Patna High Court
Gajanand Shahi vs Sudarshan Kumar on 7 January, 2025
Author: Nawneet Kumar Pandey
Bench: Nawneet Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
ELECTION PETITION No.5 of 2020
======================================================
Gajanand Shahi Son of Late Hargovind Prasad Singh, resident of House No.
41, Ward No. 28, Dakbungalow Road (Hargovind Bhawan), Police Station-
Patna Kotwali, Post - G.P.O., District - Patna.
... ... Petitioner/s
Versus
Sudarshan Kumar Son of Late Sanjay Kumar Singh, resident of Village and
Post - Hathiyawan, Police Station- Sheikhpura, District - Sheikhpura.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Shashi Bhushan Kumar Manglam
For the Respondent/s : Mr.Ansul, Senior Advocate
Mr. Madhav Raj
======================================================
CORAM: HONOURABLE MR. JUSTICE NAWNEET KUMAR
PANDEY
CAV JUDGMENT
Date : 07.01-2025
I have already heard Mr. S.B.K. Mangalam, the
learned counsel for the petitioner as well as Mr. Ansul, learned
senior counsel, assisted by learned counsel Mr. Madhav Raj for
the sole respondent.
2. The petitioner has filed this election petition for
setting aside the election of the sole respondent, who has been
declared elected as a member of Bihar Legislative Assembly
from 170, Barbigha Assembly Constituency. The election was
held on 28.10.2020 and the result was declared on 10.11.2020.
The ground for setting aside the election, as claimed by the
petitioner, is improper acceptance of the nomination paper of the
sole respondent by the Returning Officer.
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3. As per the averments in the petition, altogether 11
contestants were there in the electoral fray/arena, including the
petitioner and the sole respondent. On the date of scrutiny i.e.
09.10.2020
, the nomination paper of Shri Ajay Kumar, an
independent candidate, was found incomplete and it was rejected
by the Returning Officer, but at the same time, the Returning
Officer had accepted the nomination paper of the sole respondent
which too was incomplete. The correct and material information
were not given in the proforma of the affidavit filed by the sole
respondent before the Returning Officer in Form-26. He had not
filled up Part-3A of his nomination paper and on this score, his
nomination paper ought to have been rejected but it was
improperly accepted by the Returning Officer. On the date of
election, 1,19,144 electors had exercised their electoral rights in
223 polling stations, whereas 1113 postal ballet papers were
received by the Returning Officer. The sole respondent was
declared elected since he had received 39878 votes including
postal ballots, whereas the petitioner was declared to have
received 39765 votes inclusive of postal ballots.
4. It has further been averred in the petition that the
sole respondent had filed his nomination paper before the
Returning Officer in two sets (Ext.1 and 1(ii)). Along with
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nomination paper, he had also filed an affidavit in Form-26 in
two sets, duly signed by him before the Notary Public. These
two sets of the affidavit have been marked as Ext. 2 and Ext. 2
A. He also uploaded his nomination paper on the official website
of Election Commission of India. The petitioner obtained the
certified copy of his nomination paper and the affidavit in Form-
26. All the two sets of nomination papers and the affidavits in
Form-26 were suffering from several infirmities. It has been
mentioned further that the sole respondent had filled up both the
parts of nomination paper i.e. Part-1 and Part- 2, whereas he had
to fill up only Part 1, as clear from Part-3. The sole respondent
was the candidate of Janata Dal (United) political party and a
candidate of a recognized political party had to fill only Part-1
and not the Part- 2. The Part-2 must have been crossed as per
instruction given in paragraph-3 of the nomination papers. The
second infirmity pointed out by the election petitioner, in the
nomination paper of the sole respondent is that he had not made
relevant description in Part- 3A of the nomination form, in
which a candidate is mandatorily required to declare as to
whether he has been convicted for any offences under Section
8(1)) and Section 8(2) of Representation of the People Act, 1951
(hereinafter referred to as ‘the Act, 1951’), or for any other
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offences for more than two years. Para-1 of the said Part-3A is
blank and on this sole omission, the nomination paper of the sole
respondent ought to have been rejected.
5. It has further been averred in the petition that the
instruction for filling up of paragraph 4 of Form-26 was given at
the footnote of that paragraph. It is mandatory for a candidate to
mention his/her Permanent Account Number (for short ‘the
PAN’) in para- 4, and in case he does not have any PAN, he has
to clearly mention that he was not allotted a PAN. The sole
respondent has although mentioned his PAN and also the PAN
of his wife, but he had not filled up information in respect of
other columns of para-4, as per instructions contained in the
prescribed form. The sole respondent had concealed the relevant
mandatory information in para-4 of his affidavit and therefore,
his nomination paper was fit to be rejected. Similarly, para- 5
and 6 of the affidavit were left blank. The respondent has not
declared in his affidavit that either no criminal case is pending
against him, or there are criminal cases pending against him.
Similarly, the sole respondent also did not mention in paragraph
6 of the affidavit as to whether he has been convicted or he has
not been convicted in any criminal case. It has further been
mentioned in the petition that as per para-7(A) of the affidavit, a
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candidate has to declare his assets (movable and immovable).
According to the instructions contained in the said paragraph in
respect of his Insurance Policies, in the column of his spouse
mentioned in sub-paragraph no. (iv) of paragraph no. 7, the sole
respondent has only mentioned Rs. 2,00,000/-, Oriental Bank,
Basant Kunj, Delhi, but what is the nature of the policies, the
affidavit is silent and on the next page of said affidavit he has
mentioned ‘Shunya’ i.e. ‘0’ in all the columns of sub-paragraph
no.(iv) of paragraph no. 7(A).
6. It has further been averred that the details of the
motor vehicles of the sole respondent were also incomplete in
affidavit as the Make, year of purchase, and the amount of
purchase has not been mentioned in his affidavit. Similarly, the
information given by the sole respondent in paragraph no. 7(b)
of his affidavit in Form-26 does not satisfy the requirement of
filling up an affidavit in prescribed format and therefore, the
nomination of the sole respondent was fit to be rejected on this
ground. A candidate is required to mention the location of his
agricultural lands in paragraph 7(B)(1) of his affidavit and also
the survey numbers, but in the survey column, the respondent
has mentioned only area of the land which is not in accordance
with the prescribed format/form. Similarly, regarding residential
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buildings, as mentioned in paragraph no. 7B (iv), the respondent
has simply mentioned two flats, a house in Sheikhpura, a flat in
Patna and in Kolkata and a family house in Patna. It has also
been alleged that the Returning Officer, under pressure, after
improperly accepting the nomination paper of the sole
respondent, had also committed gross illegality in the counting
of votes. As per Rule 54A of the Conduct of Election Rules
1961, (hereinafter to be referred to as ‘the Rules, 1961’), the
Returning Officer has to mandatorily count the postal ballot
papers first, and thereafter the counting of votes through
Electronic Voting Machines (EVMS), should start, but in
violation of this Rules, the postal ballot papers were counted
subsequent to the votes cast through EVMS and this fact is
evident from Form-20 in which the final result sheet is prepared
by the Returning Officer. The details of votes through postal
ballots have been mentioned subsequent to the votes through
EVMs, in Form 20, which shows that the votes cast through
EVMs where counted first and the postal ballots were counted
thereafter.
7. The sole respondent has filed his written statement,
denying the averments made in the election petition. It has been
mentioned in written statement that the election petition should
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be dismissed on the grounds of non-rejoinder of necessary
parties as the Returning Officer against whom there is allegation
of accepting the nomination paper of the sole respondent
improperly, has not been impleaded as a party. The election
petitioner has not come up with a case that the sole respondent
has any criminal antecedent nor the case of the petitioner is that
the sole respondent has any other property, movable or
immovable than those which have been shown in his nomination
paper or Form-26. What more details are left to be mentioned in
nomination paper or Form-26 has not been clarified by the
election petitioner. As per law, the nomination paper would not
be rejected by the Returning Officer on the grounds of any defect
which is not of substantial character. Any error or omission in
the nomination paper, if it is not of a substantial character,
is/are immaterial.
8. It has further been pleaded in the written statement
that as per the law laid down by the Hon’ble Supreme Court, a
candidate must take the minimum effort to explicitly mark as
“NIL” or “not applicable” or “not known” etc. It was the
reason that the sole respondent had written ‘Shunya’ i.e. ‘0’ at
all the places where he had nothing to show. It has further been
pleaded that so far as the allegation of counting of postal ballot
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papers after counting of votes through EVMs is concerned, the
order of publication of votes cannot be lead to an inference that
the postal ballot papers were counted subsequent to the votes
cast through EVMs.
9. It has also been mentioned in the written statement
that the sole respondent had filled up Part-1 and Par-2 both, but
there is not the case of the petitioner that any wrong information
was supplied or something misleading was there due to filling up
of both the parts of the nomination form. As a matter of fact, the
sole respondent had no criminal antecedent at all at the time of
filing of the nomination paper and he had clearly written
“Shunya” i.e. “0” against the cases conveying the meaning
clearly that there is no case pending against him or he has not
been convicted in any criminal case. The literal meaning of
“Shunya” is nothing and it indicates absence of any case and
nothing contrary can be conveyed. Similar is the position with
the column relating to the criminal antecedents in his affidavit in
Form-26. The sole respondent has clearly mentioned the PAN of
himself and his wife in Form-26. He did not fill up the PANs of
Aryan and Adir Kumar, the sons of the sole respondent, as they
were minor and were not allotted PANs and it was the reason
that the word “Shunya” was mentioned against the column of
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PANs of Aryan and Adir Kumar. The averment in the plaint that
in column 7(iv), the details of properties were not given was
also denied by the sole respondent. It has been mentioned that
the details of his properties, movable and immovable have
clearly been shown in para-7(iv) of Form-26 and on the next
page the blank spaces were filled up with “shunya” cannot
convey any wrong/contrary meaning and will not hit by Section
36(4) of the Act, 1951.
10. Lastly, it has been pleaded in the written statement
that so as the motor vehicles, land and houses of the sole
respondent are concerned, he has furnished the entire required
details and it is not the case of the election petitioner that the
sole respondent has any other motor vehicles, landed properties
or houses which have been declared in Form-26 appended with
the nomination papers. Lastly, the sole respondent made a prayer
to dismiss the election petition as it is baseless.
11. On the basis of the pleadings of the parties, the
following issues have been framed for adjudication:-
(1) Whether the nomination paper of the sole
respondent should have been rejected by the
Returning Officer at the time of scrutiny on the
ground of infirmities enumerated in the plaint?
(2) Whether the election of the sole respondent
deserves to be set aside?
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12. Both these issues are taken up together for
adjudication.
13. The documentary evidences adduced by the
election petitioner are the certified copies of the two sets of
nomination paper filed by the sole respondent which have been
marked as Ext.1 and 1(ii), respectively. The certified copies of
the two sets of affidavit in Form-26, appended with the
nomination paper have been marked as Ext.2 and Ext. 2(A).
14. So far as the oral evidences are concerned, the sole
witness, the petitioner himself (P.W.1) was examined on behalf
of the petitioner. So far as the sole respondent is concerned, three
witnesses were examined on his behalf, including himself.
15. R.W.1 is the sole respondent himself. R.W.2 is
one Rajesh Kumar, who is the Personal Assistant to the sole
respondent and he was one of the counting agents for the sole
respondent and R.W.3 is Manoj Prasad, also one of the counting
agents of the sole respondent.
16. P.W.1, who is the petitioner himself has reiterated
his version as mentioned in his election petition. He has deposed
that the election of the elected candidate Mr. Sudarshan Kumar
has been challenged on the ground that he left filling Part 3A of
the nomination paper. The second ground for challenging the
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election is that the postal ballot papers should have been counted
first, whereas those were counted in the last. He has also
challenged the election of the sole respondent on the ground of
shortcomings in the affidavit filed by the sole respondent in
Form-26, along with nomination paper. At the instance of this
witness, the certified copies of the nomination paper and Form-
26 were marked as Exhibits. This witness has deposed that
although the respondent no.1 has shown criminal cases in Form-
26 as ‘0’ in column no. 5, but he had not disclosed the fact
whether any case is pending against him or not as required by
column no.5(i) and 5(ii). Similar is the position in respect of
column no.6 of Form-26. The respondent has not mentioned his
bank account number in Form-26, column 7(A)(ii) for himself
and his wife. The year of purchase of the vehicle and price
thereof has not been mentioned in column 7(A) (iv) of Form-26
relating to the sole respondent and his wife. In column 7 (B) (i),
although the area of the land has been mentioned, but the
location and plot numbers thereof have not been mentioned.
Similarly, the survey numbers and location of flats mentioned in
paragraph 7(B)(iv) of Form-26 are missing. In sub column of
paragraph no.7(B)(iv), the candidate is required to disclose
whether the properties mentioned therein are inherited or self-
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acquired. The column has been filled up in affirmative.
However, in next two columns, it has been mentioned that the
flat details whereof disclosed in column 7(B) (iv) is purchased
property of the sole respondent. This is the position in both sets
of Form-26 submitted by the respondent along with his
nomination paper. This witness has also deposed that the postal
ballot papers were counted after counting of votes cast through
electronic voting machine. In the final result sheet Form 20,
firstly, the details of votes through EVM have been entered and
subsequently votes cast through postal ballot have been entered.
During his cross-examination, this witness deposed
that he was not aware of the reason for not mentioning PAN card
numbers of the two minor children of the sole respondent. He
was not aware of the fact that these minor children were not
allotted PAN cards. This witness has stated further that the
officer engaged in counting of votes apprised him that the postal
ballot papers were counted subsequent to the counting of the
votes cast through EVMs. He has also deposed that he had no
knowledge about any criminal case pending against the sole
respondent. He stated that within his knowledge, no specific
material had been concealed by the sole respondent in column
no.3A of the Form.
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17. As discussed above, three witnesses have been
examined on behalf of the sole respondent.
18. R.W.1 is the sole respondent Mr. Sudarshan Kumar
himself. He deposed that he won the election on the ticket of
Janata Dal (United) political party. A candidate fills his
nomination paper with the assistance of an advocate. He deposed
further that he filled the column of criminal antecedents in
nomination paper as “zero” since there was no criminal
antecedent against him. He has two sons and both his sons were
not holding PAN card at the time of filing of the nomination
paper and it was the reason that their PAN card numbers were
not mentioned in the election petition. At the time of collection
of certificate, none had complained regarding any malpractice in
the election before the appropriate authorities. At the time of
counting of votes, his counting agents, namely, Manoj Kumar
(R.W.3), Rajesh Kumar (R.W.2), Diwakar Kumar and Dhiraj
Kumar were present.
In his cross-examination, this witness has stated that
he was a candidate of a recognized political party namely, JD
(U). The nomination papers filed by him have already been
marked as Exts. 1 and 1(ii) and the affidavit, Form-26 have been
marked as Exts.2 and 2(A). He reached at the place of counting
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after 6.00 p.m. and before his arrival at the counting place, the
counting was over. He stated during his cross-examination that
Rajesh Kumar (R.W.2) told him that the postal ballot papers
were counted first. He had deputed Brajesh Kumar, Dhiraj
Kumar and Manoj Kumar as his counting agents. He could not
remember the name of his counting agent who was deputed at
the table, where the postal ballot papers were counted He could
not say how many postal ballot papers were rejected.
19. RW 2 Rajesh Kumar is personal assistant to the
sole respondent. He has stated that in affidavit of nomination
papers, in the column of criminal antecedents, the sole
respondent has mentioned ‘zero’. There was no case pending
against him on the date of filing of his nomination papers. At the
time of declaration of result also, no objection was raised by the
election petitioner complaining any kind of irregularity.
During his cross-examination, this witnesses deposed
that he was present at the time of filing of the nomination papers
but he did not contribute in filling up of nomination form. This
witness was the counting agent of the sole respondent.
20. RW 3 is Manoj Prasad, who is also a counting
agent of the sole respondent. This witness has also stated that at
the time of filing of the nomination papers, there was no criminal
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antecedent against Mr. Sudarshan Kumar. This witness was
present at the place, where the counting of votes was going on,
till conclusion of the counting. No application was filed by Mr.
Gajanand Shahi (the election petitioner) complaining any kind of
irregularity. At the time of counting, firstly, postal ballot papers
were counted and thereafter, the votes cast through EVMs were
counted.
In his cross-examination, this witness has deposed
that he was deputed at table no. 1 and the postal ballots were not
counted on his table. This witness could not give the total
number of postal ballot papers. This witness heard the
announcement of the result, but he did not see the result-sheet.
21. The learned counsel for the petitioner Mr. S.B.K.
Manglam has submitted that in case of Union of India Vs.
Association For Democratic Reforms and Anr, reported in
2002 (5) SCC 294, the Hon’ble Supreme Court issued some
guidelines. Before issuing the guidelines, the right of voters to
know his candidate was taken into account by the Hon’ble Apex
Court. According to the Hon’ble Supreme Court, a voter has a
right to know about his candidate. The ‘Right to Know’, as per
the Hon’ble Supreme Court, is a derivative of the freedom of
speech and expression enshrined in Article 19(1)(a) of the
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Constitution of India. The voters have a right to know the
criminal antecedents of his candidate, his assets and liabilities,
including movable and immovable properties, as well as the
educational qualification. After this judgment, Section 33-A was
inserted into the Representation of the People Act, 1951,
hereinafter to be referred to as ‘the Act, 1951’, requiring a
candidate to disclose his criminal antecedent, punishable with
imprisonment for two years or more in a pending case in which a
charge has been framed by a court of competent jurisdiction. It is
also mandatory for a candidate to disclose whether he has been
convicted for 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 of ‘the Act, 1951’ and whether he was sentenced for
imprisonment for more than one year.
22. Mr. Manglam has submitted further that If a
candidate fails to disclose his criminal antecedents by not
properly filling up of the nomination form, it amounts to
concealment of the fact and the right of voters to know his
candidate, as promulgated by the Hon’ble Apex Court is
infringed. If the nomination form or Form-26, in which the
criminal antecedent is detailed, is improperly filled up, the voters
may be in dichotomous state regarding information about the
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candidate fighting the election, and if this dichotomy is created
by the candidate himself, his election should be set-aside on this
ground. He also relied upon the decision of People’s Union For
Civil Liberties (PUCL) and Anr Vs. Union of India and Anr,
reported in 2003(4) SCC 399, in which the Hon’ble Supreme
Court though declared Section 33-B of ‘the Act, 1951’ as ultra
virus, but at the same time, Section 33-A was emphasized by the
Hon’ble Supreme Court. He submitted that if a candidate
conceals any particular fact which is mandatory to be disclosed
in the nomination paper or in Form-26, his election is liable to be
set-aside. He drew my attention towards a decision of the
Hon’ble Supreme Court in case of Meirembam Prithviraj Vs.
Pukhrem Sharatchandra Singh reported in 2017(1) PLJR
(SC) 50 and he submitted that the election of a candidate, who
became successful in Manipur Legislative Assembly Election
was set-aside merely on the ground that he filled up a false
information in Form 26 about his educational qualification. In
that case, the candidate mentioned in his nomination paper that
he was an MBA (Master of Business Administration) from
Mysore University. This information was found to be false and
due to this sole reason, his election was set-aside by the Hon’ble
Manipur High Court and by the Hon’ble Supreme Court as well.
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His further submission is that in case of Kisan Shankar
Kathore vs Arun Dattatray Sawant & Ors, reported in (2014) 14
SCC 162, the election of a successful candidate in the election of
Legislative Assembly was set-aside by the Hon’ble Supreme
Court for non-disclosure of his ownership of Bungalow No. 866
as well as the non-disclosure of Vehicle No. MH 05 AC 555
owned by his wife.
23. The learned counsel has submitted further that in
the present case also, the details of the vehicles of the sole
respondent have not been disclosed and the details of his landed
property have also not been disclosed. It has been submitted that,
on this ground, the election of the sole respondent is liable to be
set-aside.
24. It has also been submitted by Mr. Mangalam that a
candidate has to furnish the details of his income tax returns of 5
years, but the sole respondent has given the details of his income
tax returns only for one year, i.e., 1918-19. Mr. Mangalam has
further submitted that the Hon’ble Supreme Court in case of
Resurgence India vs Election Commission Of India & Anr,
reported in (2014) 14 SC 189, have been pleased to hold that
filling of affidavit with blank particulars will render the affidavit
as nugatory. In the present case, the sole respondent had left the
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above noted columns as blank, as such, his election should be
declared as nugatory.
25. On the other hand, the learner counsels for the
sole respondent, Mr. Ansul and Mr. Madhav Raj have submitted
that the petitioner did not indicate any particular fact or any
particular material, which has been left to be mentioned in the
nomination paper or in Form-26. There was no criminal case
against the sole respondent at the time of filing of nomination
paper. It was the reason that the word ‘zero’ has been mentioned
in the column of criminal case. So far as the assets and liabilities
of the sole respondent is concerned, the election petitioner did
not put forth any information relating to any property belonging
to the sole respondent other than that has been disclosed in the
Form-26. Nothing was suppressed by the sole respondent. Mr.
Madhav Raj, the learned counsel for the sole respondent has
submitted that so far as the submission of Mr. Mangalam that the
income tax returns of the sole respondent only for one year has
been filled up in Form-26, is concerned, there is no specific
pleading in this regard in the election petition. Neither the
evidences have been led by the parties on this point. He
submitted that it is the settled law that no party can raise a new
point at the subsequent stage, which has not been pleaded, nor
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the evidence has been led on that point. However, the learned
counsel, at the time of arguments, has produced the xerox copies
of income tax returns of the sole respondent for the assessment
years 2014-15, 2015-16 and 2016-17, in which the gross total
income of the election petitioner has been shown as Rs,
2,12,420/-, Rs. 2,68,600/- and Rs. 4,05,000/- respectively. The
learned counsel Mr. Madhav Raj has submitted that the gross
income of the sole respondent in the income tax returns for these
assessment years are not of a huge amount and non-filling of
this information would not have materially affected the result of
the election. The learned counsels for the sole respondent
submitted further that in case of Resurgence India (supra), the
Hon’ble Supreme Court have been pleased to hold that wrong or
incomplete information or suppression of material information
can only be taken into account, if it is of a substantial character,
otherwise it cannot be taken into account.
26. So far as the counting of votes through postal
ballots subsequent to counting of votes through EVMs is
concerned, the learned counsels for the sole respondent have
submitted that the averment of the petitioner in this respect is far
from the truth. The petitioner has to prove that the votes through
EVMs were counted prior to counting of the votes through postal
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ballot papers.
27. The learned counsels have submitted further that in
case of Karim Uddin Barbhuiya Vs. Aminul Haque Laskar and
others (AIR 2024 SC 2193), the appellant therein became
successful in the election to the Legislative Assembly of Assam.
An election petition was filed challenging his election on the
ground that the appellant had given false declaration of his
educational qualification of B.A., suppression of education
qualification of Diploma in Engineering and suppression of bank
loan deatils and suppression of unliquidated provident fund dues.
The Hon’ble Supreme Court did not find these omissions as of
substantial in nature and the appeal of the appellant was allowed.
Para-19 & 20 of the decision in case of Karim Uddin
Barbhuiya (supra) are being extracted hereinbelow:-
“19. Now, from the bare reading of the Election
petition, it emerges that the respondent No. 1
has made only bald and vague allegations in
the Election Petition without stating the
material facts in support thereof as required to
be stated under Section 83(1)(a) of the RP Act.
Apart from the fact that none of the
allegations with regard to the false statements,
and suppression and misrepresentation of
facts allegedly made by the respondent No. 1
with regard to his educational qualification or
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loan availed by him for his partnership firm or
with regard to his default in depositing the
employer’s contribution to provident fund,
would fall within the definition of “Corrupt
practice” of “undue influence” as envisaged in
Section 123(2) of the RP Act, the Election
petition also lacks concise statement of
“material facts” as contemplated in Section
83(a), and lacks “full particulars” of the
alleged Corrupt practice as contemplated in
Section 83(b) of the RP Act.
20. So far as the allegations of “Corrupt
practice” are concerned, the respondent No.
1 was required to make concise statement of
material facts as to how the appellant had
indulged into “Corrupt practice” of undue
influence by directly or indirectly interfering
or attempted to interfere with the free
exercise of any electoral right. Mere bald and
vague allegations without any basis would
not be sufficient compliance of the
requirement of making a concise statement of
the “material facts” in the Election Petition.
The material facts which are primary and
basic facts have to be pleaded in support of
the case set up by the Election petitioner to
show his cause of action. Any omission of a
single material fact would lead to an
incomplete cause of action enntitling the
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Election petition under Order VII Rule 11(a)
of CPC read with Section 83(1)(a) of the RP
Act. The said legal position has been well
settled by this Court in Azhar Hussain v.
Rajiv Gandhi, wherein this Court after
referring to the earlier pronouncements in
Samant N. Balkrishna and Another v. George
Fernandez and Others and Shri Udhav Singh
v. Madhav Rao Scindia, observed that the
omission of a single material fact would lead
to incomplete cause of action, and that an
Election petition without the material facts is
not an Election petition at all. It was further
held that all the facts which are essential to
clothe the petition with commplete cause of
action must be pleaded and is omission of
even a single material fact would amount to
disobedience of the mandate of Section 83(1)
(a) of the Act and an Election petition can be
and must be dismissed, if it suffers from any
such vice.”
28. The learned counsels for the sole respondent
have also relied upon the decision of Ravi Namboothiri Vs. K A
Baiju and others reported in 2022 Live Law (SC) 933, in which
the failure of a elected candidate to disclose in the nomination
form about his conviction for an offence under Kerala Police
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Act, 1960 for holding a dharna was not considered as substantial
in nature to declare his election as void.
29. The learned counsels for the sole respondent
have submitted further that the Returning Officer against whom
there is allegation of improperly accepting the nomination paper
of the sole respondent has not been made party, as such the
election petition suffers from the defect of non-joinder of the
necessary parties and on this score only, the election petition
should be dismissed.
30. I have perused the materials available on record
and have given my thoughtful consideration to the rival
submissions advanced on behalf of the parties.
31. The Hon’ble Supreme Court, in case of Union of
India vs. Association for Democratic Reforms and another,
reported in (2002) 5 SCC 294, issued guidelines, requiring
disclosure of some informations by a contesting candidate, at the
time of presentation of his nomination form. The guidelines
issued by the Hon’ble Supreme Court are detailed in para-48 of
the said decision. Para-48 is being extracted hereinbelow:-
“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
Patna High Court E.P. No.5 of 2020 dt.07-01-2025
25/35necessary 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.”
32. As per guidelines issued by the Hon’ble
Supreme Court, a candidate contesting the election has to
disclose those particulars enumerated in Clause 1 to 5 of para-48
of that decision, in his nomination paper. Pursuant to that order,
the Election Commission of India issued certain directions on
28-06-2002, according to which a candidate is required to
furnish full and complete information in the form of an affidavit
with regard to the guidelines of the Hon’ble Supreme Court as
per paragraph no. 48 of the decision in Union of India Vs.
Patna High Court E.P. No.5 of 2020 dt.07-01-2025
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Association For Democratic Reforms and Anr (Supra). In case
of People’s Union of Civil Liberties (PUCL) (supra), the
Hon’ble Supreme Court reaffirmed the abovenoted decision, but
also held that the direction to reject the nomination paper for
furnishing wrong information by means of a summary inquiry at
the time of scrutiny of nomination, cannot be justified. The
Election Commission of India again issued a letter dated 2-6-
2004 directing the Chief Electoral Officers of all the States and
Union Territories that if any complaint regarding furnishing of
false information by a candidate is submitted by anyone, it
should be supported by some documentary evidences.
33. After insertion of Section 33-A in ‘the Act,
1951, the information required in the decision of Union of
India Vs. Association For Democratic Reforms and Anr
(supra), a candidate has to furnish affidavit in Form-26,
describing those informations, as required in para-48 of the
above- noted case.
34. Section 100 of ‘the Act, 1951’ provides grounds
for declaring the election to be void. The election of a candidate
can be declared as void only on the grounds enumerated under
Section 100 of ‘the Act,1951’. The improper acceptance of a
nomination paper by Returning Officer is one of the grounds for
Patna High Court E.P. No.5 of 2020 dt.07-01-2025
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declaring the election as void. If the Returning Officer accepts
the nomination paper improperly, the election of the returned
candidate can be declared as void, but from bare perusal of
Section 100(1)(d)(i) makes it clear that for declaring an election
as void on the ground of improper acceptance of the nomination
paper, the result of the election of the returned candidate must
have been be materially affected, due to the improper acceptance
of the nomination paper.
Section 100(1) of ‘the Act, 1951’ is being extracted
hereinbelow:-
“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 23 or the
Government of Union Territories Act, 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
(c) that any nomination has been improperly
rejected; or
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(d) that the result of the election, insofar
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 24 [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.]”
35. From bare perusal of Section 100(1)(d)(i), it is
evident that no election of returned candidate can be set aside or
be declared as void merely by improper acceptance of the
nomination papers, unless it is proved that because of the
improper acceptance, the result of the election of the returned
candidate has materially been affected.
36. In the instant case, the election petitioner has
made averment that the sole respondent left blank the column of
Part-3 of his nomination paper as well as column no. 5 of the
affidavit regarding his criminal antecedent. The election
Patna High Court E.P. No.5 of 2020 dt.07-01-2025
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petitioner did not disclose any criminal case against the sole
respondent. The sole respondent has categorically stated that
there was no any case against him at the time of filling up of
the nomination form and it was the reason that he mentioned
‘zero’ in column no.5 of his affidavit. So far as the second
allegation/averment made in the election petition that the sole
respondent did not disclose the PANs of his two sons is
concerned, his two minor sons were not allotted with PANs and
it was the reason that he did not disclose the PANs of his two
minor sons. The sole respondent has described the registration
number of all the four four-wheelers, he was possessing at the
time of filing his nomination form, in his affidavit. The election
petitioner could not disclose any other four-wheeler than those
which were disclosed by the sole respondent. Non-disclosure of
the Make, price and year of purchase of the vehicles cannot be
considered as substantial, on the basis whereof the election of
the sole respondent should be set aside. The election petitioner
failed to indicate any other property other than that which has
been disclosed by the sole respondent in his Form-26. As such,
the election petitioner failed to bring forth any material
information which was left to be mentioned in the nomination
papers or Form-26 of the sole respondent. Merely because some
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ommissions were crept in filling up of the nomination paper or
in furnishing affidavit in Form-26, cannot render the election as
void because those ommissions cannot be considered to be as
substantial in nature, which might have affected the result of the
election of the returned candidate materially. In the case of
Meirembam Prithviraj (supra) the elected candidate had
wrongly mentioned MBA degree from Mysore University to
which he did not actually possess and it was the reason that his
election was set aside by the Hon’ble Supreme Court. Similarly,
in the case of Kisan Shankar Kathore (supra) the returned
candidate has concealed his Bungalow No. 866 as well as a
vehicle in the name of his wife. In the present case, nothing has
been concealed by the sole respondent.
37. The Hon’ble Supreme Court in case of
Resurgence India (supra) held that merely because an
information is left or incomplete, the suppression thereof is not
material unless it is found to be of substantial character. Para-3
of the said decision is extracted hereinbelow:-
“Pursuant to the above order, the
Election Commission, vide order dated 28-6-
2002, issued certain directions to the
candidates to furnish full and complete
information in the form of an affidavit, duly
sworn before a Magistrate of the First Class,
Patna High Court E.P. No.5 of 2020 dt.07-01-2025
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for Democratic Reforms. It was also directed
that non-furnishing of the affidavit by any
candidate or furnishing of any wrong or
incomplete information or suppression of
any material information will result in the
rejection of the nomination paper, apart from
inviting penal consequences under the Penal
Code, 1860. It was further clarified that only
such information shall be considered to be
wrong or incomplete or suppression of
material information which is found to be a
defect of substantial character by the
Returning Officer in the summary inquiry
conducted by him at the time of scrutiny of
nomination papers.”
38. In the instant case, the petitioner has failed to
bring forth any specific and material thing which the sole
respondent suppressed in his nomination paper. Only because
some commissions/irregularities crept in the nomination paper,
the election of the returned candidate cannot be declared as void
on this ground because the election petitioner has failed to
establish that the ommissions/irregularities have substantially
affected the result of the election of the returned candidate.
39. The learned counsels for the sole respondent have
submitted that the present election petition suffers from the
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defect of non-joinder of the necessary party. The Returning
Officer, against whom there is allegation of accepting the
nomination paper improperly, is a necessary party. The election
petitioner did not implead the Returning Officer as a party in his
election petition, due to which the election petition should be
dismissed.
40. This submission of the learned counsels for the
sole respondent is not acceptable. Section 82 of ‘the Act, 1951’
makes provision as to who shall be joined as respondents in the
election petition. From bare perusal of Section 82 of ‘the Act,
1951’, it is clear that if the election petitioner in addition to,
making a prayer to declare the election of the returned candidate
as void, claims a further declaration that he (the election
petitioner) should be declared elected, in that case all the
contesting candidates are necessary parties. If the election
petitioner makes a simple prayer to declare the election of the
returned candidate as void and he does not claim a relief to
declare himself as elected candidate, in that case the returned
candidates are the necessary parties.
41. It has been settled that the right to challenge an
election by way of an election petition is a statutory right and
when the Statute itself makes specific provision as to who shall
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be joined as party, none other than the statutory mandatory
party, can be considered as necessary party in the election
petition. So this submission of the sole respondent cannot be
accepted.
42. The learned counsel for the election petitioner
has submitted that as per Rule 54-A of ‘the Rules, 1961’, the
Returning Officer has to deal with the postal ballot papers first
and thereafter the votes cast by the EVMs could be counted, but
in the present case, firstly, the votes cast through EVMs were
counted and thereafter the postal ballot papers were counted. The
learned counsel has submitted that the result of the election is
finally published in Form-20 and so far as the final result-sheet
of the present election is concerned, the votes counted through
postal ballot papers were shown subsequent to the votes cast
through EVMs, in Form-20..
43. In my view, the submission of the learned
counsel for the petitioner is misconceived. The election
petitioner (P.W.1), during his deposition, has stated that he came
to know from an officer engaged in counting of votes that postal
ballot papers were counted subsequent to the counting of votes
cast through EVMs. The election petitioner did not disclose the
name and designation of the officer who disclosed before him
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that the postal ballot papers were counted subsequent to the
votes cast through EVMs. The election petitioner even did not
take effort to examine that officer during the trial.
44. From the seriatim of entries entered into Form-
20 (the final result-sheet), it cannot be inferred that the postal
ballot papers were counted subsequent to the counting of votes
through EVMs. Before making entries in Form-20, the counting
of votes is completed and only after completion of counting of
votes, Form-20 is filled up. In this respect, Rule 56 (7) (b) of
‘the Rues, 1961’ is explicit.
Rule 56 (7) of ‘the Rues, 1961’ is extracted
hereinbelow:-
“56(7) After the counting of all ballot
papers contained in all the ballots used at
a polling station has been completed,-
(a) the counting supervisor shall fill
in and sign Part II-Result of Counting, in
Form 16, which shall also be signed by
the returning officer; and
b) the returning officer shall make
the entries in a result sheet in Form 20
and announce the particulars.”
45. From perusal of Rule 56(7)(b) of ‘the Rules,
1961’ it is clear that Form-20 is filled up after counting of votes.
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Moreover, the format of Form-20 has been given at the foot of
‘the Rules, 1961’ and from bare perusal of the format, it is clear
that the column of the votes recorded at the polling station has
been given prior to the votes recorded on the postal ballot
papers. As such, from bare perusal of the format of Form-20, it
transpires that firstly the row of the entries of the votes cast
through EVMs has been printed in Form-20 and subsequent
thereto votes recorded on postal ballot papers has been printed in
that form. Thus, the election petitioner failed to prove that the
postal ballot papers were counted subsequent to the counting of
votes cast through the EVMs.
46. On the basis of above-mentioned observations,
both the issues are decided negatively.
47. Consequently, the election petition is dismissed.
(Nawneet Kumar Pandey, J)
HR/-
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