Delhi High Court
Nand Kishore Garg vs Jitender Singh Tomar & Ors on 21 September, 2016
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 21st September, 2016
+ EL.PET. No.2/2015
NAND KISHORE GARG ..... Petitioner
Through: Mr. Alok Kumar, Mr. Yashvir Sethi,
Mr. Abhishek Paruthi, Mr. Amit
Kumar Singh, Mr. Praveen Sharma
and Ms. Shreya Verma, Advs.
Versus
JITENDER SINGH TOMAR & ORS ..... Respondents
Through: Mr. Amarjit Singh Chandhiok, Sr.
Adv. with Mr. Ashok Chapparia, Ms.
Sweta Kakkad, Ms. Aneena Sharm,
Mr. Pankaj Agarwal and Mr. Ranjeet
Pandey, Advs. for R-1.
Mr. Satyakam and Mr. Naveen
Jakhar, Advs. for R-15.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
IA No.17167/2015 (of the respondent no.1 under Section 151 CPC).
1. The counsel for the respondent no.1/applicant states that this
application though filed under Section 151 of the Code of Civil Procedure,
1908 (CPC) be treated as one under Order VII Rule 11 of the CPC.
2. The application seeks summary dismissal of the Election Petition as
having been filed in abuse of the process of law and alternatively seeks
deferment of hearing of this Election Petition in view of pendency of
EL.PET. No.2/2015 Page 1 of 15
W.P.(C) No.1056/2015 and till the disposal of criminal proceedings in
relation to First Information Report (FIR) No.605/2015.
3. The counsel for the respondent no.1/applicant has not addressed any
arguments. After hearing the counsel for the petitioner/non-applicant and by
referring to my judgment in Nand Ram Bagri Vs. Jai Kishan 200 (2013)
DLT 402 and against which no appeal appears to have been preferred, the
application was dismissed. However subsequently the senior counsel for the
respondent no.1/applicant mentioned the matter and sought an opportunity to
argue and was permitted to argue on the following day. After completion of
the hearing, this order is being released on 7th November, 2016 though dated
21st September, 2016.
4. The petitioner/non-applicant, being the unsuccessful candidate in the
election from Tri Nagar Constituency of Delhi Legislative Assembly in the
polls held on 7th February, 2015 has filed this petition seeking setting aside
of the result of the election declaring respondent no.1/applicant successful,
on the ground of the respondent no.1/applicant having falsely declared
himself at the time of filing nomination as a Law Graduate.
EL.PET. No.2/2015 Page 2 of 15
5. The respondent no.1/applicant, as aforesaid, by this application seeks
summary dismissal of the Election Petition and in the alternative deferment
of the hearing thereof pleading (i) that furnishing of wrong information with
the nomination form does not constitute a ground for setting aside of the
election; (ii) that there is no material on record to show that the result of the
election was materially affected by the declaration, even if wrong; (iii) that
the respondent no.1/applicant in an earlier election also had declared himself
to be a Law Graduate and though the petitioner/non-applicant had contested
against the respondent no.1/applicant in that election also but not raised any
objection; (iv) that on similar grounds W.P.(C) No.1056/2015 filed by some
other person is pending; (v) that on similar grounds FIR No.605/2015 of
Police Station Hauz Khas, New Delhi has been lodged against the
respondent no.1/applicant and the investigation is underway; and, (vi) that
proceedings in this petition before the investigation and prosecution if any
culminates would cause serious prejudice to the respondent no.1/applicant.
6. I have in Nand Ram Bagri supra held (i) that the contention, that the
only consequence of falsehood, misrepresentation and suppression in the
affidavit in Form 26 filed along with the Nomination Form can be under
Section 125A of the Representation of People Act, 1951 (RP Act) i.e. of
EL.PET. No.2/2015 Page 3 of 15
attracting punishment with imprisonment as provided therein, cannot be
accepted; (ii) that the reason which prevailed with the Supreme Court in
Union of India Vs. Association for Democratic Reforms (2002) 5 SCC 294
for requiring such disclosure was not to punish a candidate for wrong
disclosure but to vest the voters with a right to elect on the basis of
antecedents, past performance, educational qualifications etc. of a candidate
and all which was held to be essential for the health of democracy and fair
election and to maintain purity of elections; (iii) logically, if the disclosure is
false, the election in pursuance thereto would be an impure one; (iv) that it
thus cannot be sustained that the only consequence of an impure election is
to punish the elected candidate with imprisonment, while allowing him to
continue as the elected representative; (v) to hold so would again, applying
the reasoning given by the Supreme Court in Association for Democratic
Reforms supra, would be bad for the health of democracy and fair elections;
(vi) that the common theme running in Section 123 of the RP Act defining
corrupt practices on commission whereof by a returned candidate an election
under Section 100(1)(b) of the RP Act becomes void, is of interference with
the fair choice to be made by the electorate; (vii) it is for this reason that
bribery and exercise of undue influence have been deemed to be corrupt
EL.PET. No.2/2015 Page 4 of 15
practice; (viii) furnishing of wrong information would res ipsa loquitur be
undue influence within the meaning of Section 123(2) of the RP Act; (ix)
that the argument that there being no corresponding change in Section 100
or Section 123 of the RP Act pursuant to the amendments of the year 2002 in
the RP Act and the Conduct of Elections Rules, the violation of the said
amendments would not be a ground for declaration of a election to be void is
to be noted to be rejected; (x) the contention before the Supreme Court in
Association for Democratic Reforms, that till suitable amendments are
made in the RP Act and the Rules, directions should not be issued and that it
is for the political parties to decide whether such amendments should be
brought and carried out in the RP Act and the Rules which nowhere
disqualify a candidate for non disclosure and that the directions would thus
be of no consequence, was negatived and it was held that courts have ample
powers to make orders which have the effect of law and if need be by
issuing necessary directions, to fill the vacuum, till such time the Legislature
steps in to cover the gap; (xi) it was further held that the members of a
democratic society should be sufficiently informed so that they may take
intelligently, the decisions which may affect themselves and this would
include their decision of casting votes in favour of a particular candidate and
EL.PET. No.2/2015 Page 5 of 15
that disclosure by the candidate of such information would strengthen the
voters in taking appropriate decision of casting their votes; (xii) to accept
that a falsity, suppression or misrepresentation in the disclosure would not
affect the outcome / result of a election would defeat the very purpose of the
vital change brought about by Association for Democratic Reforms and
would render the said judgment otiose and hollow; (xiii) that it is virtually
impossible to adjudicate the effect of such
falsehood/misrepresentation/suppression; and, (xiv) that unless the effect of
falsehood is read into Section 100 and Section 123, the amendment of the
RP Act and the Rules would remain impotent.
7. Supreme Court since then in Kisan Shankar Kathore Vs. Arun
Dattatray Sawant (2014) 14 SCC 162 has held that when the information is
given by a candidate in the affidavit filed along with the nomination paper
and objections are raised thereto questioning the correctness of the
information or alleging that there is non-disclosure of certain important
information, it may not be possible for the returning officer at that time to
conduct a detailed examination; summary enquiry may not suffice; it would
thus not be possible for the Returning Officer to reject the nomination for
want of verification of the allegations made by the objector; in such a case,
EL.PET. No.2/2015 Page 6 of 15
when ultimately it is proved that it was a case of non-disclosure and either
the affidavit was false or it did not contain complete information leading to
suppression, it can be held at that stage that the nomination was improperly
accepted; once it is found that it was a case of improper acceptance, as there
was misinformation or suppression of material information, one can state
that question of rejection in such a case was only deferred to a later date;
when the Court gives such a finding, which would have resulted in rejection,
the effect would be same, namely, such a candidate was not entitled to
contest and the election is void. It was also held that otherwise, it would be
an anomalous situation that even when criminal proceedings under Section
125A of the RP Act can be initiated and the selected candidate is criminally
prosecuted and convicted, but the result of his election cannot be questioned
- this cannot be countenanced.
8. Supreme Court again had occasion to deal with the said question in
Krishnamoorthy Vs. Sivakumar (2015) 3 SCC 467 and held (i) that the
right to contest an election is a plain and simple statutory right and the
election of an elected candidate can only be declared null and void, regard
being had to the grounds provided in the statutory enactment; (ii) the ground
of 'undue influence' is a part of corrupt practice under Section 123 of the
EL.PET. No.2/2015 Page 7 of 15
RP Act; 'undue influence' is a facet of corrupt practice; (iii) Section 123(2)
of the RP Act defines 'undue influence', more or less, in the same language
as in Section 171-C of the Indian Penal Code, 1860 except the words "direct
or indirect" which have been added into the nature of interference; (iv) the
principles pertaining to 'undue influence' are required to be appreciated
regard being had to the progression of the election law, the contemporaneous
situation, the prevalent scenario and the statutory content; (v) the basic
concept of "undue influence" relating to an election is voluntary
interference or attempt to interfere with the free exercise of electoral right;
(vi) an act which is calculated to interfere with the free exercise of electoral
right, is the true and effective test whether or not a candidate is guilty of
'undue influence'; (vii) free exercise of electoral right has a nexus with
direct or indirect interference or attempt to interfere; (viii) if there is any
direct or indirect interference or attempt to interfere on the part of the
candidate, it amounts to 'undue influence'; (ix) concept of 'undue influence'
applies at both the stages, namely, pre-voting and at the time of casting of
vote; (x) factum of non-disclosure of the requisite information as regards the
criminal antecedents is a stage prior to voting; (xi) the sanctity of the
electoral process imperatively commands that each candidate owes and is
EL.PET. No.2/2015 Page 8 of 15
under an obligation that a fair election is held; (xii) undue influence should
not be employed to enervate and shatter free exercise of choice and
selection; (xiii) freedom in the exercise of judgment which engulfs a voter's
right, a free choice, in selecting the candidate whom he believes to be best
fitted to represent the constituency, has to be given due weightage; the
requirement of disclosure, especially of criminal antecedents, enables a voter
to have an informed and instructed choice; (xiv) if a voter is denied the
acquaintance to the information and deprived of the condition to be apprised
of the entire gamut of criminal antecedents relating to heinous or serious
offences or offence of corruption or moral turpitude, the exercise of electoral
right would not be an advised one - he will be exercising his franchisee with
the misinformed mind - the fundamental right of the voter to know also gets
nullified; (xv) the attempt has to be perceived as creating an impediment in
the mind of a voter, who is expected to vote to make a free, informed and
advised choice; (xvi) election covers the entire process from the issuance of
the notification till the declaration of the result; (xvii) thus, while filing the
nomination form, if the requisite information relating to criminal antecedents
is not disclosed, indubitably, there is an attempt to suppress, effort to
misguide and keep the people in dark; (xviii) misinformation nullifies and
EL.PET. No.2/2015 Page 9 of 15
countermands the very basis and foundation of voter's exercise of choice;
(xix) denial of information, a deliberate one, thus amounts to corrupt
practice of 'undue influence' as defined under Section123(2) of the RP Act.
9. The same question again came up before the Supreme Court in Sri
Mairembam Prithviraj Vs. Shri Pukhrem Sharatchandra Singh 2016 SCC
Online SC 1207 and it was additionally held (i) that every voter has a
fundamental right to know about the educational qualification of a
candidate; (ii) it is clear from the provisions of the RP Act, Rules and Form
26 that there is a duty cast on the candidates to give correct information
about their educational qualifications; (iii) that reference to MBA from
Mysore University which the candidate had not studied could not be a
clerical mistake; (iv) the candidate in an earlier election also had declared
his educational qualification as MBA from Mysore University; (v) once it
was found that the candidate had not studies MBA, the information provided
by him in the affidavit filed in Form 26 would amount to a false declaration;
(vi) the said false declaration cannot be said to be a defect which was not of
a substantial character; (vii) having made a false declaration relating to
educational qualification, the candidate cannot be permitted to contend that
the declaration is not of substantial character; (viii) that there is a difference
EL.PET. No.2/2015 Page 10 of 15
between the improper acceptance of a nomination of a returned candidate
and the improper acceptance of nomination of any other candidate; (ix) if the
nomination of a candidate other than the returned candidate is found to have
been improperly accepted, it is essential that the election petitioner has to
plead and prove that the votes polled in favour of such candidate would have
been polled in his favour; (x) on the other hand, if the improper acceptance
of nomination is of the returned candidate, there is no necessity of proof that
the election has been materially affected as the returned candidate would not
have been able to contest the election if his nomination was not accepted -
in such a case it is not necessary to prove that the result of the election in so
far as it concerns the returned candidate has been materially affected by the
improper acceptance of his nomination.
10. In view of the aforesaid judgments, the contention of the senior
counsel for the respondent no.1/applicant that furnishing wrong information
with the nomination form does not constitute a ground for setting aside of
the election or that there is no material on record to show that the result of
the election was materially affected by the declaration of the educational
qualification or that the petitioner is estopped, cannot be accepted. I may
however record that the counsel for the petitioner/non-applicant relied upon
EL.PET. No.2/2015 Page 11 of 15
Jaspal Singh Vs. O.P. Babbar 2008 (149) DLT 205 but which was dealt
with by me in Nand Ram Bagri supra and thus need to deal with herein is
not felt. I may further record that the senior counsel for the respondent
no.1/applicant also referred to (i) Azhar Hussain Vs. Rajiv Gandhi AIR
1986 SC 1253; (ii) Virender Nath Gautam Vs. Satpal Singh (2007) 3 SCC
617; (iii) Baburao Patel Vs. Dr. Zakir Hussain AIR 1968 SC 904; (iv) N.S.
Vardachari Vs. G. Vasantha Pai (1972) 2 SCC 594; (v) Mohan Singh Vs.
Bhanwarlal AIR 1964 SC 1366; (vi) Manohar Joshi Vs. Nitin Bhaurao
Patil (1996) 1 SCC 169; and, (vii) K.M. Mani Vs. P.J. Antony (1979) 2
SCC 221 but in the light of the aforesaid recent judgments which squarely
apply, the need to burden this judgment by dealing with the said judgments
is also not felt.
11. It is also the contention of the senior counsel for the respondent
no.1/applicant that the petitioner/non-applicant is not challenging the
qualification declared by the respondent no.1/applicant as a Law Graduate
but the eligibility of the respondent no.1/applicant to be admitted to the
LL.B. course on the ground of not having a graduation degree. It is
contended that in Nand Ram Bagri also, the election petition was dismissed
for the same reason.
EL.PET. No.2/2015 Page 12 of 15
12. Per contra, the counsel for the petitioner/non-applicant contends that
once it is established that the respondent no.1/applicant was not eligible for
admission to the LL.B. course, his declaration of holding the LL.B.
qualification would be false.
13. I am of the view that the said question cannot form the basis for
rejection of an Election Petition under Order VII Rule 11 of the CPC and is a
question to be decided on merits. Suffice it is to state that in Nand Ram
Bagri there was no challenge to the highest qualification required to be
declared and for which reason the Election Petition was dismissed. However
in the present case there indeed is a challenge to the highest qualification
declared by the respondent no.1/applicant.
14. That brings to the contention of the senior counsel for the respondent
no.1/applicant that the proceedings in the present petition should be stayed
owing to the pendency of the writ petition and FIR aforesaid on the same
facts.
15. I may notice that the senior counsel for the respondent no.1/applicant
during the hearing disclosed that W.P.(C) No.1056/2015 has since been
disposed of owing to the Bar Council of India having also initiated
EL.PET. No.2/2015 Page 13 of 15
proceedings against the respondent no.1/applicant and taking note of the FIR
aforesaid lodged against the respondent no.1/applicant.
16. The senior counsel in this context has contended that though the
respondent no.1/applicant in the prosecution if launched against him would
not be required to disclose his defence but if made to contest this petition
would be required to lead evidence therein, disclosing his defence.
17. I am unable to accept the aforesaid plea either. I have hereinabove
analysed in detail the recent judgments of the Supreme Court dealing with
the said aspect, all emphasising on the need to maintain the purity of the
election process and the importance of elections in a democracy. The
respondent no.1/applicant has been elected for a period of five years and if
his election is to be set aside, he cannot be permitted to occupy an elected
office on such specious pleas. No merit is also found in the bare plea of the
respondent no.1/applicant, that if were to contest the said petition would be
compelled to disclose his defence which he is not required to in the
prosecution if any. The question for consideration is whether the respondent
no.1/applicant who declared himself to be a Law Graduate holds such a
qualification or not. As per the dicta aforesaid of the Supreme Court, if he
does not, this petition is to succeed and he is to be non-seated and cannot be
EL.PET. No.2/2015 Page 14 of 15
permitted to complete his term as Member of the Delhi Legislative
Assembly from Tri Nagar Constituency.
18. There is thus no merit in the application; the same is dismissed with
costs of Rs.10,000/- to the counsel for the petitioner/non-applicant.
RAJIV SAHAI ENDLAW, J.
SEPTEMBER 21, 2016 'pp' (Corrected & released on 7th November, 2016) EL.PET. No.2/2015 Page 15 of 15