted the definition of 'paid news' i.e. "Any news or analysis appearing in any media (Print & Electronic) for a price in cash or kind as consideration" as given by the Press Council of India.
Proceedings in the MP High Court
18. Simultaneous with filing of a final reply to the ECI's notice on 29thJuly, LPA No.480/2017 Page 8 of 25 2013, the Appellant filed a writ petition in the High Court of Madhya Pradesh, Gwalior Bench being Writ Petition No. 6023 of 2013 challenging the notice issued to him by the ECI. The Appellant was permitted to amend the said writ petition to include a specific challenge to the constitutional validity of Section 10A RPA, 1951. Inter alia, the Appellant was permitted to add a ground in the writ petition that the disqualification in terms of Section 10A, for a period of 3 years from the date of order, was ultra vires the Constitution since such an order was likely to be passed "after the expiry of the disputed term" for which the Appellant was elected in 2008. In other words, the Appellant contended that since the complaint pertained to his failure to lodge a proper account of election expenses for the 2008 elections, and since during the pendency of the complaint he had been re-elected, the order under Section 10A should not affect his continuing as an elected MLA during the subsequent period during which he had not committed any illegality.
19. The said writ petition was dismissed by a Division Bench of High Court of Madhya Pradesh, Gwalior Bench on 23rd January, 2015. In para 8 of the said order it was observed by the High Court that "the issues raised by the petitioners by way of amendment i.e. to challenge the validity of section 10A of the RPA is not sustainable, therefore, it is rejected. In view of the aforesaid, the matter does not require to be gone into further by this Court."
20. The above order attained finality since no appeal against it was filed by the Appellant.
LPA No.480/2017 Page 9 of 25Proceedings before the ECI
21. Before the ECI the Appellant raised an issue regarding the maintainability of a complaint under Section 10A of the RPA 1951 even while an election petition filed by the complainant raising an identical ground was pending consideration. The said preliminary objection was negatived by the ECI by a detailed order dated 18th March, 2015.
22. For the purposes of this order, it is not necessary to dwell upon the facts concerning the pendency of the complaint before the ECI and what was the factor that to be complaint be ultimately be disposed of by ECI on 23rd June, 2017 more than 8 years after it was made. It may be noted that although the Appellant had urged this issue before the learned Single Judge, Mr Rohatgi did not raise it before this Court for the purposes of the present application.
23. What however requires to be noted is that there were 49 sittings of the ECI before the complaint of Respondent No3 was disposed of. The Appellant in the course of proceedings submitted before the ECI a list of 18 witnesses whom he wishes to examine. Te ECI permitted him to examine four witnesses including himself. Respondent No.3 examined himself in support of his complaint.
24. The evidence of the witnesses was recorded by the ECI on several dates between 9th July, 2015 and 6th September, 2016. There was cross examination of the witnesses of both parties. The ECI then heard the arguments of both the parties on 21st October 2016, 28th November 2016, LPA No.480/2017 Page 10 of 25 9th January 2017 and 17th March, 2017. Written arguments were also submitted by both the parties.
The order of the ECI
25. The ECI passed a detailed 69 pages order on 23rd June, 2017. The issues framed by the ECI for consideration were as under:
"(i) Whether the news articles, 'appeals' with photographs of the respondent, advertisements etc. in various newspapers namely, Dainik Bhaskar, Nai Duniya, Dainik Datia Prakash, Acharan Gwalior and B.P.N. Times, published during the election process in Datia Constituency, amount to "paid news"/advertisements in connection with the election of the respondent?
(ii) Whether the expenditure on the alleged publications has been incurred/authorized either by the respondent or by his election agent or by any other person with direct or implied consent or knowledge of the respondent or his election agent within the meaning of Section 77 of the Representation of the People Act, 1951.
(iii) Whether the expense incurred/authorised in such publications are included in the account of election expenses lodged by the respondent?
(iv) Whether the respondent has failed to lodge the true and correct account of election expenses as required by and under the law?
(v) Whether the respondent has good reason or justification for such failure to lodge his account of election expenses in the manner as required under the law?
(vi) Whether the respondent is liable to be disqualified by the Election Commission of India under section 10A read with section 77 and 78 of the RP Act, 1951?"
26. The conclusions of the ECI on the above issues was as under:
LPA No.480/2017 Page 11 of 25"(i) The first news item was published along with a photograph of Dr. Narottam Mishra, Shri Shivraj Singh Chauhan and the party symbol of Bhartiya Janata Party. Also the content of the news item mentioning the words "Main Dr. Narottam Mishra....." clearly shows that the appeal was published by the respondent himself to influence people in the Constituency to vote in his favour. Similarly, the second and third news items, which were published on the poll day itself along with photograph of Dr. Narottam Mishra, wherein the contents mentioning the words "Main aapse vinamrata se karbaddh nivedan karta hun....." manifest the same. The third news item also ends with the words "Aapka Dr. Narottam Mishra, Bhajpa Pratyashi Vidhan Sabhan kshetra 22" and strongly suggest its publication by the respondent himself.
(ii) The phrases "Main Dr. Narottam Mishra...." and "Main aapse vinamrata se karbaddh nivedan karta hun...." along with a photograph of Dr. Narottam Mishra and the party symbol of Bhartiya Janata Party place a situational exposition where the respondent cannot contend that the above news item was not published by him or his election agent.
(iii) The respondent had given his implied authorization for the publication of the advertisements in question and had knowingly taken advantage of the same. The respondent cannot validly claim ignorance of the publication of the alleged items and has failed to expressly disavow any involvement in the same despite that the fact that the publications of the above mentioned "direct appeals" in his name, containing his photograph, published on the day of the poll, on 27th November, 2008, also constitute an offence under Section 171H of the Indian Penal Code, 1860. Moreover, in his account of election expenses, the respondent has left the column on "campaign through electronic/print media" blank. Accordingly, the Commission has decided that the respondent had knowledge of, and impliedly authorized publication of the impugned advertisements within the meaning of section 77 of the Representation of People Act, 1951.
(iv) Expenditure incurred/authorized on the impugned publications have not been included in the account of election expenses lodged by LPA No.480/2017 Page 12 of 25 the respondent.
(v) The respondent has failed to lodge a correct and true account of his election expenses as required by and under the law. The respondent has no good reason or justification for his failure to lodge his account of election expense in the manner as required under the law.
(vi) Irrespective of whether the alleged expenditure when added to the respondent's reported account, breaches the permissible limit or not, the fact remains that the respondent has not only knowingly submitted a false account of expenses, but also attempted to circumvent the legally prescribed limit on expenditure. Such attempts need to be curbed with strong measures and visited with exemplary sanctions and restore the balance in the electoral playing field. Therefore, the Commission is of the considered view and holds that the respondent Dr. Narottam Mishra, should be disqualified under Section 10A of the RP Act, 1951."
27. The ECI accordingly declared that the Appellant stood disqualified for three years from the date of its order under Section 10A read with Sections 77 and 78 of the RPA, 1951 "for failure to lodge his account of election expenses in the manner required by the law and for having no good reason or justification for such failure."
Order of the learned Single Judge
28. The above order was challenged by the Appellant before the High Court of Madhya Pradesh, Gwalior by filing Writ Petition No.3875 of 2017. By an order dated 12th July, 2017 in SLP (Civil) No.17608 of 2017 the Supreme Court transferred the said writ petition to this Court.
29. In terms of the order of the Supreme Court a leaned Single Judge of this LPA No.480/2017 Page 13 of 25 Court heard the writ petition on 13th July, 2017. By the impugned judgment dated 14th July, 2017, the learned Single Judge dismissed the said writ petition (renumbered as W.P.(C) No.5825 of 2017) holding as under:
(i) There was no delay on the part of the ECI in disposal of the complaint. The delay, if any, was brought about by the Appellant.
(ii) The onus was the candidate to rebut the presumption that expenditure incurred for the election had, for the purposes of Section 77 of the RPA, 1951 been incurred either by him or his agent or authorized by him. The finding returned by the ECI on facts that the news items in question were to the advantage of the appellant and was published at his behest was not rebutted by leading any such evidence. The holding of the ECI that there was implied authorization by the appellant to publish the said news items was thus a fair finding. The decision in Ashok Shankarrao Chavan v. Madhavrao Kinhalkar (2014) 7 SCC 99 was followed.
(iii) The judgment of the Supreme Court in Dhartipakar Madanlal Agarwal v. Rajiv Gandhi 1987 Supp SCC 93 was in the context of a petition to set aside an election. The language of Section 10A of the RPA, 1951 was clear. It mandated that the disqualification incurred by a candidate had to be from the date of the order.
Submissions on behalf of the Appellant
30. Mr. Mukul Rohatgi, learned Senior counsel for the appellant submitted LPA No.480/2017 Page 14 of 25 as under:
(i) The Appellant had led positive evidence to show that the Appellant had not authorized the publication of the so called 'paid news'. There was no evidence to show that the expenditure on the paid news was by the Appellant or his agent or even by the party. Consequently, for the purposes of section 77 (1) of the RPA, 1951 there was no evidence on the basis of which the ECI could have come to a conclusion that it is the Appellant who had got the so-called 'paid news' published. Therefore, the question of failure to include such expense in the accounts submitted to the ECI for the November, 2008 election did not arise. Reliance was placed on the decision in Ram Dayal v. Brijraj Singh (1969) 2 SCC 218to urge that it is not enough to show that the news item was for the benefit of the Appellant. It had to be established that it the expenditure was in fact incurred by him or by his election agent.
(ii) The ECI had erred in relying on the decision in Kanwar Lal Gupta v.
Amar Nath Chawla (1975) 3 SCC 646 as the said judgment had been expressly overruled by the decision in Indira Nehru Gandhi v. Raj Narain (1975) Supp SCC 1. It had been categorically held in the latter judgment that "expenditure must be by the candidate himself and any expenditure in his interest by others (not his agent within the meaning of the term of the Election Laws) is not to be taken note of." It was further held that "It is not enough that some advantage accrued or expenditure was incurred within the knowledge of the candidate." This was reiterated in Gajanan Krishnaji Bapat v. Dattaji Raghobaji Meghe (1995) 5 SCC
347. LPA No.480/2017 Page 15 of 25
(iii) Mr. Rohatgi referred to the definition of the 'disqualified' occurring in Section 7 (b) of the RPA, 1951. He pointed out that the disqualification under Section 10A would have to be relevant to the period during which the Appellant was an MLA pursuant to the November, 2008 elections. The said disqualification would not apply to the current period that he was an MLA i.e. after being re-elected in 2013. In support of this submission, reliance is placed on the decision in Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi (supra) and in particular para 4 thereof. Referring to Article 190(3) read with Section 191 (1) (e) of the Constitution of India, Mr Rohatgi submitted that the ECI wrongly understood the disqualification to be applicable to the current period of the Appellant being an MLA.
Submissions on behalf of Respondent No.3
31. Countering the above submissions, Mr Vivek Tankha, learned Senior Counsel appearing for the Respondent No.3 submitted that pursuant to the impugned order of the of the ECI, the name of the Appellant had already been removed from the voters' list. In other words, the disqualification had already taken effect. Therefore, this Court cannot and ought not pass an interim order that would restore the status quo ante the disqualification. That would amount to allowing the appeal itself and granting final relief.
32. Mr Tankha questioned the urgency in entertaining this application and submitted that the Appellant's vote in the Presidential election which is to take place tomorrow would not be material and was an insufficient LPA No.480/2017 Page 16 of 25 justification for passing an ad interim order. Mr. Tankha pointed out that the plea that the disqualification under Section 10A would not affect the Appellant's current tenure as MLA already stood negated when his election petition challenging the constitutional validity of Section 10A was dismissed by the Division Bench of the Madhya Pradesh High Court. The said petition was amended to include the above ground. The order dismissing the said writ petition had attained finality.
33. Mr Tankha submitted that the decision in Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi (supra) was rendered in the context of an election petition and would not apply to an adjudication by the ECI under Section 10A of the RPA, 1951. Whereas the election petition questioned the conduct of a successful candidate in the period up to the completion of the election process, the subject matter of a petition under Section 10A was his conduct post election. Whereas in the former instance, Section 77(3) of the RPA of 1951 would be relevant, in the latter Sections 77(1) and 77(2) of the RPA 1951 applied. According to Mr Tankha Section 10A of the RPA of 1951 was unambiguously clear that the disqualification would begin to take effect from the date of the order of the ECI and continue for a period of three years thereafter.
34. According to Mr Tankha, there were different kinds of disqualifications. The present one was a statutory disqualification which became effective immediately upon the disqualification being declared. He referred to the decision in ECI v Bajrang Bahadur Singh (2015) 12 SCC 570.
LPA No.480/2017 Page 17 of 2535. Mr. Tankha referred to the passages in Ashok Shankarrao Chavan v. Madhavrao Kinhalkar (supra) to point out that the standard of proof in proceedings under Section 10A of the RPA of 1951 was preponderance of probabilities whereas it was of a higher standard as far as an election petition is concerned. He pointed out that the ECI had held 59 hearings, permitted the leading of evidence by examination and cross examination of witnesses and thereafter had come to a factual finding which had been concurred with by the learned Single Judge. He accordingly submitted that there was no prima facie case made out by the Appellant for grant of any interim order and the application be dismissed.
Analysis and reasons
36. There is a mandatory requirement under Section 78 of the RPA 1951 for every contesting candidate to lodge with the district election officer within thirty days from the date of election of the returned candidate an account of his election expenses which shall be a true copy of the account kept by him or his election agent under Section 77. The manner of keeping such account of election expenses is provided in Section 77 (1) of the RPA 1951. The requirement is in respect of expenditure that has been incurred or authorised by him or by his election agent".
37. The failure to lodge such account of expenses "within the time and in the manner required by or under this Act" together with the failure to provide "good reason or justification for the failure" as provided under Section 10 A of the RPA 1951 results in the ECI declaring him "to be disqualified for a period of three years from the date of the order."
LPA No.480/2017 Page 18 of 2538. Section 7 (b) of the RPA 1951 defines the word "disqualified" to mean "disqualified for being chosen as, and for being a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State." Therefore the disqualification is both in futuro (for being chosen as) as well as in praesenti (for being a member). It prima facie appears to the Court that the provision does not restrict the disqualification, in the case of a sitting MLA to a past period in relation to which when the event complained of occurred or get postponed to a future period when such MLA may be chosen as such. That is plain from a reading of Section 10 A itself. The period of three years begins to run from the date of the ECI's order.
39. Even if a person has been elected thereafter in a subsequent election for a subsequent term, the fact that the statutes uses the words `from the date of the order' clearly establishes that the legislative intent is to give effect to the disqualification from the said date. Any other interpretation would render the provision non est. The disqualification cannot be postponed, just because the person has been re-elected for a subsequent term. If such an interpretation is accepted that it should come into effect after the current term of the petitioner comes to an end, then it may result in `indefinite postponement' of the order passed under Section 10A which is contrary to the express wording and legislative intent.
40. In ECI v. Bajrang Bahadur Singh (supra), the Supreme Court interpreted Section 10 A of the RPA 1951. The Court observed "The removal takes place by virtue of the operation of law on the happening of LPA No.480/2017 Page 19 of 25 the event, that is, the acquisition of a disqualification." It was explained:
"29. It can be seen from the language of the sub-section (3) that if a member of a House of the Legislature becomes subject to any of the disqualifications mentioned in clause(1) or clause (2) of Article 191, his seat shall thereupon become vacant. In other words, the vacancy occurs the moment a person incurs the disqualification by operation of law. The duration of the currency of the disqualifying EVENT is irrelevant. While Article 191 deals with the disqualifications for two classes of people (I) those who are aspiring to be the members of the Legislature (ii) those who are already Members of the Legislature, Article 190(3) deals only with the vacation of the seats by the members of the Legislature - therefore, applicable only to the 2nd of the two classes covered by Article 191. Acquisition of a disqualification contemplated under Article 191 is an incident which entails a legal consequence of rendering the seat (occupied by such a Legislator who acquired the disqualification) vacant by operation of law. Article 192 only prescribes the forum and stipulates the procedure for determination of the fact whether a Legislator has incurred the disqualification. As pointed out by this Court in Narasimha Rao's case (supra), Article 192 does not provide for removal of a member from the Legislature by an action of the Governor. The removal takes place by virtue of the operation of law on the happening of the event, that is, the acquisition of a disqualification. The fact that the disqualification under Section 9A subsists only for a limited period of time in our view makes no difference to the consequences flowing from the occurrence of such disqualifying EVENT.
30. Each one of the events contemplated under the various clauses of Article 191(1) can subsist for a limited period of time depending upon the facts and circumstances of the case. For example, under clause(a), the holding of office of profit specified therein renders a person disqualified. Goes without saying, the tenure of such an office of profit may differ from case to case. Under clause (b), a person who is of unsound mind and stands so declared by a competent Court is disqualified. The event which renders a person disqualified has two components in it. (i) a person must be of unsound mind and (ii) stands LPA No.480/2017 Page 20 of 25 so declared by competent Court. It is only on the happening of both the events, such a person becomes disqualified. But there is nothing in nature that a person who is of unsound mind and declared so by a competent Court need to continue in the same state of mind forever. It is possible in some cases that with appropriate medical treatment, that unsoundness of mind could be cured and on proof of the same, an appropriate declaration from the competent Court revoking the earlier declaration can always be obtained upon such declaration, the disqualification ceases. So is the case of status of undischarged insolvency and citizenship of India. The citizenship status of a person can change from time to time.
31. In all the above-mentioned situations on the happening of the disqualifying EVENT, a Legislator ceases to be Legislator and his seat falls vacant by operation of law but not because of any declaratory adjudication. Article 192 does not contemplate the Governor making a declaration that the seat has fallen vacant. It only obligates the Governor to decide whether a Legislator has incurred anyone of the disqualifications mentioned in clause(1) of Article
191.The vacancy occurs by virtue of constitutional declaration contained in Article 190 clause(3) which we have already noticed."
34. Therefore, now it is a settled proposition of law that the happening of any one of the disqualifying EVENTS has the effect of making the seat occupied by such a disqualified person vacant immediately by operation of law. The effect of the decision of the Governor under Article 192 is only to decide whether a legislator acquired the disqualification on a particular date on the happening of one of the disqualifying EVENTS contemplated under Section 191. The consequence is that the legislator who acquires the disqualification ceases to be a Member of the Legislature with effect from the date of the acquisition of the disqualification.
35. We have already noticed that there are two classes of disqualification contemplated under Article, (i) disqualifications which last only for a limited period that is, during the currency of certain events specified under Article 191, (ii) statutory disqualifications prescribed under Section 8, Section 8A, Section LPA No.480/2017 Page 21 of 25 9 and Section 10A which render a person ineligible for a period specified under each of the above-mentioned provisions. The disqualifications under Sections 9A and 10 of the Act are akin to the disqualifications contemplated under clauses (a) to (d) of Article 191(1) where the period of disqualification is co-terminus with the currency of the event which renders a person ineligible both for being chosen as or for being a Member of the Legislature. Nonetheless on the acquisition of the disqualification by a legislator, he ceases to be a legislator forthwith by operation of law. However, the cessation of the disqualifying factor cannot put such a person back in the legislature without his being elected once again, of course such person is entitled to contest any election under the R.P. Act, the moment the disqualifying factor ceases to exist as the disqualification is co- terminus with the disqualifying EVENT."
41. The decision in Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi (supra) was in the context of an election petition where the ground of challenge was corrupt practice covered by Section 8-A of the RPA 1951. There was no occasion for the Court to discuss or deal with Section 10 A of the RPA 1951 in the context of Sections 77 (1) and 77 (2) of the RPA 1951. After the decision in ECI v. Bajrang Bahadur Singh (supra), however, there remains no doubt that the order of disqualification under Section 10-A operates eo instanti, i.e., `from the date of the order'. This is also fortified also by the wording of Article 191 of the Constitution which is also worded in identical terms as Section 10-A i.e., by use of the words `for being chosen' and `for being'. Any other interpretation would result in adding words to a provision, which this Court cannot do.
42. There is another dimension to the term `from the date of the order'. The reason for this specificity in the statute is to ensure that the representative of the people continues to hold office until the disqualification occurs and LPA No.480/2017 Page 22 of 25 protects all acts done by him in the performance of his functions as an elected representative until the disqualification, if any, happens. Moreover, the Court cannot be unmindful of the possibility of delay in disposal of complaints by the ECI for a variety of reasons including judicial interventions. That however, cannot mean that orders that are passed relating to disqualification would never be given effect to, if the candidate has been re-elected meanwhile in a subsequent election. That would frustrate the legislative object of Section 10 A of the RPA 1951 and make it unworkable. The legislative intention behind these provisions being that of preserving the sanctity of the election process, the provision has to be given full effect to. The term `from the date of the order' has to mean what it says and nothing less or nothing more.
43. Therefore, the Court prima facie does not find merit in the contention of Mr Rohatgi that the impugned order of the ECI would not affect the Appellant's current tenure as MLA. The attendant consequences of the disqualification under Section 10 A of the RPA 1951 would follow.
44. The other aspect relates to the standard of proof in complaints arising under Section 77 (1) and (2) read with Section 10 A of the RPA 1951. In this context the following passage in Ashok Shankarrao Chavan v. Madhavrao Kinhalkar (supra) clearly supports the view of the ECI, as approved by the learned Single Judge, that the standard is that of preponderance of probabilities:
LPA No.480/2017 Page 23 of 25"94. In the first place, the enquiry to be held under Section 10A is not to examine any allegation of corrupt practice falling under Section 123 of the Act. The only area of examination to be made in an enquiry under Section 10-A is with regard to the lodging of the account of election expenses and whether such lodgement was done in the manner and as required by or under the act. In the second place, when such an enquiry is held, the scope would be as contained in sections 77 (1) and (3) as well as section 78. The said provisions require a contesting candidate to maintain a true and correct account of the election expenses to ensure that such expenses are within the limits prescribed under the Act and that a copy of such statement of accounts is filed within the time prescribed under Section 78. When it comes to the question of a corrupt practice under Section 123, it is needless to state that the scope of examination of the said issue would be within the four corners of an election petition, as has been prescribed in chapter I of Part VI of the Act to Chapter V of the Act. At the risk of repetition it will have to be reiterated that the enquiry under Section 10A would be more or less of a civil nature and therefore, the principles of preponderance of probabilities alone would apply and it is relevant to note that even after the order of disqualification, if any, is passed under Section 10A, after following the requirement of issuance of show cause notice, receipt of reply, etc, there is a further remedy available to the contesting candidate under Section 11 by which the aggrieved candidate can demonstrate before the Election Commissioner as to how the order of this qualification cannot stand and that it has to be varied. Even if by invoking section 11 the aggrieved candidate is not able to get his grievance redressed, the constitutional remedy under Articles 32 and 226 of the Constitution is always available to question the correctness of any order that may be passed by the Election Commission under Sections 10A and 11 of the Act." (emphasis supplied)
45. In light of the above settled legal position the Court is at this stage prima facie of the view that the conclusions reached by the ECI on facts cannot be said to be based on no evidence or perverse. Nothing more need be said at this stage. Suffice to conclude that no ground is made out for grant of any of LPA No.480/2017 Page 24 of 25 the interim reliefs as prayed for.
Conclusion
46. For the aforementioned reasons, the application is dismissed. The observations in this order are prima facie in nature and will not influence the final decision in the appeal.
47. Dasti to the parties under the signature of the Court Master.
S. MURALIDHAR, J.
PRATHIBA M. SINGH, J.
JULY 16, 2017 rd LPA No.480/2017 Page 25 of 25