Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4261 OF 2007
KISAN SHANKAR KATHORE …..APPELLANT(S)
VERSUS
ARUN DATTATRAY SAWANT & ORS. …..RESPONDENT(S)
J U D G M E N T
A.K. SIKRI, J.
The appellant herein was the successful candidate in the
election of legislative assembly, which he contested from 56,
Ambernath Constituency, Thane District, Maharashtra. There were
five candidates in the fray for which the elections were held on
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October 13, 2004 and the results were declared on October 16, 2004.
After he was declared elected, his election was challenged by the first
respondent, who is a voter in the said constituency. He filed the
election petition in the High Court of Judicature at Bombay stating that
the appellant's nomination had been improperly accepted by the
Returning Officer and the election was void due to non-compliance of
the provisions of the Constitution of India, the Representation of the
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People Act, 1951 (hereinafter referred to as 'the Act') as well as Rules
and Orders framed under the said Act.
2. The election petition was filed under Section 100(1)(d)(i) and (iv) of
the Act on the ground that in the nomination form filled in by the
appellant he had suppressed his dues payable to the Government,
suppressed the assets of his spouse and also suppressed the
information and assets of a partnership firm of which he is a partner.
The appellant contested the said petition. Evidence was led. After
hearing the arguments, the High Court passed judgment dated August
16, 2007 accepting the plea of the first respondent that the nomination
form of the appellant was defective and should not have been
accepted by the Returning Officer. Thus, while allowing the election
petition and setting aside of the election of the appellant, the High
Court recorded the non-disclosure on following counts:
a) Non-disclosure of dues to Maharashtra State
Electricity Board in respect of two service connections
held by him amounting to Rs.79,200/- and Rs.66,250/-.
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b) The appellant failed to disclose the ownership of
Bungalow No. 866 and the taxes dues thereof
amounting to Rs.3,445/- owned by his wife.
c) The appellant failed to disclose the particulars of the
vehicle MH-05-AC-55 owned by the wife.
d)The appellant is guilty of non-disclosure of property
owned by firm Padmavati Developers of which the
appellant is a partner, which owns two plots of lands
measuring 1313 sq.mtrs. and 1292 sq.mts. in Survey
No. 48, Hissa No. 9 of Mouze Kalyan, Taluka
Ambarnath, District Thane, Maharashtra.
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Challenging the impugned judgment, the present statutory
appeal is filed, as provided under Section 116A of the Act.
3. We may state, at the outset, that there is no dispute on facts, namely,
the appellant had not disclosed certain informations, as found by the
High Court and noted above, in his nomination form. Entire dispute
rests on the issue as to whether it was incumbent upon the appellant
to have disclosed such an information and non-disclosure thereof
rendered his nomination invalid and void. The nature of information
given by the appellant in his nomination form, on the basis of which
the appellant contends that it ought to have been treated as
substantial compliance, would be taken note of later at the
appropriate stage. We deem it appropriate to state the legal position
contained in the Act, Rules and Orders as well as the judgments of
this Court in order to understand as to whether there was a
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substantial compliance by the appellant in the form of information
given by him or it amounted to non-disclosure of the material
information warranting rejection of his nomination.
4. Since the petition filed before the High Court was under Section
100(1)(d)(i) and (iv), we first take note of these provisions, which are
to the following effect:
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“ 100. Grounds for declaring election to be void. – (1)
Subject to the provisions of sub-section (2) if the High
Court is of opinion –
xx xx xx
(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 or any nomination,
or
xx xx xx
(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.”
5. Section 100(1)(d) talks of result of election being 'materially affected'
by improper acceptance, we would like to reproduce here Section
33(1) of the Act, which mandates filing of a nomination paper
completed in the prescribed form in order to constitute it to be a valid
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nomination. It reads as under:
“33. Presentation of nomination paper and
requirement for a valid nomination. – (1) On or
before the date appointed under clause (a) of section 30
each candidate shall, either in person or by his
proposer, between the hours of eleven o'clock in the
forenoon and three o'clock in the afternoon deliver to the
returning officer at the place specified in this behalf in
the notice issued under section 31 a nomination paper
completed in the prescribed form and signed by the
candidate and by an elector of the constituency as
proposer:
xx xx xx”
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6. Other relevant provisions are Sections 33A, 34, 35 and 36 of the Act,
which are as under:
“ 33A. Right to information. – (1) A candidate
shall, apart from any information which he is required to
furnish, under this Act or the rules made thereunder, in
his nomination paper delivered under sub-section(1) of
section 33, also furnish the information as to whether –
(i) he is accused of any offence punishable with
imprisonment for two years or more in a pending
case in which a charge has been framed by the
court of competent jurisdiction;
(ii) he has been convicted of an offence other than
any offence referred to in sub-section (1) or sub-
section (2), or covered in sub-section (3), of
section 8 and sentenced to imprisonment for one
year or more.
(2) The candidate or his proposer, as the case may be,
shall, at the time of delivering to the returning officer the
nomination paper under sub-section (1) of section 33,
also deliver to him an affidavit sworn by the candidate in
a prescribed form verifying the information specified in
sub-section (1).
(3) The returning officer shall, as soon as may be after
the furnishing of information to him under sub-section
(1), display the aforesaid information by affixing a copy
of the affidavit, delivered under sub-section (2), at a
conspicuous place at his office for the information of the
electors relating to a constituency for which the
nomination paper is delivered.”
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xx xx xx
34. Deposits. – (1) A candidate shall not be deemed to
be duly nominated for election from a constituency
unless he deposits or causes to be deposited. –
(a) in the case of an election from a Parliamentary
constituency, a sum of twenty-five thousand
rupees or where the candidate is a member of a
Scheduled Caste or Scheduled Tribe, a sum of
twelve thousand five hundred rupees; and
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(b) in the case of an election from an Assembly or
Council constituency, a sum of ten thousand
rupees or where the candidate is a member of a
Scheduled Caste or Scheduled Tribe, a sum of
five thousand rupees:
Provided that where a candidate has been nominated by
more than one nomination paper for election in the
same constituency, not more than one deposit shall be
required of him under this sub-section.
(2) Any sum required to be deposited under sub-section
(1) shall not be deemed to have been deposited under
that sub-section unless at the time of delivery of the
nomination paper under sub-section (1) or, as the case
may be, sub-section (1A) of section 33 the candidate
has either deposited or caused to be deposited that sum
with the returning officer in cash or enclosed with the
nomination paper a receipt showing that the said sum
has been deposited by him or on his behalf in the
Reserve Bank of India or in a Government Treasury.
xx xx xx
35. Notice of nominations and the time and place
for their scrutiny. – The returning officer shall, on
receiving the nomination paper under sub-section (1) or,
as the case may be, sub-section (1A) of section 33,
inform the person or persons delivering the same of the
date, time and place fixed for the scrutiny of nominations
and shall enter on the nomination paper its serial
number, and shall sign thereon a certificate stating the
date on which and the hour at which the nomination
paper has been delivered to him; and shall, as soon as
may be thereafter, cause to be affixed in some
conspicuous place in his office a notice of the
nomination containing descriptions similar to those
contained in the nomination paper, both of the candidate
and of the proposer.
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36. Scrutiny of nomination. – (1) On the date fixed for
the scrutiny of nominations under section 30, the
candidates, their election agents, one proposer of each
candidate, and one other person duly authorised in
writing by each candidate but no other person, may
attend at such time and place as the returning officer
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may appoint; and the returning officer shall give them all
reasonable facilities for examining the nomination
papers of all candidates which have been delivered
within the time and in the manner laid down in section
33.
(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 things necessary, reject
any 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 sections 4 and 14 of the
Government of Union Territories Act, 1963; or
(b) that there has been a failure to comply with any
of the provisions of section 33 or section 34; or
(c) that the signature of the candidate or the
proposer on the nomination paper is not
genuine.
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(3) Nothing contained in clause (b) or clause (c) of
sub-section (2) shall be deemed to authorise the
rejection of the nomination of any candidate on the
ground of any irregularity in respect of a nomination
paper, if the candidate has been duly nominated by
means of another nomination paper in respect of which
no irregularity has been committed.
(4) The returning officer shall not reject any nomination
paper on the ground of any defect which is not of a
substantial character.
(5) The returning officer shall hold the scrutiny on the
date appointed in this behalf under clause (b) of section
30 and shall not allow any adjournment of the
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proceedings except when such proceedings are
interrupted or obstructed by riot or open violence or by
causes beyond his control:
Provided that in case an objection is raised by the
returning officer or is made by any other person the
candidate concerned may be allowed time to rebut it not
later than the next day but one following the date fixed
for scrutiny, and the returning officer shall record his
decision on the date to which the proceedings have
been adjourned.
(6) The returning officer shall endorse on each
nomination paper his decision accepting or rejecting the
same and, if the nomination paper is rejected, shall
record in writing a brief statement of his reasons for
such rejection.
(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 (43 of 1950).
(8) Immediately after all the nomination papers have
been scrutinized and decisions accepting or rejecting
the same have been recorded, the returning officer shall
prepare a list of validly nominated candidates, that is to
say, candidates whose nominations have been found
valid, and affix it to his notice board.”
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7. After having taken note of the aforesaid statutory provisions, let us
now proceed to discuss some of the important judgments of this Court
and to cull out legal principles therefrom on the subject, which have a
direct bearing on the issue of disclosure of information.
8. First case that needs a mention, which is a milestone and trigerred
electoral reforms in this country, is Union of India v. Association for
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Democratic Reforms & Anr. , (2002) 5 SCC 294. In this case, the
Court held that it was incumbent upon every candidate, who is
contesting election, to give information about his assets and other
affairs, which requirement is not only essential part of fair and free
elections, inasmuch as, every voter has a right to know about these
details of the candidates, such a requirement is also covered by
freedom of speech granted under Article 19(1)(a) of the Constitution
of India. The summing up the entire discussion in the judgment can
be found in the following passage:
“46. To sum up the legal and constitutional position
which emerges from the aforesaid discussion, it can be
stated that:
1. The jurisdiction of the Election Commission is wide
enough to include all powers necessary for smooth
conduct of elections and the word “elections” is used in
a wide sense to include the entire process of election
which consists of several stages and embraces many
steps.
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2. The limitation on plenary character of power is
when Parliament or State Legislature has made a valid
law relating to or in connection with elections, the
Commission is required to act in conformity with the said
provisions. IN case where law is silent, Article 324 is a
reservoir of power to act for the avowed purpose of
having free and fair election. The Constitution has taken
care of leaving scope for exercise of residuary power by
the Commission in its own right as a creature of the
Constitution in the infinite variety of situations that may
emerge from time to time in a large democracy, as every
contingency could not be foreseen or anticipated by the
enacted laws or the rules. By issuing necessary
directions, the Commission can fill the vacuum till there
is legislation on the subject. In Kanhiya Lal Omar case
(1985) 4 SCC 628 the Court construed the expression
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“superintendence, direction and control” in Article 324(1)
and held that a direction may mean an order issued to a
particular individual or a precept which many may have
to follow and it may be a specific or a general order and
such phrase should be construed liberally empowering
the Election Commission to issue such orders.
3. The word “elections” includes the entire process of
election which consists of several stages and it
embraces many steps, some of which may have an
important bearing on the process of choosing a
candidate. Fair election contemplates disclosure by the
candidate of his past including the assets held by him so
as to give a proper choice to the candidate according to
his thinking and opinion. As stated earlier, in Common
Cause case , (1996) 2 SCC 752 the Court dealt with a
contention that elections in the country are fought with
the help of money power which is gathered from black
sources and once elected to power, it becomes easy to
collect tons of black money, which is used for retaining
power and for re-election. If on an affidavit a candidate
is required to disclose the assets held by him at the time
of election, the voter can decide whether he could be re-
elected even in case where he has collected tons of
money.
Presuming, as contended by the learned Senior
Counsel Mr. Ashwani Kumar, that this condition may not
be much effective for breaking a vicious circle which has
polluted the basic democracy in the country as the
amount would be unaccounted. May be true, still this
would have its own effect as a step-in-aid and voters
may not elect law-breakers as law-makers and some
flowers of democracy may blossom.
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4. To maintain the purity of elections and in particular
to bring transparency in the process of election, the
Commission can ask the candidates about the
expenditure incurred by the political parties and this
transparency in the process of election would include
transparency of a candidate who seeks election or re-
election. In a democracy, the electoral process has a
strategic role. The little man of this country would have
basic elementary right to know full particulars of a
candidate who is to represent him in Parliament where
laws to bind his liberty and property may be enacted.
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5.The right to get information in democracy is
recognised all throughout and it is a natural right flowing
from the concept of democracy. At this stage, we would
refer to Article 19(1) and (2) of the International
Covenant on Civil and Political Rights, which is as
under:
“(1) Everyone shall have the right to hold opinions
without interference.
(2) Everyone shall have the right to freedom of
expression; this right shall include freedom to seek,
receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or in print,
in the form of art, or through any other media of his
choice.”
6. On cumulative reading of a plethora of decisions of
this Court as referred to, it is clear that if the field meant
for legislature and executive is left unoccupied
detrimental to the public interest, this Court would have
ample jurisdiction under Article 32 read with Articles 141
and 142 of the Constitution to issue necessary
directions to the executive to subserve public interest.
7. Under our Constitution, Article 19(1)(a) provides for
freedom of speech and expression. Voter's speech or
expression in case of election would include casting of
votes, that is to say, voter speaks out or expresses by
casting vote. For this purpose, information about the
candidate to be selected is a must. Voter's (little man –
citizen's) right to know antecedents including criminal
past of his candidate contesting election for MP or MLA
is much more fundamental and basic for survival of
democracy. The little man may think over before
making his choice of electing law-breakers as law-
makers.
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9. On the basis of the aforesaid discussion, this Court issued directions
for filing affidavit and the nature of information which was to be given,
spelling out the same in para 48 of the judgment, which reads as
under:
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“48. The Election Commission is directed to call for
information on affidavit by issuing necessary order in
exercise of its power under Article 324 of the
Constitution of India from each candidate seeking
election to Parliament or a State Legislature as a
necessary part of his nomination paper, furnishing
therein, information on the following aspects in relation
to his/her candidature:
(1) Whether the candidate is convicted/acquitted/
discharged of any criminal offence in the past – if any,
whether he is punished with imprisonment or fine.
(2) Prior to six months of filing of nomination, whether
the candidate is accused in any pending case, of any
offence punishable with imprisonment for two years or
more, and in which charge is framed or cognizance is
taken by the court of law. If so, the details thereof.
(3) The assets (immovable, movable, bank balance,
etc.) of a candidate and of his/her spouse and that of
dependants.
(4) Liabilities, if any, particularly whether there are any
overdues of any public financial institution or
government dues.
(5) The educational qualifications of the candidate.”
10. The judgment in Association for Democratic Reforms led to
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amendment in the Act with the induction of Section 33A (already
reproduced above) as well as Section 33B therein. Election
Commission also laid down guidelines in the year 2002. Insofar as
Section 33B is concerned, it was struck down by this Court in the
case of People's Union for Civil Liberties (PUCL) & Anr. v. Union
of India & Anr., (2003) 4 SCC 399.
Civil Appeal No. 4261 of 2007 Page 12 of 40
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11. In order to bring the directions contained in the aforesaid two
judgments within the statutory framework, revised guidelines were
issued by the Election Commission on March 23, 2006. In para 5 of
these guidelines, para 14 of the judgment in Association for
Democratic Reforms is reproduced. Likewise, para 13 takes note of
the directions given in the case of People's Union for Civil
Liberties. In para 15, it is noted that the Supreme Court, while
striking down Section 33B of the Act, stated that earlier directions of
Election Commission dated June 28, 2002 would continue to operate
subject to the afore-mentioned directions of the Court and, therefore,
revised directions had become necessary. In para 16, these
directions are issued in supersession of earlier directions dated June
28, 2002. Paras 1 and 3 of these guidelines/directions are relevant
for us, and, therefore, we reproduce the same as under:
“(1) Every candidate at the time of filing his nomination
paper for any election to the Council of State, House of
the People, Legislative Assembly of a State of the
Legislative Council of a State having such a council,
shall furnish full and complete information in regard to
the matters specified by the Hon'ble Supreme Court and
quoted in paras 13 and 14 above, in an affidavit, the
format whereof is annexed hereto as Annexure-I to this
order.
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xx xx xx
(3) Non-furnishing of the affidavit by any candidate
shall be considered to be violation of the order of the
Hon'ble Supreme Court and the nomination of the
candidate concerned shall be liable to rejection by the
returning officer at the time of scrutiny of nomination
such non-furnishing of the affidavit.”
Civil Appeal No. 4261 of 2007 Page 13 of 40
Page 13
12. We would also like to reproduce para 17 of these guidelines, which
concerns the case at hand:
“17. For the removal of doubt, it is hereby clarified that
the earlier direction contained in para 14(4) of the earlier
order dated 28th June, 2002, in so far as verification of
assets and liabilities by means of summary enquiry and
rejection of nomination paper on the ground of
furnishing wrong information or suppressing material
information is not enforceable in pursuance of the order
dated 13th March, 2003 of the Apex Court. It is further
clarified that apart from the affidavit Annexure-I hereto
referred to in para 16(1) above, the candidate shall have
to comply with the other requirements as spelt out in the
Representation of the People Act, 1951, as amended by
the Representation of the People (Third Amendment)
Act, 2002 and the Conduct of Election Rules, 1961, as
amended by the Conduct of Elections (Amendment)
Rules, 2002.”
13. The meaning and scope of these guidelines came up for discussion
before this Court in Resurgence India v. Election Commission of
India & Anr., (2013) 11 Scale 348. That judgment was rendered in a
writ petition filed under Article 32 of the Constitution of India for
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issuance of specific directions to effectuate meaningful
implementation of the judgments in Association of Democratic
Reforms , People's Union for Civil Liberties and also to direct the
Election Commission to make it compulsory for the Returning Officer
to ensure that the affidavits filed by the contestants are complete in all
respects and to reject the affidavits having blank particulars. This
petition, thus was filed taking note of the practice which had started
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Page 14
prevailing, namely, many candidates were leaving some of the
columns blank in their affidavits thereby omitting to provide the
required information. As per the petitioner in that case, in such an
eventuality the Returning Officer should reject the nomination
whereas the Union of India pleaded that it should be treated at par
with filing false affidavits and the candidate filing such an affidavit
should be prosecuted under Section 125A of the Act. The Court took
note of the provisions of Sections 33A, 36 and 125A of the Act and
thereafter referred to the earlier three Judge Bench judgment of this
Court in Shaligram Shrivastava v. Naresh Singh Patel , (2003) 2
SCC 176, wherein the Court had discussed the power of rejecting the
nomination paper by the Returning Officer of a candidate filing the
affidavit with particulars left blank. The relevant discussion in this
behalf is in paras 15 and 16 of the said judgment, which read as
under:
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“15. Although, the grounds of contention may not be
exactly similar to the case on hand but the reasoning
rendered in that verdict will come in aid for ariving at a
decision in the given case. In order to arrive at a
conclusion in that case, this Court traversed through the
objective behind filing the proforma. The proforma
mandated in that case was required to be filed as to the
necessary and relevant information with regard to the
candidate in the light of Section 8 of the RP Act. This
Court further held that at the time of scrutiny, the
Returning Officer is entitled to satisfy himself whether
the candidate is qualified and not disqualified, hence,
the Returning Officer was authorized to seek such
information to be furnished at the time or before scrutiny.
It was further held that if the candidate fails to furnish
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Page 15
such information and also absents himself at the time of
the scrutiny of the nomination papers, then he is
obviously avoiding a statutory inquiry being conducted
by the Returning Officer under Section 36(2) of the RP
Act relating to his being not qualified or disqualified in
the light of Section 8 of the RP Act. It is bound to result
in defect of a substantial character in the nomination.
This Court further held as under:
“17. In the case in hand the candidate had failed to
furnish such information as sought on the proforma
given to him and had also failed to be present
personally or through his representative at the time
of scrutiny. The statutory duty/power of Returning
Officer for holding proper scrutiny of nomination
paper was rendered nugatory. No scrutiny of the
nomination paper could be made under Section
36(2) of the Act in the light of Section 8 of the Act.
It certainly rendered the nomination paper suffering
from defect of substantial character and the
Returning Officer was within his rights in rejecting
the same.”
16. It is clear that the Returning Officers derive the
power to reject the nomination papers on the ground
that the contents to be filled in the affidavits are
essential to effectuate the intent of the provisions of the
RP Act and as a consequence, leaving the affidavit
blank will in fact make it impossible for the Returning
Officer to verify whether the candidate is qualified or
disqualified which indeed will frustrate the object behind
filing the same. In concise, this Court in Shaligram
(supra) evaluated the purpose behind filing the proforma
for advancing latitude to the Returning Officers to reject
the nomination papers.”
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14. The legal position is, thereafter, summarized in para 27, which
becomes important for our purpose and, therefore, we produce the
same hereunder:
“ 27. What emerges from the above discussion can
be summarized in the form of following difections:
(i) The voter has the elementary right to know full
particulars of a candidate who is to represent him in the
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Parliament/Assemblies and such right to get information
is universally recognized. Thus, it is held that right to
know about the candidate is a natural right flowing from
the concept of democracy and is an integral part of
Article 19(1)(a) of the Constitution.
(ii) The ultimate purpose of filing of affidavit along with
the nomination paper is to effectuate the fundamental
right of the citizens under Article 19(1)(a) of the
Constitution of India. The citizens are supposed to have
the necessary information at the time of filing of
nomination paper and for that purpose, the Returning
Officer can very well compel a candidate to furnish the
relevant information.
(iii) Filing of affidavit with blank particulars will render
the affidavit nugatory.
(iv) It is the duty of the Returning Officer to check
whether the information required is fully furnished at the
time of filing of affidavit with the nomination paper since
such information is very vital for giving effect to the 'right
to know' of the citizens. If a candidate fails to fill the
blanks even after the reminder by the Returning Officer,
the nomination paper is fit to be rejected. We do
comprehend that the power of Returning Officer to reject
the nomination paper must be exercised very sparingly
but the bar should not be laid so high that the justice
itself is prejudiced.
(v) We clarify to the extent that Para 73 of People's
Union for Civil Liberties case (supra) will not come in the
way of the Returning Officer to reject the nomination
paper when affidavit is filed with blank particulars.
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(vi) The candidate must take the minimum effort to
explicitly remark as 'NIL' or 'Not Applicable' or 'Not
known' in the columns and not to leave the particulars
blank.
(vii) Filing of affidavit with blanks will be directly hit by
Section 125A(i) of the RP Act. However, as the
nomination paper itself is rejected by the Returning
Officer, we find no reason why the candidate must be
again penalized for the same act by prosecuting
him/her.”
Civil Appeal No. 4261 of 2007 Page 17 of 40
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15. Keeping in mind the aforesaid statutory framework as well as the legal
principles enunciated in the afore-noted judgments, we now proceed
to discuss the nature of information about which there was non-
disclosure by the appellant.
RE – Non-disclosure of Government dues
16. The appellant had not disclosed, in his nomination paper/ affidavit,
that he was in arrears in respect of two electricity meters standing in
his name, in respect whereof electricity connection was given by the
Maharashtra State Electricity Board (for short, 'MSEB'). The
outstanding amount in these two meters was Rs.79,200/- and
Rs.66,250/- respectively. It was proved, on the basis of evidence led
by the respondent herein, that the aforesaid dues were outstanding
against these two electricity connections. The defence of the
appellant, however, was that one electricity meter, which was in his
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residential bungalow, was defective and complaints in this behalf were
made to MSEB from time to time and because of that dispute he was
orally advised by the officials of MSEB not to pay the amount.
17. The High Court proceeded on the assumption that there was a
dispute. However, as per the High Court that could not be a valid
reason for not disclosing this information with a note that the matter
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was pending review at the hands of MSEB. Thereafter, the High
Court posed the question as to whether such non-disclosure can be
treated as a technical defect or it is a substantive one. As per the
High Court, the answer could be found by adverting to the form and
the affidavits to be filed along with the nomination form. These forms
required the candidates to disclose his liabilities/overdues to public
financial institution and Government dues. Since MSEB is a
Government body, the appellant was supposed to give this
information. The High Court opined that non-disclosure of this
information, which is very vital to enable the voter to form his opinion
about the candidate's antecedents, resulted in misinformation and
disinformation thereby influencing the voters to take an uninformed
decision. The discussion on this aspect is summed up by the High
Court in the following manner:
“Accordingly, I have no hesitation in taking the view that
it is a case of non-disclosure of liability in respect of
outstanding electricity bills payable to Government
Undertaking (M.S.E.B.); and that non-disclosure is a
substantive defect in the affidavits filed along with
nomination form. The test to hold that the defect is
substantive, in my opinion, is not the amount involved,
but the conscious act of non-disclosure and suppression
of that fact. It would be a case of technical defect if
there was some clerical error in the information
disclosed by the candidate or for that matter, a case of
omission due to lack of knowledge of existence of such
dues. In the present case, the Respondent was
conscious and aware of the fact that on the date of filing
of the nomination form, there were two outstanding
electricity bills in relation to two meters standing in his
name, payable to M.S.E.B. It would have been a
JUDGMENT
Civil Appeal No. 4261 of 2007 Page 19 of 40
Page 19
different matter if the Respondent was unaware of that
fact or that no such bill was ever issued by the M.S.E.B.
That is not the case of the Respondent. Thus
understood, non-disclosure about the outstanding
electricity bill in the sum of Rs. 79,200/- payable by the
Respondent to M.S.E.B. Is a substantive defect in the
affidavit. Resultantly, the nomination form filed along
with such affidavit would become tainted and for which
reason, it will have to be held that the same has been
improperly accepted within the meaning of Section
100(1)(d)(i) of the Act. Besides, the candidate has failed
to comply with the requirements of the order issued by
the Election Commission in exercise of powers under
Article 324(1) of the Constitution of India which order is
founded on the Law declared by the Apex Court in the
case of Union of India vs. Association for Democratic
Reforms (supra) and binding under Article 141 of the
Constitution, therefore, affecting his nomination as well
as the Election being void under Section 100(1)(d)(iv) of
the Act.”
18. Insofar as outstanding dues in respect of the second electricity meter
are concerned, that pertained to premises which had been let out by
the appellant to his tenants. There was no dispute that the amount
was outstanding. However, the defence of the appellant was that the
primary liability of making payment was that of the tenants. The High
JUDGMENT
Court had discarded this defence with the observations that electricity
meter stood in the name of the appellant in relation to which there
was an outstanding, which amount was payable on the date of filing of
the nomination. Even the premises where this meter had been
installed were owned by the appellant. Therefore, in law, it was the
appellant who was liable to be proceeded against for recovery of the
amount and this fact was enough justification to disclose the aforesaid
Civil Appeal No. 4261 of 2007 Page 20 of 40
Page 20
outstanding. As per the High Court, even this non-disclosure
amounted to substantive defect.
On that basis, the High Court held that non-disclosure of
these Government dues rendered the nomination paper invalid and,
therefore, it was a case of improper acceptance.
. RE – Non-disclosure of bungalow No. 866 in the name of spouse
and outstanding taxes thereof
19. Bungalow No. 866 at Badlapur in the limits of Kulgaon-Badlapur
Municipal Council stands in the name of Kamal Kishore Kathore, wife
of the appellant. At the time of filing the nomination, there were
municipal dues in the sum of Rs.3,465/-. Allegation of the first
respondent was that both the aforesaid informations were suppressed
and not disclosed in the affidavit filed by the appellant along with the
nomination form. According to him, this was crucial information
JUDGMENT
regarding immovable property owned by the appellant's wife,
suppression whereof amounted to filing a defective affidavit and such
an affidavit was no affidavit in the eyes of law.
20. Significantly, the averment of the first respondent in the election
petition that the appellant had suppressed information regarding the
aforesaid immovable property belonging to his wife was not
specifically denied by the appellant. The appellant only denied the
Civil Appeal No. 4261 of 2007 Page 21 of 40
Page 21
liability of taxes pertaining to this property, that too on the ground that
this property was required to be put to revaluation and reassessment
for the purpose of assessing the taxes and for this purpose since the
measurement of the property was undertaken to assess the taxable
value, no demand notices were issued by the municipal authority.
Even hearing regarding re-assessment took place on December 28,
2014 before the Collector and it is only after the completion of the
reassessment work the municipal authority had issued tax demand
notices.
21. In view of the aforesaid, the High Court observed that as far as the
ownership of the property in the name of the wife of the appellant is
concerned, it was a clear case of non-disclosure and the ownership
was proved even on the basis of evidence produced before the Court.
As far as non-payment of municipal dues is concerned, the High
JUDGMENT
Court noted that the appellant merely explained the circumstances in
his written statement as to why the municipal taxes in relation to that
property had not been paid. However, the municipal taxes were paid
in part on October 28, 2004, after the date of filing of nomination with
the payment of Rs.1,783/- pertaining to the year 2003-04. It would
show that the appellant was in arrears. The Court also discussed the
evidence on this aspect, namely, about the purported dispute relating
Civil Appeal No. 4261 of 2007 Page 22 of 40
Page 22
to the reassessment as set up by the appellant in his defence and has
returned a finding of fact that, in fact, there were arrears of municipal
taxes in relation to that house.
22. As far as non-disclosure of the immovable property is concerned, the
only reply given by the appellant was that there was a substantial
compliance because of the reason that the appellant in his affidavit
had disclosed the value of all the properties belonging to him and his
spouse, in the sum of Rs.11,10,000/-. The High Court, however,
found that no such case was made out in the written statement.
Moreover, in the affidavit filed by the appellant, against the column of
immovable properties, he had disclosed the properties at Badlapur
and Kulgaon, valued at Rs.11,10,000/-, shown against the column
'Self'. Thus, the valuation of the properties given in the affidavit was
of those properties which belong to the appellant and, therefore, it
JUDGMENT
was a clear case of non-disclosure of wife's property. This non-
disclosure is also taken as a material defect. Summing up the
discussion on this aspect, the High Court, in para 74, observed as
under:
“74. Insofar as the present case is concerned, as is
mentioned earlier, the fact asserted by the Petitioner is
that the Respondent has not disclosed the ownership of
his wife in relation to house No. 866/4 in the affidavit “at
all”. That allegation has remained unchallenged and
undenied. In my opinion, therefore, there is substance
in the stand taken on behalf of the Petitioner that the
Civil Appeal No. 4261 of 2007 Page 23 of 40
Page 23
affidavit filed by the Respondent along with the
nomination paper is only to do lip-service and is no
affidavit at all as is required by the mandate of law or the
order issued by the Election Commission which is
founded on the Law declared by the Apex Court. As the
affidavit filed by the Respondent along with the
nomination form suffers from this substantive defect, the
nomination of the Respondent has been improperly
accepted within the meaning of Section 100(1)(d)(i) of
the Act. Besides, the election of the Respondent was
void also on account of non-compliance of the order
passed by the Election Commission under Article 324 of
the Constitution of India, which is founded on the Law
declared by the Apex Court under Article 141 of the
Constitution of India, within the meaning of Section
100(1)(d)(iv) of the Act.”
RE – Non-disclosure of vehicle MH-05-AC-555 owned by the
appellant's wife
23. Here again, from the detailed discussion contained in the impugned
judgment of the High Court, it becomes clear that by leading requisite
and sufficient evidence, the first respondent proved that wife of the
appellant owned the aforesaid vehicle and the particulars thereof
were not disclosed. The defence of the appellant was that he had
JUDGMENT
mentioned the value thereof in his affidavit, but accepted that it was
against column 'Self' and not in the independent column of his
spouse. His defence is discussed and rejected by the High Court in
the following manner:
“89. On analysis of the pleadings, it follows that the
Respondent admits that motor vehicle in question is
owned by his wife. However, it is not his case that in the
nomination form, he has disclosed the ownership of the
said vehicle of his wife. Perhaps, the Respondent
intends to suggest that he has substantially complied
Civil Appeal No. 4261 of 2007 Page 24 of 40
Page 24
with the requirements by disclosing the ownership of
motor vehicle valued Rs.5,50,000/- and that it was
purchased against loan given by M & M Financial
Services Ltd.
90. Before we deal with the ocular evidence of the
parties, it will be useful to make reference to the details
to be disclosed by the candidate as per the prescribed
affidavit. The requirement is that the candidate should
disclose the “details of the motor vehicles” owned and
possessed by him, his wife and/or other dependent
members of his family separately. The Respondent,
however, against the said column has only mentioned
figure of Rs.5,50,000/- under the column 'Self', which
gives an impression that the Respondent himself owns
vehicle valued Rs.5,50,000/- and nothing more. No
details of the motor vehicle such as number of vehicle,
the make, the model such as economic, luxury or the
year of purchase and the like are disclosed so as to
enable the voters to assess whether the details
disclosed are correct or undervalued, including the
legitimate means and capability of the candidate to
possess such assets. As in the case of disclosure made
by the Respondent in respect of buildings, in similar
manner, the disclosure in respect of vehicle is also
incomplete, vague and misleading. The candidate
cannot get away with the explanation that he has
disclosed some amount in one of the columns as
sufficient or substantial compliance. The purpose of
disclosure of assets (movable and immovable) and
liabilities to be made by the candidate, is to educate the
voters about the complete financial status of the
candidate, which information also facilitates the voter to
assess whether the assets (movable and immovable)
declared by the candidate have been procured by him
out of his legitimate and known source of income. The
voters have a fundamental right to know and receive
such information about the candidate before they take
an informed decision to elect their candidate. As it is the
fundamental right of the voters, there is corresponding
duty on the candidate to disclose truthful and complete
information regarding the assets (movable and
immovable) as per the prescribed affidavits which forms
integral part of the nomination form.”
JUDGMENT
Civil Appeal No. 4261 of 2007 Page 25 of 40
Page 25
RE – Non-disclosure of property purchased in the name of the
firm
24. The first respondent had alleged that the appellant has a right, title
and interest in land measuring 1330 sq.mts. being Survey No. 48,
Hissa No. 9, Plot No.2 and also in land admeasuring about 1292
sq.mts. being Survey No. 48, Hissa No. 9, Plot No.3 at Mouje Kalyan,
Taluka Ambernath, District Thane. These properties are purchased in
the name of the partnership firm M/s. Padmavati Developers under
agreement of development and sale. The appellant was one of the
partners in the said firm. However, the appellant had not disclosed
his interest in the aforesaid assets in the affidavit filed along with the
nomination form. The defence of the appellant in relation to this
allegation was that he had retired from the partnership firm in the year
2003 and in his letter dated October 28, 2004 sent to the Returning
Officer, he had stated that the aforesaid two properties do not belong
JUDGMENT
to him. The High Court noted that admittedly there was no reference
about the two properties in the affidavits filed along with the
nomination form. Further, it was a common case that M/s. Padmavati
Developers was formed as a partnership firm in the year 1995, of
which the appellant was one of the partners. There was also no
dispute that the bank account was operated in the name of the said
partnership firm and appellant was one of the joint signatory. Thus,
Civil Appeal No. 4261 of 2007 Page 26 of 40
Page 26
the only aspect which needed determination was as to whether the
appellant had retired from the said partnership firm in November
2003, as claimed by him. However, from the plethora of documentary
evidence placed on record, the High Court returned a finding that
those documents clearly show that the appellant continued to remain
an active partner even after 2003 and was, in fact, a partner on the
date of filing of the nomination. Apart from various documents
revealing and establishing this fact, most important document was the
Deed of Dissolution of the partnership firm, which was dated January
11, 2005 and at the time of evidence, the appellant had admitted the
contents thereof, as well as the signatures of the three partners
appearing on that document.
The High Court summed up the decision on this aspect in the
following manner:
“124. On overall analysis of the evidence, I have
no hesitation in concluding that the Petitioner has
established the allegation that the Respondent
continued to be partner of the partnership firm
Padmavati Developers at least till December 2004. It is
also matter of record and admitted position that neither
the Respondent nor any other partner of Padmavati
Developers caused to give public notice of the
retirement of the partner or for that matter, intimation to
the Registrar of Firms till January 2005. Obviously,
intimation has been sent to the Registrar of Firms only
after the institution and service of the present Election
Petition, having realised the seriousness of the
allegation. If so, it was obligatory on the part of the
Respondent to disclose his interest in the properties
purchased in the name of the said firm.”
JUDGMENT
Civil Appeal No. 4261 of 2007 Page 27 of 40
Page 27
25. It would be pertinent to mention here that the first respondent had
alleged non-disclosure of many other assets, liabilities, etc. or
suppression of other material information in the affidavits. However,
apart from the aforesaid four non-disclosures, other allegations have
not been accepted by the High Court. We would also like to mention
at this stage itself that on all the four counts the High Court has
recorded finding of facts, which are based on the evidence produced
on record. As would be noted hereinafter, learned senior counsel
appearing for the appellant did not even attempt to argue that these
findings are wrong on facts. He only made legal submissions and his
entire endeavour was that for non-disclosure of the aforesaid
information, the High Court could not have held that the nomination
was wrongly accepted and further that since there was a substantial
compliance, there was no reason to set aside the election of the
appellant.
JUDGMENT
26. On these aspects, the High Court had framed issues No. 7 and 8,
which are as under:
“(7) Does the Petitioner proves that the Respondent's
Nomination Form is improperly accepted by the
Returning Officer”
(8) Whether on account of improper acceptance of the
nomination paper, the Election result is materially
affected?”
Civil Appeal No. 4261 of 2007 Page 28 of 40
Page 28
27. On Issue No.7, finding of the High Court is that nomination was
improperly accepted by the Returning Officer by giving the following
reasons:
“130. That takes me to the next issue as to
whether Petitioner proves that the Respondent's
nomination form is improperly accepted by the
Returning Officer? Insofar as this issue is concerned,
the Respondent may be right to the extent that the
Returning Officer cannot be faulted for having accepted
the nomination form of the Respondent. That was
required to be accepted inspite of the objection, in view
of the decision of the Apex Court in the case of PUCL
(supra) and the order issued by the Election
Commission on the basis of the Law declared in the said
Judgment. Inasmuch as, it was not open to the
Returning Officer to enquire into contentious issues
raised in this Petition in the summary enquiry at the
stage of scrutiny of nomination forms. Those matters
necessarily have to be addressed only after it is
disclosed in an enquiry upon taking evidence on the
relevant facts at the trial of the Election Petition. That
does not mean that the nomination of Respondent was
proper and lawful. As the Respondent's nomination
paper suffered from the defects already referred to in
the earlier part of this decision, it is plainly a case of
improper acceptance of his nomination paper by the
Returning Officer, covered by the rigours of Section
100(1)(d)(i) of the Act. The issue No.7 will have to be
answered accordingly.”
JUDGMENT
28. Issue No. 8 pertains to the question as to whether the election result
was materially affected because of non-disclosure of the aforesaid
information. The High Court took note of provisions of Section 100(1)
(d)(i) and (iv) and discussed the same. Thereafter, some judgments
cited by the appellant were distinguished and deciding this issue
against the appellant, the High Court concluded as under:
Civil Appeal No. 4261 of 2007 Page 29 of 40
Page 29
“137. In my opinion, it is not necessary to elaborate
on this matter beyond a point, except to observe that
when it is a case of improper acceptance of nomination
on account of invalid affidavit or no affidavit filed
therewith, which affidavit is necessarily an integral part
of the nomination form; and when that challenge
concerns the returned candidate and if upheld, it is not
necessary for the Petitioner to further plead or prove
that the result of the returned candidate has been
materially affected by such improper acceptance.
138. The avowed purpose of filing the affidavit is to
make truthful disclosure of all the relevant matters
regarding assets (movable and immovable) and
liabilities as well as criminal actions (registered, pending
or in respect of which cognizance has been taken by the
Court of competent jurisdiction or in relation to
conviction in respect of specified offences). Those are
matters which are fundamental to the accomplishment
of free and fair election. It is the fundamental right of the
voters to be informed about all matters in relation to
such details for electing candidate of their choice. Filing
of complete information and to make truthful disclosure
in respect of such matters is the duty of the candidate
who offers himself or who is nominated for election to
represent the voters from that Constituency. As the
candidate has to disclose this information on affidavit,
the solemnity of affidavit cannot be allowed to be
ridiculed by the candidates by offering incomplete
information or suppressing material information,
resulting in disinformation and misinformation to the
voters. The sanctity of disclosure to be made by the
candidate flows from the constitutional obligation.”
JUDGMENT
29. As pointed out above, there is no dispute on facts that information in
respect of the aforesaid four aspects was not disclosed by the
appellant in the affidavit filed by him along with the nomination form.
The defence and/or justification given for non-disclosing these
particulars is rightly rebuffed by the High Court. However, submission
of Mr. B. Adinarayana Rao, learned senior counsel appearing for the
Civil Appeal No. 4261 of 2007 Page 30 of 40
Page 30
appellant, was that having regard to the judgment of this Court in
G.M. Siddheshwar v. Prasanna Kumar, (2013) 4 SCC 776, the
Court was required to examine as to whether information given in the
affidavits was substantial compliance of those particulars regarding
Government dues, assets and liabilities, etc. He submitted that the
information amounted to substantial compliance. For this purpose,
his attempt was to demonstrate that insofar as electricity dues of
MSEB are concerned, there was a genuine dispute about the non-
payment; as far as ownership of bungalow No. 866 in the name of his
wife is concerned, it was added to the value of the properties
belonged to the appellant; municipal taxes in respect of this bungalow
were again subject matter of dispute; the value of the vehicle owned
by his wife was also disclosed against his own name; and as far as
properties owned by the partnership firm are concerned, the appellant
was simply a partner from which he had resigned, even when this
JUDGMENT
event occurred after the filing of the nomination form.
30. We may state, in the first instance, that the judgment in G.M.
Siddheshwar has no application insofar as the present case is
concerned. The Court was dealing with the form of affidavit that is
required to be filed along with the election petition in order to comply
with the provisions of Section 83(1) proviso of the Act. The very
Civil Appeal No. 4261 of 2007 Page 31 of 40
Page 31
maintainability of the election petition was challenged on the ground
that the affidavit furnished by the election petitioner was not in
absolute compliance with the format affidavit (Form 25). The Court,
however, upheld the view of the High Court holding that on perusal of
the affidavit, there was substantial compliance with the prescribed
format. Even when some defect was found in the verification to the
election petition, it was held that said defect is also curable and
cannot be held fatal to the maintainability of the election petition. In
the present case, we are concerned with the affidavit which a
candidate seeking election is required to file along with his nomination
form. At the same time, we proceed on the basis that if there is a
substantial compliance of the requirements contained in the said
affidavits, in the sense that there is a disclosure of required
particulars, including assets/liabilities etc., it can be treated as
adequate compliance of the provisions of the Act, Rules and Orders.
JUDGMENT
31. We have also kept in mind the following observations in G.M.
Siddheshwar , while undertaking our analysis of the issue in the
present case:
“31. The Court must make a fine balance between the
purity of the election process and the avoidance of an
election petition being a source of annoyance to the
returned candidate and his constituents. In Azhar
Hussain v. Rajiv Gandhi, 1986 Supp SCC 315 this Court
observed (in the context of summary dismissal of an
election petition): (SCC p. 324, para 12)
Civil Appeal No. 4261 of 2007 Page 32 of 40
Page 32
“12...So long as the sword of Damocles of the
election petition remains hanging an elected
member of the legislature would not feel sufficiently
free to devote his whole-hearted attention to
matters of public importance which clamour for his
attention in his capacity as an elected
representative of the constituency concerned. The
time and attention demanded by his elected office
will have to be diverted to matters pertaining to the
contest of the election petition. Instead of being
engaged in a campaign to relieve the distress of the
people in general and of the residents of his
constituency who voted him into office, and instead
of resolving their problems, he would be engaged in
campaign to establish that he has in fact been duly
executed.”
32. In view of the aforesaid, two facets of the issue, which require
consideration, are as follows:
a) Whether there is a substantial compliance in disclosing the
requisite information in the affidavits filed by the appellant along with
the nomination paper?
b) Whether non-disclosure of the information on account of
JUDGMENT
aforesaid four aspects has materially affected the result of the
election?
33. We have already discussed in detail each item of non-disclosure as
well as defence of the appellant pertaining thereto. For the reasons
recorded in detail at that stage by the High Court and stated above,
with which we agree, we are of the opinion that its finding about non-
disclosure of the information qua all the aspects is without blemish.
Civil Appeal No. 4261 of 2007 Page 33 of 40
Page 33
There is a specific format in which the information is to be given,
which was not adhered to.
34. With these remarks we proceed to deal with the first aspect.
Insofar as non-disclosure of the electricity dues is
concerned, in the given facts of the case, we are of the opinion that it
may not be a serious lapse. No doubt, the dues were outstanding, at
the same time, there was a bona fide dispute about the outstanding
dues in respect of the first electricity meter. It would have been better
on the part of the appellant to give the information along with a note
about the dispute, as suggested by the High Court, we still feel that
when the appellant nurtured belief in a bona fide manner that because
of the said dispute he is not to give the information about the
outstanding amount, as it had not become 'payable', this should not
be treated as a material lapse. Likewise, as far as the second
JUDGMENT
electricity meter is concerned, it was in the premises which was
rented out to the tenants and the dues were payable by the tenants in
the first instance. Again, in such circumstances, one can bona fide
believe that the tenants would pay the outstanding amount. No doubt,
if the tenants do not pay the amount the liability would have been that
of the owner, i.e. the appellant. However, at the time of filing the
nomination, the appellant could not presume that the tenants would
Civil Appeal No. 4261 of 2007 Page 34 of 40
Page 34
not pay the amount and, therefore, it had become his liability. Same
is the position with regard to non-payment of a sum of Rs.1,783/- as
outstanding municipal dues, where there was a genuine dispute as to
revaluation and reassessment for the purpose of assessing the taxes
was yet to be undertaken. Having said so, we may clarify that it
would depend in the facts and circumstances of each case as to
whether such a non-disclosure would amount to material lapse or not.
We are, thus, clarifying that our aforesaid observation in the facts of
the present case should not be treated as having general application.
35. Even if it is so, in respect of the aforesaid aspects, on other non-
disclosures, the case of the appellant has to fail. We find clear case
of non-disclosure of bungalow No. 866 in the name of the appellant's
wife, which is a substantial lapse. So is the case about the non-
disclosure of vehicle in the name of appellant's wife. Likewise, non-
JUDGMENT
disclosure of the appellant's interest/share in the partnership firm is a
very serious and major lapse. On all these aspects, we find that the
defence/explanation furnished by the appellant does not inspire any
confidence. It is simply an afterthought attempt to wriggle out of the
material lapse on the part of the appellant in not disclosing the
required information, which was substantial. We, therefore, are of the
view that in the affidavits given by the appellant along with the
Civil Appeal No. 4261 of 2007 Page 35 of 40
Page 35
nomination form, material information about the assets was not
disclosed and, therefore, it is not possible to accept the argument of
the appellant that information contained in the affidavits be treated as
sufficient/substantial compliance.
36. We have already reproduced above the relevant portions of
judgments in the cases of Association for Democratic Reforms and
People's Union for Civil Liberties and the guidelines issued by the
Election Commission pursuant thereto. A conjoint and combined
reading thereof clearly establishes that the main reason for issuing
directions by this Court and guidelines by the Election Commission
pursuant thereto is that the citizens have fundamental right under
Article 19(1)(a) of the Constitution of India to know about the
candidates contesting the elections and this is the primary reason that
casts a solemn obligation on these candidates to furnish information
regarding the criminal antecedents, educational qualifications and
JUDGMENT
assets held by the candidate, his spouse and dependent children. It
is on that basis that not only Election Commission has issued
guidelines, but also prepared formats in which the affidavits are to be
filed. As a fortiorari, it follows that if the required information as per
the said format in respect of the assets of the candidate, his wife and
dependent children is not given, it would amount to suppression/non-
disclosure.
Civil Appeal No. 4261 of 2007 Page 36 of 40
Page 36
37. It was argued that acceptance of nomination is as per Section 33 of
the Act, which contains requirement for a valid nomination. Further
Section 36(2) deals with rejection of nomination on grounds specified
therein. It was the submission of the learned senior counsel that at
the time of scrutiny of the nomination under Section 36, nomination
could be rejected only if any of the grounds stipulated in sub-section
(2) are satisfied and there cannot be any 'deemed' ground, which is
not covered by Section 36(2) of the Act. Therefore, the Returning
Officer had rightly accepted the nomination form as none of the
grounds specified in sub-section (2) of Section 36 were attracted. He
further submitted that Sections 8A, 9, 9A, 10 and 10A provide
disqualifications for Members of Parliament and State Legislature. As
per the counsel, from the scheme of the Act it can be seen that at the
time of scrutiny of nomination, all that the Returning Officer is required
JUDGMENT
to examine is as to whether the candidate suffers from any of the
disqualifications mentioned in Section 8 to 10A of the Act and as to
whether the nomination is in the form prescribed by Section 33 and
accompanied by the documents mentioned in sub-sections 2 to 7 of
Section 33 and whether it is accompanied by an affidavit prescribed
by Rule 4A and the deposit required by Section 34 of the Act. Apart
from the aforesaid, the Returning Officer is not empowered to reject
Civil Appeal No. 4261 of 2007 Page 37 of 40
Page 37
the nomination on any other ground. He argued that the right of the
Returning Officer to conduct a summary inquiry into the correctness or
otherwise of the contents of the affidavit filed along with the
nomination was expressly taken away as can be seen from the
judgment of this Court in the case of People's Union for Civil
Liberties . Having noted that the Returning Officer has no power to
reject a nomination where false information is furnished or material
information is suppressed, the Election Commission of India and
Union of India have requested this Court to treat the same as equal to
a blank affidavit, as noted in the case of Resurgence India .
It is difficult to accept the aforesaid submissions of the
learned senior counsel as that would amount to nullifying the effect of
the judgments as well as guidelines issued by the Election
Commission.
JUDGMENT
38. 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. Present case is itself an example
which loudly demonstrates this. At the same time, it would not be
Civil Appeal No. 4261 of 2007 Page 38 of 40
Page 38
possible for the Returning Officer to reject the nomination for want of
verification about the allegations made by the objector. In such a
case, 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. Ms. Meenakshi Arora,
learned senior counsel appearing for the Election Commission, right
argued that such an enquiry can be only at a later stage and the
appropriate stage would be in an election petition as in the instant
case, when the election is challenged. The grounds stated in Section
36(2) are those which can be examined there and then and on that
basis the Returning Officer would be in a position to reject the
nomination. Likewise, where the blanks are left in an affidavit,
nomination can be rejected there and then. In other cases where
detailed enquiry is needed, it would depend upon the outcome
JUDGMENT
thereof, in an election petition, as to whether the nomination was
properly accepted or it was a case of improper acceptance. 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
Civil Appeal No. 4261 of 2007 Page 39 of 40
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candidate was not entitled to contest and the election is void.
Otherwise, it would be an anomalous situation that even when
criminal proceedings under Section 125A of the 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.
39. The upshot of the aforesaid discussion would be to hold that the
present appeal is totally devoid of any merits and is, accordingly,
dismissed.
…......................................J.
(Surinder Singh Nijjar)
…......................................J.
(A.K. Sikri)
New Delhi;
May 09, 2014.
JUDGMENT
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