Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ EL.PET. 7/2019
Reserved on: 22.10.2019
Date of decision : 04.12.2019
ARUN KUMAR ..... Petitioner
Through: Dr.S.S. Hooda, Adv.
versus
DR. HARSH VARDHAN ..... Respondent
Through: Mr.Nikhil Goel, Mr.Dushyant
Sarna & Mr.P. Harold, Advs.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
I.A. No.12439/2019
1. This petition arises out of the election for Chandni Chowk
Parliamentary Constituency, which took place in May, 2019 for the
th
17 Lok Sabha, wherein the respondent was declared as the successful
candidate from the said constituency.
2. The petitioner, who claims to be a registered voter from the
Chandni Chowk constituency, has challenged the election of the
respondent alleging „Corrupt Practice‟ under Section 123(2) of The
Representation of the People Act, 1951(hereinafter referred to as the
Act), on the following grounds:
(i) Suppression of the actual Purchase Price of the property
nd
bearing flat no. 122, 2 Floor, Delhi Apartment CGHS Ltd.
Plot No. 15-C, Sector-22, Dwarka, New Delhi-78.
EL.PET. 7/2019 Page 1
(ii) Non- declaration of the source of income of the spouse.
3. It is the case of the petitioner that the respondent, who was also the
returned candidate in the 2014 Lok Sabha elections, revealed the
Purchase Price of the above stated property as Rs. 62,50,000/- in the
affidavit filed in that election year, while the Purchase Price of the same
property in the affidavit of 2019 Lok Sabha elections is shown as Rs.
70,73,673/-. The said property being in the name of the respondent‟s
wife.
4. The petitioner submits that in the affidavit filed in the election year
2014, it is shown that the wife of the respondent never filed an Income
Tax Return. Relying upon the Income Tax Returns filed by the
respondent‟s wife during the years 2014-2019, as shown in the affidavit
filed in 2019, the averments made in the petition further questions the
source of her income and seeks an explanation as to her ownership of the
immovable assets.
5. The petitioner submits that an incorrect disclosure of the Purchase
Price of the property and the non-declaration of the source of income of
the spouse amounts to „Corrupt Practice‟ under Section 123(2) of the Act
and that these grounds spell out a cause of action for setting aside the
election of the respondent.
6. The petitioner places reliance on the decision of the Supreme Court
in Lok Prahari Vs. Union of India & Ors . (2018) 4 SCC 699, wherein
the Supreme Court has held as under:
“Information to the voter
EL.PET. 7/2019 Page 2
55. The information regarding the sources of income of the
candidates and their associates, would in our opinion, certainly
help the voter to make an informed choice of the candidate to
represent the constituency in the legislature. It is, therefore, a part
of the fundamental right under Article 19(1)(a) as explained by
this Court in ADR case [Union of India v. Assn. for Democratic
Reforms, (2002) 5 SCC 294.]
xxxxx
72. We have already taken note of (i) the fact that increase in the
assets of the legislators and/or their associates disproportionate to
the known sources of their respective incomes is, by compelling
inference, a constitutionally impermissible conduct and may
eventually constitute offences punishable under the PC Act, and
(ii) “undue influence” within the meaning of Section 123 of the
1951 RP Act. In order to effectuate the constitutional and legal
obligations of legislators and their associates, their assets and
sources of income are required to be continuously monitored to
maintain the purity of the electoral process and integrity of the
democratic structure of this country. Justice Louis D. Brandeis,
perceptively observed: “the most important political office is that
of the private citizen”.
xxxxxx
79. We shall now deal with Prayer 2 which seeks a declaration
that non-disclosure of assets and sources of income would amount
to “undue influence” — a corrupt practice under Section 123(2)
of the 1951 RP Act. In this behalf, heavy reliance is placed by the
petitioner on a judgment of this Court
in Krishnamoorthy v. Sivakumar (2015) 3 SCC 467. It was a case
arising under the Tamil Nadu Panchayats Act, 1994. A
notification was issued by the State Election Commission
stipulating that every candidate at an election to any panchayat is
required to disclose information, inter alia, whether the candidate
was accused in any pending criminal case of any offence
punishable with imprisonment for two years or more and in which
charges have been framed or cognizance has been taken by a
EL.PET. 7/2019 Page 3
court of law. In an election petition, it was alleged that there were
certain criminal cases pending falling in the abovementioned
categories but the said information was not disclosed by the
returned candidate at the time of filing his nomination. One of the
questions before this Court was whether such non-disclosure
amounted to “undue influence” — a corrupt practice under the
Panchayats Act. It may be mentioned that the Panchayats Act
simply adopted the definition of a corrupt practice as contained in
Section 123 of the 1951 RP Act.
80. On an elaborate consideration of various aspects of the
matter, this Court in Krishnamoorthy case held as follows:
“91. … While filing the nomination form, if the requisite
information, as has been highlighted by us, relating to
criminal antecedents, is not given, indubitably, there is an
attempt to suppress, effort to misguide and keep the people
in dark. This attempt undeniably and undisputedly is undue
influence and, therefore, amounts to corrupt practice. …”
81. For the very same logic as adopted by this Court
in Krishnamoorthy , we are also of the opinion that the non-
disclosure of assets and sources of income of the candidates and
their associates would constitute a corrupt practice falling under
heading “undue influence” as defined under Section 123(2) of the
1951 RP Act. We, therefore, allow Prayer 2.
7. The respondent has filed the present application seeking summary
dismissal of the above Election Petition of the petitioner. In the
application, it is contended that even assuming that there was a
discrepancy in the declaration of the Purchase Price of the above referred
flat in the affidavits filed by the respondent in the years 2014 and 2019,
the same cannot be presumed as „Undue Influence‟ or as a „Corrupt
Practice‟. It is further submitted that the Election Petition fails to
EL.PET. 7/2019 Page 4
disclose „Material Facts‟ and „Material Particulars‟ in support of the
petition.
8. The respondent submits that in the election, out of 15,62,268
registered voters in the Chandni Chowk Parliamentary Constituency,
9,80,390 voters turned out to vote and out of these votes, the respondent
secured 5,19,055 votes, that is, 52.94% of the total votes polled; the next
highest votes were polled in favour of the candidate who secured
2,90,910 votes, which is only 29.67% of the total votes. It is submitted by
the respondent that the above fact would show that the allegations raised
in the petition are frivolous and merely intended to initiate a fishing and
roving inquiry.
9. The learned counsels for the parties have made submissions in line
of their pleadings.
10. Section 123(2) of the Act is reproduced hereinbelow:
“123. Corrupt Practices- The following shall be deemed to be
corrupt practices for the purposes of this Act:
xxxx
“(2) Undue influence, that is to say, any direct or indirect
interference or attempt to interfere on the part of the candidate
or his agent, or of any other person with the consent of the
candidate or his election agent, with the free exercise of any
electoral right:
Provided that—
(a) without prejudice to the generality of the provisions of
this clause any such person as is referred to therein
who—
EL.PET. 7/2019 Page 5
(i) threatens any candidate or any elector, or any
person in whom a candidate or an elector is
interested, with injury of any kind including social
ostracism and ex-communication or expulsion
from any caste or community; or
(ii) induces or attempts to induce a candidate or an
elector to believe that he, or any person in whom
he is interested, will become or will be rendered an
object of divine displeasure or spiritual censure,
shall be deemed to interfere with the free exercise of
the electoral right of such candidate or elector within
the meaning of this clause;
(b) a declaration of public policy, or a promise of public
action, or the mere exercise of a legal right without intent to
interfere with an electoral right, shall not be deemed to be
interference within the meaning of this clause.”
11. As noted hereinabove, in Lok Prahari (supra), the Supreme Court
has held that non-disclosure of assets and sources of income of the
candidates and their associates would constitute a „corrupt practice‟
falling under heading „undue influence‟ as defined in Section 123(2) of
the Act. At the same time, the Supreme Court declined to issue direction
in nature of mandamus to consider the amendment of the Act to provide
for rejection of nomination paper of the candidates and disqualification of
MPs/MLAs/MLCs deliberately furnishing wrong information of their
assets in Form-26 at the time of filing of the nomination.
12. The Supreme Court in R.P.Moidutty v. P.T. Kunju Mohammad
and Ors., (2000) 1 SCC 481, observed that:
EL.PET. 7/2019 Page 6
“ It is basic to the law of elections and election petition that in
a democracy, the mandate of the people as expressed at the
Hastings must prevail and be respected by the Courts and
that is why the election of a successful candidate is not to be
set aside lightly ”.
13. In Rahim Khan v Khurshid Ahmed and Ors., (1974) 2 SCC 660,
the Supreme Court observed as under:
“9. However, we have to remember another factor. An
election once held is not to be treated in a light-hearted
manner and defeated candidates or disgruntled electors
should not get away with it by filing election petitions on
unsubstantial grounds and irresponsible evidence, thereby
introducing a serious element of uncertainty in the verdict
already rendered by the electorate. An election is a
politically sacred public act, not of one person or of one
official, but of the collective will of the whole constituency.
Courts naturally must respect this public expression
secretly written and show extreme reluctance to set aside
or declare void an election which has already been held
unless clear and cogent testimony compelling the court to
uphold the corrupt practice alleged against the returned
candidate is adduced. Indeed election petitions where
corrupt practices are imputed must be regarded as
proceedings of a quasi-criminal nature wherein strict
proof is necessary. The burden is therefore heavy on him
who assails an election which has been concluded.”
14. On the above touchstone the allegations made in the present
petition are to be tested.
15. As noted hereinabove, the allegation of the petitioner is that the
respondent in the affidavit filed in 2014 had declared the Purchase Price
of the flat as Rs.62,50,000/- while in the 2019 affidavit has disclosed the
same as Rs.70,73,673/-. It is not denied that the wife of the respondent
EL.PET. 7/2019 Page 7
owned this flat so disclosed. The petition, however, does not disclose as
to how this difference in the Purchase Price would and has in fact had
any direct or indirect interference with the free exercise of the electoral
right of any person.
16. In Lok Prahari (supra), the Supreme Court was concerned with the
non-disclosure of assets and sources of income of the candidates and their
associates. The Court held that the effective increase in the assets of the
legislator and/or their associates, disproportionate to the known sources
of their respective income is a constitutionally impermissible conduct and
the citizen is entitled to be informed of the same so as to enable/empower
him to make rational choices of the record of those holding or aspiring to
hold public office of the State. Therefore, the primary purpose of such
disclosure is for the citizen to be informed of the increase in wealth of the
candidate disproportionate to the known sources of his income.
17. In the present case, though the disclosure of the asset was duly
made, the allegation is that it carries a different value in the two
affidavits. It was for the petitioner to have thereafter also shown as to
how this difference in valuation/purchase price would adversely affect
the choice made by the citizen and therefore, amount to an „undue
influence‟. The petition is completely silent on this aspect.
18. Equally, apart from making a statement of fact that in the affidavit
filed by the respondent in 2014 he had asserted that the wife of the
respondent has never filed an Income Tax Return, while in the 2019
affidavit it is stated that the wife of the respondent has filed Income Tax
Return in the intervening period and it is not disclosed how she has come
EL.PET. 7/2019 Page 8
to have purchased immovable assets of total purchase price of
Rs.85,35,673/-, there again is no averment showing how the said
information given in the affidavit falls foul of Section 123 of the Act.
19. In Lalit Kishore Chaturvedi vs. Jagdish Prasad Thada and
Others , (1990) Supp SCC 248, the Supreme Court emphasised on the
Election Petition containing concise statement of the material facts on
which the petitioner relies as an Election Petition has the effect of
declaring an election void. It is a serious remedy and therefore, it is vital
that the corrupt practice charge against the respondent should be full and
complete statement of material facts to clothe the petitioner with a
complete Cause of Action to be stated in the same. In the present case,
barring making the allegation regarding the valuation of the property and
trying to raise suspicion on the income of the spouse declared by the
respondent, the petition is lacking any other material particulars to show
as to how the same, in any manner, effected the outcome of the election
in question.
20. I, therefore, find that the petition does not disclose any Cause of
Action. Consequently, the application filed by the respondent is allowed.
EL.PET.7/2019
In view of the order passed above in I.A. No.12439/2019, the Election
Petition is dismissed. The parties shall bear their own cost.
NAVIN CHAWLA, J
DECEMBER 04, 2019/Arya
EL.PET. 7/2019 Page 9