Full Judgment Text
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PETITIONER:
VIDYA CHARAN SHUKLA
Vs.
RESPONDENT:
PURSHOTTAM LAL KAUSHIK
DATE OF JUDGMENT15/01/1981
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
BHAGWATI, P.N.
VENKATARAMIAH, E.S. (J)
CITATION:
1981 AIR 547 1981 SCR (2) 637
1981 SCC (2) 84 1981 SCALE (1)159
ACT:
Disqualification from being closed as a candidate for
election-Whether the election of a returned candidate whose
appeal against the orders of his conviction and sentence
exceeding two years’ imprisonment, pending at the date of
scrutiny of nomination papers is accepted by the appellate
court, resulting in the acquittal, before the election
petition against him becomes void under section 100(1)(a) of
the Representation of People Act, 1951 on the ground that he
was disqualified from being chosen as a candidate within the
meaning of section 8(2) of the Act-Representation of the
People Act, Section 7(b), 8(2), (3), 32, 36(2)(a), 53, 66,
67A. (1)(a); Constitution of India, 1950 Articles 84, 102,
173 and 191.
HEADNOTE:
The appellant had been convicted and sentenced to
imprisonment exceeding two years by the Sessions Judge,
Delhi, on February 26/27, 1979. By his Order dated February
27, 1979, passed under section 389(3) of the Code of
Criminal Procedure, the Sessions Judge who had convicted the
appellant suspended the execution of the sentence to afford
the appellant time to file an appeal. On March 21, 1979 the
High Court of Delhi admitted his appeal and by an order of
the same date directed that his sentence shall remain
suspended provided the appellant furnished a personal bond
and surety in the amount of Rs. 5,000/- to the satisfaction
of the Sessions Judge, which was complied with.
The respondent and the appellant contested the election
as rival candidates to the Lok Sabha from No. 18 Mahasamund
Parliamentary Constituency in Madhya Pradesh. The last date
for filing nominations was December 7, 1979. The scrutiny of
the nomination papers took place on December 11, 1979. The
Returning Officer by his Order dated December 11, 1979
rejected the objection of the respondent that the appellant
was disqualified from being chosen as a candidate in view of
sub-section (2) of section 8 of the Representation of the
People Act, 1951 and accepted the appellant’s nomination as
valid. The result of the election was declared on January 7,
1980. The election result was notified on January 10, 1980.
The appellant was declared elected and the respondent was
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defeated. Thereafter, on February 18, 1980 the respondent
filed an election petition 1 of 1980 in the High Court of
Madhya Pradesh to get the election of the appellant declared
void under section 100(1)(a) and 100(1)(b)(i) of the Act
challenging that at the date of the election including the
date of the scrutiny of the nomination papers the appellant
was disqualified by virtue of section 8(2) of the Act from
being chosen as candidate on account of his aforesaid
conviction and sentence.
The appellant’s appeal pending in the High Court was
transferred to the Supreme Court under the Special Courts
Act, 1979. The Supreme Court by its judgment dated April 11,
1980 allowed the appeal set aside the conviction and
sentence of the appellant and acquitted him of charges
against him. Subsequent
638
to this decision of the Supreme Court, by its judgment dated
September 5, 1980 the High Court of Madhya Pradesh allowed
the election petition with costs and declared the
appellant’s election to be void on the ground contained in
section 100(1)(d)(i) of the Act, hence the appeal.
Allowing the appeal, the Court
^
HELD: (1). Abiding by the principle of stare decisis
and following the ratio decidendi of Manni Lal’s case,
[1971] 1 SCR 798, the acquittal of the appellant in appeal
prior to the pronouncement of the judgment of the High Court
in the election petition had the result of wiping out his
disqualification as completely and effectively as if it did
not exist at any time including the date of the scrutiny of
the nomination papers and that his nomination paper was
properly accepted by the Returning Officer. [660B-C]
Manani Lal v. Shri Parmai Lal & Ors. [1971] 1 SCR 798,
applied
(2) An order of acquittal particularly one passed on
merits wipes off the conviction and sentence for all
purposes, and as effectively as if it had never been passed.
An order of acquittal annulling or voiding a conviction
operates from nativity. [654B]
Manni Lal v. Shri Parmai Lal & Ors., [1971] 1 SCR 798;
Dilip Kumar Sharma & Ors. v. State of Madhya Pradesh, [1976]
2 SCR 289, followed.
(3) The ratio decidendi logically deducible from Manni
Lal’s case is that if the successful candidate is
disqualified for being chosen, at the date of his election
or at any earlier stage of any step in the election process
on account of his conviction and sentence exceeding two
years’ imprisonment, but his conviction and sentence are set
aside and he is acquitted on appeal before the pronouncement
of judgment in the election-petition pending against him,
his disqualification is annulled rendered non est with
retroactive force from its very inception, and the challenge
to his election on the ground that he was so disqualified is
no longer sustainable. [656D-E]
(4) A plain reading of section 100(1) of the Act shows
that it can be conveniently divided into two parts. Clauses
(a), (b) and (c) of the sub-section fall in the first part
and clause (d) along with its sub-clauses falls in the
second part. The distinction between clauses (a), (b) and
(c) in the first part and clause (d) in the second part lies
in the fact that whereas on proof of any of the grounds
mentioned in clauses (a), (b) and (c), the election has to
be declared void without any further requirement, in a case
falling under clause (d) the election cannot be declared
void merely on proof of any of the grounds mentioned in its
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sub-clauses, unless it is further proved "that the result of
the election in so far as it concerns the returned candidate
has been materially affected". The expression "any
nomination" occurring in sub-clause (i) of clause (d) in the
second part may include nomination of a returned candidate
as well; but in the case of a returned candidate whose
nomination has been improperly accepted, the effect on the
result of the election so far as it concerns him, is
obvious. However, if the election is challenged on the
ground that the nomination of a candidate, other than the
returned candidate, has been improperly accepted, the
petitioner in order to succeed will be required to prove
under clause (d)(i) in addition to improper acceptance the
further fact that thereby
639
the result of the election so far as it concerns the
returned candidate has been materially affected. [651H-652D]
Clause (a) of sub-section (1) requires that the
disqualification or lack of qualification of the returned
candidate is to be judged with reference to "the date of his
election", which date, according to section 67A is "the date
on which a candidate is declared by the returning officer
under the provisions of section 53 or section 66, to be
elected to a House of Parliament or of the Legislature of a
State". But, the word "disqualified" used in clause (a) is
capable of an expensive construction also, which may extend
the scope of the inquiry under this clause to all the
earlier steps in the election process. Section 7(b) defines
"disqualified" to mean "disqualified for being chosen as and
for being, a member of either House of Parliament etc." The
words "for being chosen" in that definition have been
interpreted by the Supreme Court in Chatturbhuj’s case,
[1954] SCR 817, to include the whole "series of steps
starting with the nomination and ending with the
announcement of the election. It follows that if a
disqualification attaches to a candidate at any one of these
stages he cannot be chosen." But this definition of
"disqualified" is in terms of section 7(b) meant for Chapter
III, in Part II of the Act; while section 100 falls in
Chapter III of Part VI. If the expression "for being chosen"
which is a central limb of the definition of "disqualified",
is given such an extensive interpretation which will bring
in its train the whole series of steps and earlier stages in
the election process commencing with the filing of the
nominations, it will be repugnant to the context and
inconsistent with "the date of his election". Such a
construction which will introduce disharmony and
inconsistency between the various limbs of clause (a) has to
be eschewed. In the context of clause (a), therefore, the
ambit of the words "for being chosen" in the definition of
"disqualified" has to be restricted to "the date of his
election" i.e. declaration of the result of the election
under section 53 or section 66, and such date is to be the
focal point of time in an inquiry under this clause. [652H-
653D]
In contrast with clause (a), in a case falling under
clause (d)(i) of section 100, if an objection is taken
before the Returning Officer against the nomination of any
candidate on the ground of his being not qualified, or being
disqualified for being chosen the crucial date as per
section 36(2)(a) with reference to which the existence or
non-existence of such disqualification is to be enquired
into is the date of scrutiny of the nomination of the
candidate. [653C]
Assuming that technically, the election-petitioner’s
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case that survives is one under clause (d)(i), and not under
clause (a) of section 100(1). Even so, the fact remains
that, in substance, the election of the appellant is being
challenged on the ground that on account of his conviction
and sentence exceeding two years, the appellant was under
Article 102(1)(e) of the Constitution read with section 8(2)
and 36(2)(a) of the Act, disqualified for being chosen to
fill the seat concerned. Such being the real ground of
challenge, apart from sub-clause (i), sub-clause (iv) of
clause (d) of section 100(1) will also be attracted, because
the phrase "non-compliance with the provisions of the
Constitution or of this Act etc." according to the decision
of this Court in Durga Shankar Mehta’s case is wide enough
to cover a case where the improper acceptance or rejection
of the nomination is challenged on the ground of the
candidate being disqualified for being chosen. [653E-G]
640
Durga Shanker Mehta v. Thakur Raghuraj Singh & Ors.
[1955] 1 SCR 267 and Chatturbhuj Vithaldas Jasani v.
Nareshwar Parashram Ors., [1978] 2 SCR 272, followed.
(a) It is true that in order to adjudicate upon the
validity of the challenge in the appellant’s election under
clause (d) (i) of section 100(1), what was required to be
determined by the High Court was whether the nomination of
the appellant was properly or improperly accepted by the
Returning Officer. But, in order to determine this question,
it was necessary for the High Court to decide, as a
preliminary step, whether the appellant was disqualified, at
the date of scrutiny of the nomination papers, for if he was
disqualified, his nomination could not be said to have been
properly accepted by the Returning Officer and if, on the
other hand, he was not disqualified, his nomination would
have to be regarded as properly accepted by the Returning
Officer. The primary question before the High Court
therefore, was whether or not the appellant was disqualified
at the date of scrutiny of the nomination papers and it is
difficult to see how the determination of this question
could be made on any principle other than that governing the
determination of a similar question under clause (a) of
section 100(1). If, as laid down in Manni Lal’s case, the
returned candidate cannot be said to be disqualified at the
date of the election, if before or during the pendency of
the election petition in the High Court his conviction is
set aside and he is acquitted by the appellate court, on the
application of the same principle, that, in like
circumstances, the returned candidate cannot be said to be
disqualified at the date of scrutiny of the nomination
papers. On this view, the appellant could not be said to be
disqualified on the date of scrutiny of the nomination paper
since his conviction was set aside in appeal by this Court
and if that be so, the conclusion must inevitably follow
that the nomination of the appellant was properly accepted
by the Returning Officer. The position is analogous to that
arising where a case is decided by a Tribunal on the basis
of the law then prevailing and subsequently the law is
amended with retrospective effect and it is then held by the
High Court in the exercise of its writ jurisdiction that the
order of the Tribunal discloses an error of law apparent on
the face of the record, even though having regard to the law
as it then existed, the Tribunal was quite correct in
deciding the case in the manner it did. [656C-H]
Venkatachalam v. Bombay Dyeing & Manufacturing Company
Limited, 34 ITR 143, referred to.
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JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2020 of
1980.
From the Judgment and Order dated 5-9-1980 of the
Madhya Pradesh High Court in Election Petition No. 1 of
1980.
A. K. Sen, O. P. Sharma, Rajinder Singh, P. L. Dubey
and P. N. Tewari for the appellant.
S. N. Kacker, Swaraj and Mrs. Sushma Swaraj for
Respondent No. 1.
Y. S. Chitale (Dr.) and Miss Rani Jethmalani for the
Intervener.
641
The Judgment of the Court was delivered by
SARKARIA, J. This is an appeal under Sections 116(A)
and 116(B) of the Representation of People Act, 1951
(hereinafter referred to as the Act) against a judgment
dated September 5, 1980, of a learned Judge of the High
Court of Madhya Pradesh, whereby the Election Petition 1 of
1980 filed by the respondent was accepted and the
appellant’s election to Lok Sabha was declared to be void.
The principal question that falls to be determined in
this appeal is, whether the election of a returned candidate
whose appeal against the orders of his conviction and
sentence exceeding two years imprisonment, pending at the
date of the scrutiny of nomination papers, is accepted by
the appellate court, resulting in his acquittal, before the
decision of the election-petition against him, can be
declared to be void under Section 100(1) of the Act, on the
ground that he was disqualified from being chosen as a
candidate within the meaning of Section 8(2) of the Act. The
material facts are as follow:
The respondent and the appellant contested the election
as rival candidates, to the Lok Sabha from No. 18
Mahasamund Parliamentary Constituency in Madhya Pradesh. The
last date for filing nominations was December 7, 1979. The
scrutiny of the nomination papers took place on December 11,
1979.
The respondent raised an objection to the validity of
the appellant’s nomination before the Returning Officer at
the time of the scrutiny. The objection was that the
appellant had been convicted and sentenced to imprisonment
exceeding two years by the Sessions Judge, Delhi on February
22/27, 1979, and, as such, the appellant was disqualified
from being chosen as a candidate in view of sub-section (2)
of Section 8 of the Act. The Returning Officer, by his order
dated December 11, 1979, rejected the objection and accepted
the appellant’s nomination as valid. The result of the
election was declared on January 7, 1980. The election
result was notified on January 10. 1980. The appellant was
declared elected, and the respondent was defeated.
Thereafter on February 18, 1980, the respondent filed an
Election Petition in the High Court to get the election of
the appellant herein, declared void under Section 100(1) (a)
and 100(1) (d) (i) of the Act, alleging that at the date of
the election, including the date of the scrutiny of the
nomination papers, the appellant was disqualified by virtue
of Section 8(2) of the Act from being, chosen as a candidate
on account of his aforesaid conviction and sentence.
642
The Session Judge who had convicted the appellant,
had, by his order dated February 27, 1979, passed under
Section 389 (3) of the Code of Criminal Procedure, suspended
the execution of the sentence to afford the appellant time
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to file an appeal. On March 21, 1979, the High Court of
Delhi admitted his appeal and by an order of the same date
directed that his sentence shall remain suspended provided
the appellant furnished a personal bond and surety in the
amount of Rs. 5000/- to the satisfaction of the Sessions
Judge.
The appellant’s appeal pending in the High Court was
transferred to the Supreme Court under the Special Courts
Act, 1979. This Court by its judgment dated April 11, 1980,
allowed the appeal, set aside the conviction and sentence of
the appellant and acquitted him of the charges against him.
Subsequently, by its impugned judgment, dated September
5, 1980, the High Court of Madya Pradesh, allowed with
costs, the election petition filed by the respondent, and
declared the appellant’s election to be void on the ground
contained in Section 100(1) (d) (i) of the Act. Hence this
appeal.
The contentions canvassed by Shri Asoke Sen, learned
counsel for the appellant may be summarised as follows:
(1) The conviction and sentence of the appellant had
been quashed by the Supreme Court in appeal. The acquittal
of the appellant had the effect of wiping out the conviction
with retrospective effect as if he had never been convicted
and sentenced. In support of this proposition, reliance has
been placed on Manni Lal v. Shri Parmi Lal & Ors.. Reference
has also been made to Dilip Kumar Sharma & Ors. v. State of
Madhya Pradesh.
(2) Conviction and sentence in Section 8(2) must mean
the final and ultimate conviction and sentence. Reference
has been made to Union of India v. R. Akbar Sheriff, and
Dilbag Rai Jarry v Divisional Superintendent.
(3) Invalidity of the appellant’s election, in the
instant case, was to be tested under clause (a) and not
under clause (d) (i) of Section 100(1) of the Act, because-
(a) (i) "Election" within the meaning of Section 100(1)
(a) connotes the entire process of election commencing with
the filing of
643
nominations and ending with the declaration of the result of
the poll. The stage of the scrutiny of the nominations and
their acceptance or rejection was an important step of the
election process and, as such, was an integral part of the
’election’. Reliance on this point has been placed on the
decisions of this Court in N. P. Ponnuswami v. Returning
Officer, Namaklal Constituency; and M. S. Gill v. Chief
Election Commissioner.
(ii) The term "disqualified" in clause (a) of Section
100(1), as defined in Section 7(b) means "disqualified for
being chosen as, and for being, a member of either House of
Parliament, etc.", and the expression "being chosen". (which
is the language of Article 102 of the Constitution also) has
been interpreted by this Court in Chatturbhuj Vithaldas
Jasani v. Moreshwar Parashram & Ors., as embracing "a series
of steps starting with the nomination and ending with the
announcement of the election".
(b) In substance and reality, the election of the
appellant has been challenged on the ground that both at the
date of the scrutiny and acceptance of his nomination and at
the subsequent stages of the election including the dates of
poll and declaration of the election result, the appellant
was disqualified for being chosen on account of his having
been convicted and sentenced to imprisonment exceeding two
years. This ground finds specific mention in clause (a) and
not in clause (d) (i) which is a general and residuary
clause and its application to the instant case will be
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excluded on the principle that the special excludes the
general.
(c) The phrase "any candidate" in sub-clause (i) of
clause (d) of Section 100 (1) does not include the returned
candidate. (This point was not seriously pressed).
(4) (a) Even if it is assumed that clause (d) (i) or
(d) (iv) is applicable, then also, the instant case cannot
be taken out of the ratio of Manni Lal’s case (ibid),
because the effect of the quashing of the appellant’s
conviction and sentence by the appellate court, during the
pendency of the Election Petition before the High Court was,
that the conviction and sentence were retrospectively wiped
out, and the High Court could not at the date of deciding
the Election Petition hold that in spite of the acquittal by
the Appellate Court, the disqualification of the appellant
"for being chosen" ever existed-even at the date of the
acceptance of his nomination paper by the Returning Officer.
The proposition enunciated by this Court in Manni Lal’s case
must be taken
644
to its logical end and the imagination must not be allowed
to boggle down.
(b) Clause (a) and clause (d) (i) of Section 100 (1) of
the Act should be construed harmoniously. If these clauses
are construed differently, there will be serious
contradictions and inconsistencies. Under Section 100 (1)
(a), the candidate whose conviction and sentence are
quashed, is qualified to be chosen and elected on the
principle of retrospective wiping out of conviction and
sentence, and yet he remains disqualified for his
nomination. Such an anomalous result should be avoided.
(5) The effect of suspension of the sentence made by
the trial court and thereafter by the High Court pending the
appeal, would be that the disqualification automatically
stood eclipsed. (This point was also not pressed).
On the other hand Shri S. N. Kacker, learned counsel
for the respondent, made these submissions:
(1) Article 102 (1) (e) of the Constitution provides
that "a person shall be disqualified for being chosen as,
and for being, a member of either House of Parliament
______" "if he is so disqualified by or under any law made
by Parliament." Under Section 8(2) of the Representation of
People Act, 1951,- which is a law made by Parliament the
appellant on account of his conviction and sentence
exceeding two years, was disqualified at the date of
scrutiny of nominations and the Returning Officer was bound
in view of Section 36(2) (a), of the Act, to take into
account only such facts as they stood on the date of the
scrutiny, which is an integral step in the process of
election i.e., process of "being chosen". (Reference has
been made in this connection to Chaturbhuj’s case (ibid) and
Chandan Lal v. Ram Dass and Another.
(2) The phrase "date of such conviction" occurring in
sub-section (2) of Section 8 of the Act means the date of
the initial conviction and not the date of the final
conviction. If this phrase was construed to mean the date of
the final and ultimate conviction on termination of the
entire judicial process in the hierarchy of courts, sub-
section(3) would be redundant. Sub-section (3) applies to a
special category of persons mentioned therein, and its
language makes it clear that in their case, conviction will
not operate as disqualification unless it becomes final in
the course of judicial process.
(3) The present case is governed by clause (d) (i) and
not by clause (a) of Section 100(1). In the election-
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petition, both the
645
grounds under Section 100(1) (d) (i) and under Section
100(1) (a) were taken, because-
(i) the appellant was disqualified on the date of
scrutiny-a ground under Section 100(1) (d) (i); and
(ii) the disqualification also existed on the date of
declaration of election result-affording ground under
Section 100(1) (a).
Since the appellant was subsequently acquitted during
the pendency of election-petition, the ground under Section
100(1) (a) become non-existent in view of the principle laid
down by this Court in Manni Lal’s case (ibid). but the
ground under Section 100(1) (d) (i) still subsisted.
Consequently, at the stage of arguments before the High
Court, the ground under Section 100(1) (a) was given up and
the petition was pressed only on the ground under Section
100(1) (d) (i).
(4) Section 100(1)(d)(i) is applicable to a returned
candidate as well.
(5) The basic distinction between clauses (a) and (d)
(i) of Section 100(1) is that under the former clause the
existence or non-existence of disqualification of the
returned candidate is to be determined as "on the date of
his election", which date in view of Section 67A. means the
date on which he was declared elected under Section 53 or
Section 66 of the Act; whereas under clause (d) (i), the
enquiry is restricted to judging the propriety or otherwise
of the action of the Returning Officer in accepting his
nomination on the date of scrutiny; that is to say, for
purposes of the latter clause all that has to be enquired
into is whether the disqualification existed on the date of
scrutiny.
(6) The proposition laid down in Manni Lal’s case
(ibid) to the effect that subsequent acquittal by the
appellate court in a criminal matter has the effect of
wiping out the conviction from the date of its very
inception is not applicable to the case in hand because:-
(a) Manni Lal’s case was one under Section 100(1) (a);
while the present case is under Section 100(1) (d) (i);
(b) in Manni Lal’s case the returned candidate was not
disqualified on the date of the scrutiny; whereas in the
instant case the disqualification of the appellant did, in
fact exist on the date of the scrutiny, although the same
may have ceased to exist in point of law due to his
subsequent acquittal; and
(c) Section 36(2) (a) fixes a date for judging the
qualification of a candidate and if the legal fiction of
retrospective repeal is applied
646
to the case of subsequent acquittal wiping out the
disqualification which in fact existed on the date of
scrutiny, Section 36(2) (a) could be rendered nugatory and
several inconsistent situations could arise.
(7) In sum, the instant case being one under Section
100(1) (d) (i) falls within the ratio of this Court’s
decision in Amritlal Ambalal Patel v. Himatbhai Gumanbhai
Patel & Anr. and Manni Lal’s case is not in point.
Shri Chitale, appearing for the intervener, has
elaborated contentions (5) and 6 (c) of Shri Kacker and
stressed that the facts constituting the disqualification,
as obtaining on the date of scrutiny, are under Section 36
the decisive factor.
Before dealing with the contentions canvassed on both
sides, it will be necessary to have a look at the relevant
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constitutional and statutory provisions.
Article 102 of the Constitution, so far as material,
reads thus:
"(1) A person shall be disqualified for being
chosen as, and for being, a member of either House of
Parliament-
(a) to (d)...........
(e) if he is so disqualified by or under any law
made by Parliament."
The words "for being chosen as, and for being, a member of
either House of Parliament" have been lifted from Article
102 and incorporated in the definition of "disqualified"
given in Section 7(b) of the Act. According to this
definition, "disqualified" means "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."
Section 8 of the Act provides for disqualification on
conviction for certain offences. Under sub-section (1), a
person convicted of any of the offences specified in that
sub-section shall be disqualified for a period of six years
from the date of such conviction. The material part of sub-
sections (2) and (3) reads as under:
"(2) A person convicted by a court in India for
any offence and sentenced to imprisonment for not less
than two years shall be disqualified from the date of
such conviction and shall continue to be disqualified
for a further period of five years since his release:
Provided ......
647
(3) Notwithstanding anything in sub-section (1)
and sub-section (2), a disqualification under either
sub-section shall not, in the case of a person who on
the date of the conviction is a member of Parliament or
the Legislature of a State, take effect until three
months have elapsed from that date or, if within that
period an appeal or application for revision is brought
in respect of the conviction or the sentence, until
that appeal or application is disposed of by the
court."
Then there is an Explanation appended to this Section, which
is not material for our purpose.
Chapter I of Part V includes Sections 30 to 39 under
the main heading "Nomination of Candidates". Section 30
requires the Election Commission to appoint dates for making
nominations, scrutiny of nominations, withdrawal by
candidates, for poll and also to specify the date before
which the election shall be completed. The provision in
clause (b) requires that the date for the scrutiny of
nominations shall be the date immediately following the last
date for making nominations or, if that day is a public
holiday, the next succeeding day which is not a public
holiday. Section 32 lays down that any person may be
nominated as a candidate for election to fill a seat if he
is qualified to be chosen to fill that seat under the
provisions of the Constitution and this Act, or under the
provisions of the Government of Union Territories Act, 1963
(20 of 1963), as the case may be.
Section 36 deals with scrutiny of nominations. Sub-
section (2) (a) of the Section is material. It reads thus:
"(2) The returning officer shall then examine the
nomination papers and shall decide all objections which
may be made to any nomination and may, either on such
objection or on his own motion, after such summary
inquiry, if any, as he thinks necessary, reject any
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nomination on any of the following grounds:-
(a) that on the date fixed for the scrutiny of
nominations the candidate either is not
qualified or is disqualified for being chosen
to fill the seat under any of the following
provisions that may be applicable, namely:-
Articles 84, 102, 173 and 191,
Part II of this Act and......... "
648
Under sub-section (7), for the purposes of this Section, a
certified copy of an entry in the electoral roll for the
time being in force of a constituency shall be conclusive
evidence of the fact that the person referred to in that
entry is an elector for that constituency, unless it is
proved that he is subject to a disqualification mentioned in
Section 16 of the Representation of the People Act, 1950.
Before the amendment of 1956. clauses (a) and (b) of
sub-section (2) of Section 36 read as under:
"The returning officer shall then examine the
nomination papers and.......refuse any nomination on
any of the following grounds:
(a) that the candidate is not qualified to be
chosen to fill the seat under the
Constitution or this Act; or
(b) that the candidate is disqualified for being
chosen to fill the seat under the
Constitution or this Act..........."
The Amendment Act 27 of 1956 recast clauses (a) to (e) of
the old Section. It also combined clauses (a) and (b) and
the recast clause read as follows:
"(a) that the candidate is not qualified or is
disqualified for being chosen to fill the seat under
any of the following provisions that may be applicable,
’namely:............."
The Amendment Act 40 of 1961 substituted in Sub-section
(2)(a), for the words "that the candidate" the words "that
on the date fixed for the scrutiny of nominations the
candidate". The same Amendment Act substituted in sub-
section (5) the proviso for the words "an objection is made"
the words "an objection is raised by the returning officer
or is made by any other person". Thus, the amendment in sub-
section 2(a) was only of a clarificatory character. It made
it clear that the date of scrutiny of the nominations is a
crucial date.
Next, we come to Section 100. The Section enumerates
the grounds on which an election can be declared to be void.
Before the Amendment of 1956, Section 100, so far as
material, was as follows:
"(1) If the Tribunal is of opinion-
(a) .................
(b) ...................
(c) that the result of the election has been
materially affected by the improper acceptance or
rejection of
649
any nomination, the Tribunal shall declare the
election to be wholly void.
Explanation...............
(2) Subject to the provisions of sub-section (1)
if the Tribunal is of opinion -
(a) .....................
(b) .......................
(c) that the result of the election has been
materially affected by the improper reception
or refusal of a vote or by the reception of
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any vote which is void or by any non-
compliance with the provisions of the
Constitution or of this Act or of any rules
or orders made under this Act or of any other
Act or rules relating to the election, or by
any mistake in the use of any prescribed
form,
the Tribunal shall declare the election of the returned
candidate to be void".
In Durga Shanker Mehta v. Thakur Raghuraj Singh & Ors.
nominations were filed for a double member Legislative
Assembly constituency in Madhya Pradesh. No objection was
taken before the returning officer, that one of the
candidates, Vasant Rao, was less than 25 years of age at the
date of the nomination and, as such, was not qualified under
Article 173 to be chosen to fill the seat. The Returning
Officer accepted his nomination.
In the Election Petition, the election of the returned
candidate, Vasant Rao, was challenged on the ground that his
nomination had been improperly accepted by the Returning
Officer within the contemplation of Section 100(1)(c) of the
Act, as then in force, because he was ’not qualified to be
chosen in view of Section 173 of the Constitution. The
Tribunal held that the act of the Returning Officer in
accepting the nomination of Vasant Rao, who was disqualified
to be elected a member of the State Legislature under the
Constitution, amounted to an improper acceptance of
nomination within the meaning of Section 100(1)(c) of the
Act, and as the result of the election was materially
affected thereby, the whole election must be pronounced to
be void.
The controversy centered round the question, whether on
the facts proved and admitted the case was one under sub-
section (1) (c) or Section 2(c) of the then extant Section
100. This Court held that
650
the acceptance of the nomination paper of Vasant Rao by the
Returning Officer could not be said to be improper
acceptance "within the contemplation of Section 100 (1) (c)
of the Act, and that the case was of a description which
came under sub-section (2) (c) of Section 100 and not under
sub-section (1) (c) of the Section as it really amounted to
holding an election without complying with the provisions of
the Constitution. The expression "non-compliance with the
provisions of the Constitution" in clause (c) of sub-section
(2) was held to be sufficiently wide to cover such cases
where the question was not one of improper acceptance or
rejection of the nomination by the Returning Officer, but
there was a fundamental disability in the candidate to stand
for election at all. There was no material difference
between "non-compliance" and "non-observance" or "breach"
and this item in clause (c) of sub-section (2) might be
taken as a residuary provision contemplating cases where
there had been infraction of the provisions of the
Constitution or of the Act but which had not been
specifically enumerated in the other portions of the clause.
After the decision in Durga Shanker Mehta’s case
(ibid), Parliament in 1956 amended Section 100 along with
Sections 36, 123, 124 and 125 of the Act. By this Amendment,
the various clauses of sub-sections (1) and (2) were
rearranged and recast and simplified in accordance with the
recommendations of the Select Committee of Parliament, "that
sub-sections (1) and (2) of existing Section 100 should be
suitably combined retaining the substance of the existing
law and at the same time making the law simple and easily
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intelligible".
Now, Section 100, as amended, by the Amending Act of
1956 and subsequent Amendment Acts, reads as under:
"100. Grounds for declaring election to be void-
(1) Subject to the provisions of sub-section (2) if the
High Court is of opinion-
(a) that on the date of his election a returned
candidate was not qualified, or was
disqualified, to be chosen to fill the seat
under the Constitution or this Act or the
Government of Union Territories Act, 1963 (20
of 1963); or
(b) that any corrupt practice has been committed
by a returned candidate or his election agent
or by any other person with the consent of a
returned candidate or his election agent; or
651
(c) that any nomination has been improperly
rejected; or
(d) that the result of the election, in so far as
it concerns a returned candidate, has been
materially affected-
(i) by the improper acceptance of any
nomination, or
(ii) by any corrupt practice committed in the
interests of the returned candidate by
an agent other than his election agent,
or
(iii)by the improper reception, refusal or
rejection of any vote or the reception
of any vote which is void, or
(iv) by any non-compliance with the
provisions of the Constitution or of
this Act or of any rules or orders made
under this Act,
the High Court shall declare the election of the
returned candidate to be void.
(2) If in the opinion of the High Court, a
returned candidate has been guilty by an agent, other
than his election agent, of any corrupt practice but
the High Court is satisfied-
(a) that no such corrupt practice was committed
at the election by the candidate or his
election agent, and every such corrupt
practice was committed contrary to the
orders, and without the consent, of the
candidate or his election agent;
(b) .............
(c) that the candidate and his election agent
took all reasonable means for preventing the
commission of corrupt practices at the
election; and
(d) that in all other respects the election was
free from any corrupt practice on the part of
the candidate or any of his agents,
then the High Court may decide that the election of the
returned candidate is not void".
A plain reading of Section 100(1) of the Act shows that
it can be conveniently divided into two parts. Clauses (a),
(b) and (c)
652
of the sub-section fall in the first part and clause (d)
along with its sub-clauses falls in the second part. The
distinction between clauses (a), (b) and (c) in the first
part and clause (d) in the second part lies in the fact that
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whereas on proof of any of the grounds mentioned in clauses
(a), (b) and (c) the election has to be declared void
without any further requirement, in a case falling under
clause (d) the election cannot be declared void merely on
proof of any of the grounds mentioned in its sub-clauses,
unless it is further proved "that the result of the election
in so far as it concerns the returned candidate has been
materially affected". The expression "any nomination"
occurring in sub-clause (i) of clause (d) in the second part
may include nomination of a returned candidate as well, but
in the case of a returned candidate whose nomination has
been improperly accepted, the effect on the result of the
election so far as it concerns him, is obvious. However, if
the election is challenged on the ground that the nomination
of a candidate, other than the returned candidate has been
improperly accepted, the petitioner in order to succeed will
be required to prove under clause (d) (i), in addition to
improper acceptance the further fact that thereby the result
of the election so far as it concerns the returned candidate
has been materially affected.
Clause (a) of sub-section (1) appears to require that
the disqualification or lack of qualification of the
returned candidate is to be judged with reference to "the
date on his election", which date, according to Section 67A,
is "the date on which a candidate is declared by the
returning officer under the provisions of Section 53 or
Section 66, to be elected to a House of Parliament or of the
Legislature of a State". But, the word "disqualified" used
in clause (a) is capable of an expansive construction also,
which may extend the scope of the inquiry under this clause
to all the earlier steps in the election process. As already
noticed, Section 7(b) defines "disqualified" to mean
"disqualified for being chosen as, and for being, a member
of either House of Parliament etc." The words "for being
chosen" in that definition have been interpreted by this
Court in Chatturbhujs case (ibid) to include the whole
"series of steps starting with the nomination and ending
with the announcement of the election. It follows that if a
disqualification attaches to a candidate at any one of these
stages he cannot be chosen". But this definition of
"disqualified" is in terms of Section 7(b) meant for Chapter
III, in Part II of the Act; while Section 100 falls in
Chapter III of Part VI. If the expression "for being chosen"
which is a central limb of the definition of "disqualified",
is given such an extensive interpretation which will bring
in its train the whole series of steps and earlier stages in
the election process commencing with the filing of the
nominations. it will
653
be repugnant to the context and inconsistent with "the date
of his election". Such a construction which will introduce
disharmony and inconsistency between the various limbs of
clause (a) has to be eschewed. In the context of clause (a),
therefore, the ambit of the words "for being chosen" in the
definition of "disqualified" has to be restricted to "the
date of his election" i.e. declaration of the result of the
election under Section 53 or Section 66, and such date is to
be the focal point of time in an inquiry under this clause.
In contrast with clause (a), in a case falling under
clause (d) (i) of Section 100, if an objection is taken
before the Returning Officer against the nomination of any
candidate on the ground of his being not qualified, or being
disqualified for being chosen the crucial date as per
Section 36 (2) (a) with reference to which the existence or
nonexistence of such disqualification is to be enquired into
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is the date of scrutiny of the nomination of the candidate.
The first question is whether on facts admitted or
proved on record, the case falls under Section 100(1) (a) or
Section 100(1) (d), or both? The burden of Shri Kacker’s
arguments is that the case falls under clause (d) (i) and
not under clause (a) of Section 100(1). Learned counsel has
conceded that if clause (a) were applicable, the case would
have been within the ratio of Manni Lal’s case and that was
why at the stage of arguments before the High Court, the
challenge under clause (a) of the sub-Section was given up.
We will therefore, assume that technically, the election-
petitioner’s case that survives is one under clause (d) (i),
and not under clause (a) of Section 100(1). Even so, the
fact remains, that, in substance, the election of the
appellant is being challenged on the ground that on account
of his conviction and sentence exceeding two years, the
appellant was under Article 102(1)(e) of the Constitution
read with Sections 8(2) and 36 (2) (a) of the Act,
disqualified for being chosen to fill the seat concerned.
Such being the real ground of challenge, apart from sub-
clause (i) sub-clause (iv) of clause (d) of Section 100 (1)
will also be attracted. This is so, because the phrase, non-
compliance with the provisions of the Constitution or of
this Act etc.", according to the decision of this Court in
Durga Shanker Mehta’s case (ibid), is wide enough to cover a
case where the improper acceptance of rejection of the
nomination is challenged on the ground of the candidate
being disqualified for being chosen.
The controversy thus narrows down into the issue:
Whether on facts undisputed or proved on record, the present
case falls within the ratio of Manni Lal v. Shri Parmai Lal
& Ors., even if the challenge is considered to be one under
clause (d) (i) and (iv) of Section 100(1).
654
Before examining the facts and ratio of Manni Lal’s
case it will be worthwhile to notice here a general
principle of criminal law bearing on this issue. This
principle as reiterated by this Court in Dilip Kumar
Sharma’s case, ibid, (at page 289), is as follows:
An order of acquittal particularly one passed on merits
wipes off the conviction and sentence for all purposes, and
as effectively as if it had never been passed. An order of
acquittal annulling or voiding a conviction operates from
nativity. As Kelson puts it, "it is a true annulment an
annulment with retroactive force". So when the conviction
(for the offence) was quashed by the High Court (in
appeal)......"it killed the conviction not then, but
performed the formal obsequies of the order which had died
at birth’.
In Manni Lal v. Parmai Lal (ibid), this Court applied
this principle to the question of the disqualification of a
candidate for being chosen to fill a seat in State
Legislative Assembly. In that case, the last date for filing
nominations from the U.P. Legislative Assembly Constituency,
Hardoi was January 9, 1969. The returned candidate was
convicted two days later on January 11, 1969 and sentenced,
inter alia, to 10 years’ rigorous imprisonment under Section
304, Indian Penal Code. On January 16, 1969, he filed an
appeal against his conviction in the High Court. Polling
took place on February 9, 1969 and the result of the
election was declared on February 11, 1969, and he was
successful in the election. His election was challenged by
an election-petition primarily on the ground that he was
disqualified under Section 8(2) of the Representation of the
People Act, because on the date of his election he stood
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convicted for an offence of imprisonment exceeding two
years. Before the election-petition was decided, the
returned candidate’s appeal was allowed on September 30,
1969 by the High Court and his conviction and sentence were
set aside.
The question for decision before the Court was: What
was the effect of the acquittal in appeal of the returned
candidate before the decision of the election-petition, on
his conviction and sentence, which was the main ground on
which he was alleged to be disqualified for being chosen ?
The bench presided over by J. C. Shah, J. (as he then was)
answered this question thus:
"...it is clear that, though the conviction of
respondent No. 1 was recorded by the trial court on
11th January, 1969, he was acquitted on 30th September,
1969 in appeal which acquittal had the effect of
completely wiping out the conviction. The appeal having
once been allowed, it has to be held that the
conviction and sentence were vacated with effect
655
from the date on which the conviction was recorded and
the sentence awarded. In a criminal case, acquittal in
appeal does not take effect merely from the date of the
appellate order setting aside the conviction; it has
the effect of retrospectively wiping out the conviction
and the sentence awarded by the lower court. The
disqualification relied upon by the appellant was laid
under s. 8(2) of the Act read with Article 102(1) (e)
of the Constitution. The provision is that a person
convicted by a court in India for any offence and
sentenced to imprisonment for not less than two years
shall be disqualified for a further period of five
years since his release. The argument on behalf of the
appellant was that, though respondent No. 1 was not
disqualified at the time of filing of nomination, he
was, in fact, disqualified on 9th February, 1969, the
date of polling, as well as on 11th February, 1969,
when the result was declared........
The argument overlooks the fact that an appellate
order of acquittal takes effect retrospectively and the
conviction and sentence are deemed to be set aside with
effect from the date they were recorded. Once on order
of acquittal has been made, it has to be held that the
conviction has been wiped out and did not exist at all.
The disqualification, which existed on the 9th or 11th
February, 1969 as a fact, was wiped out when the
conviction recorded on 11th January, 1969 was set aside
and that acquittal took effect from that very date. It
is significant that the High Court, under Section
100(1) (a) of the Act, is to declare the election of a
returned candidate to be void if the High Court is of
opinion that, on the date of his election, a returned
candidate was not qualified, or was disqualified, to be
chosen to fill the seat under the Constitution or the
Act. It is true that the opinion has to be formed as to
whether the successful candidate was disqualified on
the date of his election; but this opinion is to be
formed by the High Court at the time of pronouncing the
judgment in the election petition. In this case, the
High Court proceeded to pronounce the judgment on 27th
October, 1969. The High Court had before it the order
of acquittal which had taken effect retrospectively
from 11th January, 1969. It was therefore, impossible
for the High Court to arrive at the opinion that on
19th or 11th February 1969, respondent No. 1 was
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disqualified. The conviction and sentence had been
retrospectively wiped out, so that the opinion required
to be formed by the High Court to
656
declare the election void could not be formed. The
situation is similar to the one that could have come
into existence if Parliament itself had chosen to
repeal s.8(2) of the Act retrospectively with effect
from 11th January, 1979."
(emphasis added)
The essence of the decision is in the sentences which
have been underlined by us in the above extract. In sum,
what was laid down in Manni Lal’s case was that if the
disqualification of the returned candidate, viz., his
conviction and sentence exceeding two year’s imprisonment
which existed as a fact at the date of the election, is
subsequently set aside by the Appellate Court, then a
challenge to his election on the ground under Section 100(1)
(a) of the Act, in an election-petition pending in the High
Court at the date of such acquittal, must fail because the
acquittal has the effect of retrospectively wiping out the
disqualification as completely and effectively as if it
never had existed.
In other words, the ratio decidendi logically deducible
from the above extract, is that if the successful candidate
is disqualified for being chosen, at the date of his
election or at any earlier stage of any step in the election
process on account of his conviction and sentence exceeding
two years’ imprisonment, but his conviction and sentence are
set aside and he is acquitted on appeal before the
pronouncement of judgment in the election-petition pending
against him, his disqualification is annulled and rendered
non est with retroactive force from its very inception, and
the challenge to his election on the ground that he was so
disqualified is no longer sustainable.
Learned counsel for the respondent has tried to
distinguish Manni Lal’s case from the one before us on three
grounds. First, that in Manni Lal’s case, the election was
challenged under clause (a) or Section 100(1); whereas in
the instant case, the challenge is only on the ground under
clause (d) (i) of the Section, since the plea in the
election-petition on the ground under said clause (a) of
Section 100(1) was given at the time of arguments in the
High Court. Second, in Manni Lal’s case, the
disqualification on account of conviction and sentence of
the candidate concerned did not exist on the date of the
scrutiny of the nomination papers, but was incurred
subsequently to the acceptance of his nomination, whereas in
the present case, such disqualification existed as a fact
even at the date of the scrutiny of the nomination papers.
Third, in view of the mandate in Section 36(2) (a), for the
purpose of an enquiry under Section 100(1) (d) (i), the
existence or non-existence of the disqualification is to be
judged as on the date of the scrutiny of the nominations,
whereas in Manni Lal,
657
the legislative mandate of Section 36(2) (a) was
inapplicable, the challenge to the election being one under
Section 100(1) (a) only.
It appears to us that this three-fold feature pointed
out by the learned counsel amounts no more than to a
distinction without a difference. The basic ground of
challenge and material factual constituents thereof are
common in both these cases. In both these cases what has
been challenged is the election of the successful candidate.
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Although at the time of arguments in the High Court the
ground under clause (a) of Section 100(1) was not pressed
and no arguments were addressed with reference to that
clause, it had been pleaded and proved by the election-
petitioner that both at the date of the scrutiny of
nominations and at the date of the election, the appellant’s
disqualification existed as a fact. Another undisputed fact
apparent on the record is that the appellant was acquitted
by the appellate court before the decision of election-
petition in the High Court. As here, in Manni Lal also, such
disqualification of the successful candidate existed not
only at the date of his ’election’ as defined in Section
67A, but also at the date of the poll, which was an earlier
step in the process of "being chosen". As here, there also,
such disqualification had been wiped out with retroactive
force on account of his acquittal after the elections but
before the decision of the election petition by the High
Court. Similar to the third point raised here, in Manni Lal
also, it was contended that under section 100(1) (a), the
question whether the successful candidate was disqualified
on the date of his election was to be determined with
reference to the situation obtaining on that date only. This
contention was repelled with the observation that such
opinion had to be formed by the High Court at the time it
proceeds to pronounce the judgment in the election-petition
and High Court had at that time before it the order of
acquittal which had taken effect retrospectively from the
date on which the conviction had been recorded by the trial
court. Although the Court did not specifically say so, this
reasoning employed by the Court in negative the contention
of the election-petitioner in that case, appears to have
been spelled out from a construction of the phrase "if the
High Court is of opinion" used by the Legislature in the
opening part of Section 100(1). This phrase, be it noted,
qualifies not only clause (a), but also clause (d) of the
sub-section. Thus, the ratio of Manni Lal squarely and fully
applies to the present case. On the application of that
rule, the acquittal of the appellant herein by the appellate
court, during the pendency of the election-petition must be
held to have completely and effectively wiped out the
disqualification of the appellant with retrospective effect
from the date of the conviction, so that in the eye of law
it existed neither at the date of scrutiny of nominations,
nor at the date of the ’election’ or at any other stage of
the process of "being chosen".
658
In short, the acquittal of the appellant before the
decision of the election-petition pending in the High Court,
had with retrospective effect, made his disqualification
non-existent, even at the date of the scrutiny of
nominations. This being the position, the High Court could
not at the time of deciding the election-petition form an
opinion as to the ’existence’ of a non-existent ground and
sustain the challenge to the appellant’s election under
Section 100(1) (d) (i).
It is true that in order to adjudicate upon the
validity of the challenge to the appellant’s election under
clause (d) (i) of Section 100(1), what was required to be
determined by the High Court was whether the nomination of
the appellant was properly or improperly accepted by the
Returning Officer. But, in order to determine this question,
it was necessary for the High Court to decide, as a
preliminary step, whether the appellant was disqualified at
the date of scrutiny of the nomination papers, for if he was
disqualified, his nomination could not be said to have been
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properly accepted by the Returning Officer and if, on the
other hand, he was not disqualified, his nomination would
have to be regarded as properly accepted by the Returning
Officer. The primary question before the High Court,
therefore, was whether or not the appellant was disqualified
at the date of scrutiny of the nomination papers and it is
difficult to see how the determination of this question
could be made on any principle other than that governing the
determination of a similar question under clause (a) of
Section 100(1). If, as laid down in Manni Lal’s case, the
returned candidate cannot be said to be disqualified at the
date of the election, if before or during the pendency of
the election petition in the High Court his conviction is
set aside and he is acquitted by the appellate court, it
must be held, on the application of the same principle,
that, in like circumstances, the returned candidate cannot
be said to be disqualified at the date of the scrutiny of
the nomination papers. On this view. the appellant could not
be said to be disqualified at the date of scrutiny of the
nomination paper since his conviction was set aside in
appeal by this Court and if that be so, the conclusion must
inevitably follow that the nomination of the appellant was
properly accepted by the Returning Officer. The position is
analogous to that arising where a case is decided by a
Tribunal on the basis of the law then prevailing and
subsequently the law is amended with retrospective effect
and it is then held by the High Court in the exercise of its
writ jurisdiction that the order of the Tribunal discloses
an error of law apparent on the face of the record, even
though having regard to the law as it then existed, the
Tribunal was quite correct in deciding
659
the case in the manner it did, vide Venkatachalam v. Bombay
Dyeing & Manufacturing Company Limited.
Amritlal Ambalal Patel(ibid) cited by Shri Kacker is
not a parallel case. It is clearly distinguishable. The
facts therein were materially different from Manni Lal’s
case or the one before us. In that case, the election of
Amritlal Ambalal Patel to Gujarat Legislative Assembly was
challenged on the ground that he was on the date of scrutiny
of nominations less than 25 years of age-which was the
minimum age prescribed under Article 173(b) of the
Constitution and, as such, not being qualified for being
chosen, his nomination was wrongly accepted. The candidate
attained the age of 25 years on the date of election.
Notwithstanding this subsequent fact, it was held by the
Court that the nomination of the candidate had been
"improperly accepted" within the meaning of Section 100
(1)(d). The rationale of the decision was that the
attainment of the prescribed age by the candidate after the
date of scrutiny of nominations did not operate
retrospectively to remove his disqualification for being
chosen, with effect from the date of the scrutiny of the
nominations. The disqualification on the date of the
scrutiny remained unaffected. That was not a case like the
present one where the disqualification of the candidate
existing as a fact at the date of the nominations, due to
his conviction and sentence exceeding two years, was
retrospectively wiped out owing to his subsequent acquittal
by the appellate court, during the pendency of the elections
petition in the High Court.
It is possible that, difficult and anomalous situations
may arise if the rule in Manni Lal v. Parmai Lal is applied
to a converse hypothetical case wherein the candidate whose
nomination is rejected on account of his disqualification,
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viz., conviction and sentence exceeding two years’
imprisonment existing as a fact on the date of scrutiny of
nominations, brings an election-petition to challenge the
election of the returned candidate on the ground that his
nomination was improperly rejected, as his disqualification
had been, as a result of his subsequent acquittal by an
appellate court, annulled and obliterated with retroactive
force.
But we do not think it necessary to indulge in this
hypothetical and academic exercise. Firstly, the instant
case is not one where the election is being challenged under
Section 100(1) (c) on the ground that the election-
petitioner’s nomination was improperly rejected. Secondly,
it has not been urged before us by the learned
660
counsel for the respondent, that Manni Lal’s case was
wrongly decided and that its ratio needs reconsideration by
a larger Bench. All efforts of the learned counsel have been
directed to show that the principle enunciated in Manni
Lal’s case is inapplicable to the present case because on
facts, between these two cases, there is a difference and a
distinction, where, in reality, none that matters, really
exists. In this situation therefore, we would abide by the
principle of stare decisis and follow the ratio of Manni
Lal’s case, and in the result, hold that the acquittal of
the appellant in appeal prior to the pronouncement of the
judgment by the High Court in the election-petition had the
result of wiping out his disqualification as completely and
effectively as if it did not exist at any time including the
date of the scrutiny of the nomination papers and that his
nomination paper was properly accepted by the Returning
Officer. The challenge to the election of the appellant on
the ground under clause 100(1) (d) (i) must, therefore,
fail.
For all the foregoing reasons, we allow this appeal,
set aside the judgment of the High Court and dismiss the
election-petition of the respondent. In view of the law
point involved, we will leave the parties to pay and bear
their own costs throughout.
V.D.K. Appeal allowed.
661