Ritesh Kumar Singh vs Abhay Singh on 24 April, 2025

Allahabad High Court

Ritesh Kumar Singh vs Abhay Singh on 24 April, 2025

Author: Manish Mathur

Bench: Manish Mathur

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2025:AHC-LKO:23485
 
                                                                  Reserved on 17.03.2025
 
                                                                  Delivered on 24.04.2025
 

 

 
Case :- ELECTION PETITION No. - 10 of 2022
 

 
Petitioner :- Ritesh Kumar Singh
 
Respondent :- Abhay Singh
 
Counsel for Petitioner :- In Person,Pawan Kumar Pandey,Sharad Pathak
 
Counsel for Respondent :- Anuj Pandey,Anil Kumar Yadav,Anupam Mehrotra,Rakesh Kumar Upadhyaya
 

 
Hon'ble Manish Mathur,J.
 

1. Heard Mr. Sharad Pathak, learned counsel for election petitioner and Mr. Anupam Mehrotra, learned counsel for respondent.

2. Election petition has been filed seeking a declaration that election dated 10.03.2022 issued by the Returning Officer of 276-Gosaiganj Constituency in the General Election of Uttar Pradesh for the State Assembly-2022 in favour of respondent be set aside and declared null and void.

3. Vide order dated 13.05.2022, notice had been issued whereafter the respondent put in appearance and has filed preliminary objections regarding maintainability of the election petition. The said preliminary objections raised in terms of Order 7 Rule 11 (a) of the Civil Procedure Code, 1908 are being adjudicated upon.

4. Learned counsel for election petitioner, however, has challenged maintainability of preliminary objections on the ground that once notice has already been issued in terms of Chapter 15-A (5) of the Allahabad High Court Rules 1952 and with no application for recall of such issuance of notice having been filed, the stage of filing preliminary objections has expired and therefore the said preliminary objection itself is not maintainable.

5. Learned counsel for respondent in response thereto submits that earlier by means of order dated 13.05.2022, only notices had been issued to the respondent to show cause why the election petition may not be admitted. He has also adverted to the subsequent order dated 06.04.2023 whereby delay in filing preliminary objections has been condoned. It is submitted that there is no bar in filing preliminary objections under Rule 15-A (5) of the Rules of 1952.

6. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, particularly the order dated 13.05.2022, it is evident that notice had been issued to the respondent only to show cause why the election petition may not be admitted. Till date the election petition has not been admitted. It is also evident from the order sheet that in the order dated 06.04.2023 it has been noticed that delay in filing preliminary objections was condoned and the said objections were to be heard on merits.

7. Even otherwise Chapter 15-A (5) of the Allahabad High Court Rules only indicates a provision that once an election petition is listed before the Bench so constituted, unless it is dismissed under Section 86 (1) of the Representation of the Peoples Act, 1951 or is otherwise defective, notice may be issued to respondent to answer the claim and to put up a defence by filing written statement alongwith list of all the documents.

8. The aforesaid provision therefore does not prohibit filing of any preliminary objections even after issuance of notice and appearance of the respondent. Even otherwise, in the considered opinion of this Court, it is only after issuance of notice and appearance of respondent in pursuance thereto that preliminary objections can be filed by such a respondent, particularly as in the present case where the election petition has not yet been admitted and preliminary objections have been filed at the very inception without filing of any written statement, particularly with delay in filing the preliminary objections having been condoned with a further directions that it will be heard on merits.

9. Hon’ble Supreme Court in the case of Vithalbhai (P) Ltd. versus Union of India, (2005) 4 SCC 315 while placing reliance on earlier judgments, has clearly held that the power exercisable under Order 7 Rule 11 of the Code of Civil Procedure can be exercised at any stage of subsequent proceedings although the need for raising such a preliminary objection as early as possible has been emphasized.

10. In view of statutory provisions as well as judgment rendered by Hon’ble Supreme Court, objection raised to maintainability of preliminary objections is hereby rejected.

Pleadings in the Petition.

11. It has been submitted by learned counsel for petitioner that aforesaid election in which the respondent has been declared elected is being challenged primarily on the ground that his nomination papers were improperly accepted by the Returning Officer inasmuch as the licence of notary of affidavit submitted by respondent in Form-26 read with Section 33-A of the Act of 1951 had expired rendering such affidavit void due to which the nomination paper submitted by respondent was liable to be rejected. It is further submitted that incorrect acceptance of nomination paper of respondent would also amount to corrupt practice and undue influence.

12. It is submitted that the plaint specifically indicates that affidavit filed by respondent in Form-26 of the Conduct of Election Rules, 1961 alongwith his nomination papers is void affidavit since it was notarized by an unauthorized notary who as on the date of notarization, was incompetent to notarize the same since the licence of notary Mr. Surendra Kumar Gupta was valid only from 2006 upto 2011 as evident from information obtained by one Mr. Pawan Kumar Tiwari under Right to Information Act, 2005 provided on 08.04.2022. 

13. Paragraph-17 of the plaint also raises a ground that nomination of respondent has been illegally accepted as the affidavit mandated under provisions of Representation of Peoples Act, 1951 is false and fabricated which does not disclose information as required under Section 33-A of the Act as well as under Form-26 read with Rule 4-A of Rules of 1961.

14. Learned counsel for respondent has raised preliminary objection regarding maintainability of election petition on the ground that same is required to be rejected due to non-compliance of Section 83 (1) (a) & (b) read with Section 86 of  the Act of 1951 as well as Rule 94-A of the Conduct of Election Rules, 1961.

15. Elaborating upon his preliminary objections, learned counsel for respondent submits that in terms of Section 83 (1) (a) an election petition is mandatorily required to contain a concise statement of the material facts on which petitioner relies. It is submitted that Section 83 (1) (b) of the Act of 1951 also mandatorily requires an election petition to set-forth full particulars of any corrupt practice that the petitioner alleges including a full statement of the names of parties alleged to have committed such corrupt practice. It is therefore submitted that the plaint does not indicate any concise statement of material fact in terms of Section 100 of the Act of 1951 pertaining to grounds for declaring election to be void. It is also submitted that Rule 94-A of the Conduct of Election Rules clearly provides for an affidavit in terms of proviso to Section 83 (1) to be sworn and shall be filed in Form-25 alongwith election petition, which having not been filed by petitioner and being a mandatory condition, the election petition is liable to be rejected on that ground.

16. Further elaborating upon his preliminary objections, learned counsel for respondent submits that Form-26 required to be filed by a candidate in terms of Section 33-A of the Act of 1951 does not form a part and parcel of a nomination paper and therefore cannot be a ground for rejecting nomination under Section 36(2) of the Act.

17. It is, therefore, submitted that in view of the aforesaid fact, the said Form-26 not being a part and parcel of the nomination paper due to which a nomination paper cannot be rejected at the threshold, no cause of action accrues to petitioner particularly since there is no material fact indicated in the plaint that respondent was aware of alleged incompetence of aforesaid notary advocate.

18. It is also submitted that the election petition and every such copy is required to be attested in terms of Section 81(3) of the Act whereas in the present case, petitioner has provided a copy certifying it to be a photo-copy/type copy of its original. It is submitted that there is material difference between every copy to be attested by petitioner under his own signature to be a true copy of the petition and a certificate that it is photo-copy/type copy of the original. It is further submitted that even the annexures to petition are not verified in the same manner as the petition.

19. It is further submitted that the petitioner has merely alleged that election was materially in effected without any pleading in the petition regarding voting pattern and for this reason alone the petition is not maintainable.

20. Learned counsel for respondent has primarily laid emphasis on the fact that even as per averments made in the plaint, no cause of action accrues to election petitioner.

21. Learned counsel for election petitioner has refuted submissions advanced by learned counsel for respondent with the submission that petitioner has substantially complied with provisions of Section 81 (3) of the Act of 1951 by certifying under his own signature that the copy supplied to respondent was a photo-copy of the petition and therefore the ground taken is hyper-technical.

22. It is also submitted that specific material averments have already been made in the relevant paragraphs of the plaint with regard to improper acceptance of nomination paper of respondent which amounts to undue influence as per law settled by Hon’ble Supreme Court. Verification of annexures has also been made in the same manner as that of petition.

23. With regard to objection pertaining to Form-25 having not been filed in support of allegation of corrupt practice, it has been submitted that the same is not of such a substantial character so as to require rejection of plaint and such a defect is curable.

24. Considering submissions advanced by learned counsel for parties, issues with regard to preliminary objections are being framed as follows:-

Issues

25. Whether the plaint is liable to be rejected under Order 7 Rule 11 of Civil Procedure Code because:-

1-(a). No cause of action accrues even if any defect in affidavit under Form-26 filed by the candidate is established?

1-(b). Absence of pleadings of corrupt practice or undue influence as required under Section 83 (1) (a) & (b) read with Section 86 (1) of the Representation of Peoples Act, 1951 and Rule 94-A of the Conduct of Election Rules, 1961?

2. Plaint not having been attested in terms of Section 81(3) of the Act of 1951?

3. Plaint does not indicate any pleading with regard to voting pattern?

4. Effect of not filing Form-25 with the plaint?

Question No.1-(a)

26. The present issue pertains to effect of a defective affidavit filed by a candidate in Form-26 in terms of Section 33-A of the Representation of Peoples Act, 1951.

27. Section 32 of the Act of 1951 provides for nomination of candidates for election with Section 33 providing mode for presentation of nomination paper and requirements for a valid nomination. Section 33-A inserted by means of Act No. 72 of 2002 w.e.f. 24.08.2002 pertains to right to information by the general public pertaining to a candidate. Sections 33 and 33-A of the Act provide as follows:-

“[33. Presentation of nomination paper and requirements 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:

[Provided that a candidate not set up by a recognised political party, shall not be deemed to be duly nominated for election from a constituency unless the nomination paper is subscribed by ten proposers being electors of the constituency:

Provided further that no nomination paper shall be delivered to the returning officer on a day which is a public holiday:

Provided also that in the case of a local authorities’ constituency, graduates’ constituency or teachers’ constituency, the reference to “an elector of the constituency as proposer” shall be construed as a reference to ten per cent. of the electors of the constituency or ten such electors, whichever is less, as proposers.]

[(1A) Notwithstanding anything contained in sub-section (1), for election to the Legislative Assembly of Sikkim (deemed to be the Legislative Assembly of that State only constituted under the Constitution), the nomination paper to be delivered to the returning officer shall be in such form and manner as may be prescribed:

Provided that the said nomination paper shall be subscribed by the candidate as assenting to the nomination, and-

(a) in the case of a seat reserved for Sikkimese of Bhutia-Lepcha origin, also by at least twenty electors of the constituency as proposers and twenty electors of the constituency as seconders;

(b) in the case of a seat reserved for Sanghas, also by at least twenty electors of the constituency as proposers and at least twenty electors of the constituency as seconders;

(c) in the case of a seat reserved for Sikkimese of Nepali origin, by an elector of the constituency as proposer:

Provided further that no nomination paper shall be delivered to the returning officer on a day which is a public holiday.]

(2) In a constituency where any seat is reserved, a candidate shall not be deemed to be qualified to be chosen to fill that seat unless his nomination paper contains a declaration by him specifying the particular caste or tribe of which he is a member and the area in relation to which that caste or tribe is a Scheduled Caste or, as the case may be, a Scheduled Tribe of the State.

(3) Where the candidate is a person who, having held any office referred to in [section 9] has been dismissed and a period of five years has not elapsed since the dismissal, such person shall not be deemed to be duly nominated as a candidate unless his nomination paper is accompanied by a certificate issued in the prescribed manner by the Election Commission to the effect that he has not been dismissed for corruption or disloyalty to the State.

(4) On the presentation of a nomination paper, the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls:

[Provided that no misnomer or inaccurate description or clerical, technical or printing error in regard to the name of the candidate or his proposer or any other person, or in regard to any place, mentioned in the electoral roll or the nomination paper and no clerical, technical or printing error in regard to the electoral roll numbers of any such person in the electoral roll or the nomination paper, shall affect the full operation of the electoral roll or the nomination paper with respect to such person or place in any case where the description in regard to the name of the person or place is such as to be commonly understood; and the returning officer shall permit any such misnomer or inaccurate description or clerical, technical or printing error to be corrected and where necessary, direct that any such misnomer, inaccurate description, clerical, technical or printing error in the electoral roll or in the nomination paper shall be overlooked.]

(5) Where the candidate is an elector of a different constituency, a copy of the electoral roll of that constituency or of the relevant part thereof or a certified copy of the relevant entries in such roll shall, unless it has been filed along with the nomination paper, be produced before the returning officer at the time of scrutiny.

[(6) Nothing in this section shall prevent any candidate from being nominated by more than one nomination paper:

Provided that not more than four nomination papers shall be presented by or on behalf of any candidate or accepted by the returning officer for election in the same constituency.]]

[(7) Notwithstanding anything contained in sub-section (6) or in any other provisions of this Act, a person shall not be nominated as a candidate for election,-

(a) in the case of a general election to the House of the People (whether or not held simultaneously from all Parliamentary constituencies), from more than two Parliamentary constituencies;

(b) in the case of a general election to the Legislative Assembly of a State (whether or not held simultaneously from all Assembly constituencies), from more than two Assembly constituencies in that State;

(c) in the case of a biennial election to the Legislative Council of a State having such Council, from more than two Council constituencies in the State:

(d) in the case of a biennial election to the Council of States for filling two or more seats allotted to a State, for filling more than two such seats;

(e) in the case of bye-elections to the House of the People from two or more Parliamentary constituencies which are held simultaneously, from more than two such Parliamentary constituencies;

(f) in the case of bye-elections to the Legislative Assembly of a State from two or more Assembly constituencies which are held simultaneously, from more than two such Assembly constituencies;

(g) in the case of bye-elections to the Council of States for filling two or more seats allotted to a State, which are held simultaneously,  for filling more than two such seats;

(h) in the case of bye-elections to the Legislative Council of a State having such Council from two or more Council constituencies which are held simultaneously, from more than two such Council constituencies.

Explanation. For the purposes of this sub-section, two or more bye-elections shall be deemed to be held simultaneously where the notification calling such bye-elections are issued by the Election Commission under sections 147, 149, 150 or, as the case may be, 151 on the same date.]

[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.]”

28. Section 36 of the Act thereafter provides for scrutiny of nomination to the effect that Returning Officer shall examine nomination papers and decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject a nomination on the grounds indicated therein. Section 36 of the Act of 1951 is as follows:-

“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 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 thinks 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 (20 of 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.]

(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 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.]”

29. A combined perusal of Sections 33, 33-A and 36 of the Act is indicative of the fact that Section 33(4) and its proviso clearly indicates that on presentation of a nomination paper, the Returning Officer shall satisfy himself with regard to particulars entered in the nomination paper and that no misnomer or inaccurate description or any clerical error with regard to details entered shall affect the nomination paper and such misnomer, inaccurate description, clerical, technical or printing error in the nomination paper would be over-looked.

30. Section 33-A pertains to information required to be provided by a candidate apart from any other information which he is required to furnish under the Act or Rules made thereunder in terms of Section 33.

31. Section 36 pertains to scrutiny of nominations and a summary examination and decision with regard to objections raised pertaining to nomination of a candidate. The ground for rejecting any nomination on the basis of such summary inquiry is clearly indicated therein. Section 36 (2) (b) indicates that such nomination may be rejected in case there has been a failure to comply with any of the provisions of Section 33 or Section 34.

32. It is, therefore, evident that in case of any defect in an affidavit filed in terms of Section 33-A, there is no provision for rejection of a nomination paper in terms of Section 36 of the Act of 1951.

33. Section 36 (4) of the Act also indicates that Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.

34. The provisions of Section 33 and 33-A of the Act are required to be examined in the light of Rule 4 and 4-A of the Conduct of Election Rules, 1961 with Rule 4 providing for every nomination paper presented under Section 33 (1) of the Act to be in such one of the Forms-2-A to 2-E as may be appropriate. Rule 4-A however pertains to an affidavit sworn by the candidate before a Magistrate of the class or a notary in Form-26. It is pertinent to notice that such an affidavit sworn in Form-26 is to be in addition to the nomination paper since it particularly adverts to the fact that such an affidavit in Form-26 is required to be delivered at the time of presentation of nomination paper which shall be under Section 33 (1) of the Act.

35. In the considered opinion of this Court, therefore, a combined perusal of aforesaid provisions, particularly Section 33, 33-A of the Act of 1951 and Rules 4 and 4-A of the Rules of 1961 clearly indicate the aspect that the affidavit required to be submitted in Form-26 is not in terms of Section 33 of the Act of 1951 but in terms of Section 33-A of the Act.

36. As has already been noticed hereinabove, Section 36 of the Act does not provide for rejection of nomination paper of a candidate on account of any defect in the affidavit filed in Form-26 in terms of Section 33-A of the Act of 1951.

37. It is also noticeable that penalty for filing a false affidavit etc. in terms of Section 33-A has been dealt with under Part-VII Chapter-III of the Act of 1951 pertaining to electoral offenses. Section 125-A of the Act provides as follows:-

“[125A. Penalty for filing false affidavit, etc.- A candidate who himself or through his proposer, with intent to be elected in an election,-

(i) fails to furnish information relating to sub-section (1) of section 33A; or

(ii) gives false information which he knows or has reason to believe to be false; or

(iii) conceals any information,

in his nomination paper delivered under sub-section (1) of section 33 or in his affidavit which is required to be delivered under sub-section (2) of section 33A, as the case may be, shall, notwithstanding anything contained in any other law for the time being in force, be punishable with imprisonment for a term which may extend to six months, or with fine, or with both.]”

38. The aforesaid Section, therefore, clearly provides for punishment of imprisonment in case of failure to furnish information under Section 33-A of the Act; gives false information which he has reason to believe to be false or conceals any information.

39. The aforesaid provision also does not indicate any penalty for an affidavit filed where the licence of the notary had expired as on the date of affidavit being sworn, if the affidavit was otherwise in terms of Form-26.

40. At this stage it would be useful to advert to Form-2B which is required to be filed as a nomination paper in terms of Rule 4 of the Rules of 1961. The said Form-2B being a nomination paper contains Part III-A wherein details of conviction or criminal cases pending against a candidate or any other form of disqualification is required. It is therefore evident that such details are already a part and parcel of the nomination paper.

41. From the aforesaid discussion, it can be deduced that the affidavit filed in Form-26 in terms of Section 33-A of the Act of 1951 read with Rule 4-A of the Rules of 1961 does not form part and parcel of the nomination paper and defect, if any, in such Form-26 would not render a nomination paper to be rejected in terms of Section 36 of the Act of 1951.

42. However, the aforesaid issue is also required to be examined in terms of judgment rendered by Hon’ble Supreme Court in the case of Union of India versus Association for Democratic Reform & another, (2002) 5 SCC 294 in which the aspect of information required to be furnished by a candidate pertaining to his details has been enunciated with an insistence on affidavit to be filed by the candidate and for a direction to reject the nomination paper for furnishing wrong information or concealing material information by the candidate and also for providing for a summary inquiry.

43. The aforesaid judgment was thereafter discussed by Hon’ble Supreme Court in the case of People’s Union for Civil Liberties (PUCL) & another versus Union of India and another, (2003) 4 SCC 399 in the following terms:-

“73. While no exception can be taken to the insistence of affidavit with regard to the matters specified in the judgment in Assn. for Democratic Reforms case the direction to reject the nomination paper for furnishing wrong information or concealing material information and providing for a summary enquiry at the time of scrutiny of the nominations, cannot be justified. In the case of assets and liabilities, it would be very difficult for the Returning Officer to consider the truth or otherwise of the details furnished with reference to the “documentary proof”. Very often, in such matters the documentary proof may not be clinching and the candidate concerned may be handicapped to rebut the allegation then and there. If sufficient time is provided, he may be able to produce proof to contradict the objector’s version. It is true that the aforesaid directions issued by the Election Commission are not under challenge but at the same time prima facie it appears that the Election Commission is required to revise its instructions in the light of directions issued in Assn. for Democratic Reforms case and as provided under the Representation of the People Act and its Third Amendment.

123. Finally, the summary of my conclusions:

(1) Securing information on the basic details concerning the candidates contesting for elections to Parliament or the State Legislature promotes freedom of expression and therefore the right to information forms an integral part of Article 19 (1)(a). This right to information is, however, qualitatively different from the right to get information about public affairs or the right to receive information through the press and electronic media, though, to a certain extent, there may be overlapping.

(2) The right to vote at the elections to the House of the People or Legislative Assembly is a constitutional right but not merely a statutory right; freedom of voting as distinct from right to vote is a facet of the fundamental right enshrined in Article 19(1)(a). The casting of vote in favour of one or the other candidate marks the accomplishment of freedom of expression of the voter.

(3) The directives given by this Court in Union of India v. Assn. for Democratic Reforms were intended to operate only till the law was made by the legislature and in that sense “pro tempore” in nature. Once legislation is made, the Court has to make an independent assessment in order to evaluate whether the items of Information statutorily ordained are reasonably adequate to secure the right of Information available to the voter/citizen. In embarking on this exercise, the points of disclosure indicated by this Court, even if they be tentative or ad hoc in nature, should be given due weight and substantial departure therefrom cannot be countenanced.

(4) The Court has to take a holistic view and adopt a balanced approach in examining the legislation providing for right to information and laying down the parameters of that right.

(5) Section 33-B inserted by the Representation of the People (Third Amendment) Act, 2002 does not pass the test of constitutionality, firstly, for the reason that it imposes a blanket ban on dissemination of information other than that spelt out in the enactment irrespective of the need of the hour and the future exigencies and expedients and secondly, for the reason that the ban operates despite the fact that the disclosure of information now provided for is deficient and Inadequate.

(6) The right to information provided for by Parliament under Section 33-A in regard to the pending criminal cases and past involvement in such cases is reasonably adequate to safeguard the right to information vested in the voter/citizen. However, there is no good reason for excluding the pending cases in which cognizance has been taken by the Court from the ambit of disclosure.

(7) The provision made in Section 75-A regarding declaration of assets and liabilities of the elected candidates to the Speaker or the Chairman of the House has failed to effectuate the right to information and the freedom of expression of the voters/citizens. Having accepted the need to insist on disclosure of assets and liabilities of the elected candidate together with those of the spouse or dependent children, Parliament ought to have made a provision for furnishing this information at the time of filing the nomination. Failure to do so has resulted in the violation of guarantee under Article 19(1)(a).

(8) The failure to provide for disclosure of educational qualification does not, in practical terms, infringe the freedom of expression.

(9) The Election Commission has to issue revised instructions to ensure implementation of Section 33-A subject to what is laid down in this judgment regarding the cases in which cognizance has been taken. The Election Commission’s orders related to disclosure of assets and liabilities will still hold good and continue to be operative. However, Direction 4 of para 14 insofar as verification of assets and llabilities by means of summary enquiry and rejection of nomination paper on the ground of furnishing wrong information or suppressing material information should not be enforced.”

44. The aforesaid aspect was again dealt with by Hon’ble Supreme Court in the case of Resugence India versus Election Commission of India & another, 2014 SCC (14) 189 in the following terms:-

“24. We also clarify to the extent that in our coherent opinion the above power of rejection by the Returning Officer is not barred by para 73 of People’s Union for Civil Liberties which reads as under: (SCC p. 451)

“73. While no exception can be taken to the insistence of affidavit with regard to the matters specified in Assn. for Democratic Reforms case, the direction to reject the nomination paper for furnishing wrong information or concealing material information and providing for a summary enquiry at the time of scrutiny of the nominations, cannot be justified. In the case of assets and liabilities, it would be very difficult for the Returning Officer to consider the truth or otherwise of the details furnished with reference to the ‘documentary proof’. Very often, in such matters the documentary proof may not be clinching and the candidate concerned may be handicapped to rebut the allegation then and there. If sufficient time is provided, he may be able to produce proof to contradict the objector’s version. It is true that the aforesaid directions issued by the Election Commission are not under challenge but at the same time prima facie it appears that the Election Commission is required to revise its instructions in the light of directions issued in Assn. for Democratic Reforms case and as provided under the Representation of the People Act and its third Amendment.”

The aforesaid paragraph, no doubt, stresses on the importance of filing of affidavit, however, opines that the direction to reject the nomination paper for furnishing wrong information or concealing material information and providing for a summary inquiry at the time of scrutiny of the nominations cannot be justified since in such matters the documentary proof may not be clinching and the candidate concerned may be handicapped to rebut the allegation then and there. This Court was of the opinion that if sufficient time is provided, the candidate may be in a position to produce proof to contradict the objector’s version. The object behind penning down the aforesaid reasoning is to accommodate genuine situation where the candidate is trapped by false allegations and is unable to rebut the allegation within a short time.

25. Para 73 of the aforesaid judgment in People’s Union for Civil Liberties case nowhere contemplates a situation where it bars the Returning Officer to reject the nomination paper on account of filing affidavit with particulars left blank. Therefore, we hereby clarify that the abovesaid paragraph will not come in the way of the Returning Officer to reject the nomination paper if the said affidavit is filed with blank columns. 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, if he desires that his nomination paper be accepted by the Returning Officer.”

45. The aforesaid judgments clearly enunciate the law that upon scrutiny of nomination papers, the same can in fact be rejected on the ground of correct information not being supplied even in terms of affidavit required to be filed by a candidate under Form-26 of the Act. However, the said judgments clearly indicate that such rejection is to be an exception and only in cases where a detailed inquiry by production of evidence is not required and can prima facie be established by bare perusal of the nomination paper or the affidavit filed in terms of Section 33-A of the Act.

46. In the considered opinion of this Court, the ground taken in the plaint pertaining to licence of notary who notarized the affidavit by respondent in Form-26 would not be an aspect which can be considered by the Returning Officer at the time of scrutiny of nominations since it would require evidence to be produced pertaining to such licence having been expired or its subsequent renewal. Therefore, the present aspect would not fall within the exception and could not have been a ground for rejection of nomination paper.

47. Section 36(2) of the Act of 1951 also indicates that upon submission of nomination paper and during scrutiny thereof, the Returning Officer is required to decide all objections which may be made to any nomination. He is also empowered to reject nomination on his own motion in terms of the grounds indicated therein. In the present case, it is admitted that during scrutiny of nomination, no objection was filed or raised by petitioner against nomination of respondent.

48. In the considered opinion of this Court, the rejection of nomination papers being specifically indicated to be carried out only in terms of Section 36 (2) of the Act, no objections having been taken by petitioner, there was no occasion for the Returning Officer to have rejected the nomination.

49. In the case of Bhogendra Jha versus Manoj Kumar Jha, (1997) 2 SCC 236 Hon’ble Supreme Court has held as follows:-

“6. Under Section 36(4) of the Act, the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. Under Section 36(2), the Returning Officer has the power to conduct an enquiry. It is settled law that it is a summary enquiry. When the Returning Officer scrutinises the nomination paper, the parties or the nominees are required to be present and if they seek liberty to place the necessary material, the Returning Officer is enjoined to adjourn the case to the next day. In case they are able to place the necessary material and satisfy the Returning Officer of the correctness of the enrolment as a candidate or the address of the nominee, the Returning Officer would consider the same. But he is not expected to sift the evidence and find the placement in the electoral roll, the name and particulars of the nominee.”

50. In the case of Durga Shankar Mehta versus Raghuraj Singh, AIR 1954 Supreme Court 520, it has been held as follows:-

“In other words, the electoral roll is conclusive as to the qualification of the elector except where a disqualification is expressly alleged or proved. The ‘electoral roll in the case of Vasant Rao did describe him as having been of proper age and on the face of it therefore he was fully qualified. to be chosen a member of the State Legislative Assembly. As no objection was taken to his nomination before the Returning Officer at the time of scrutiny, the latter was bound to take the entry in the electoral roll as conclusive; and if in these circumstances he did not reject the nomination of Vasant Rao, it cannot be said that this was an improper acceptance of nomination on his part which section 100(1) (c) of the Act contemplates”

51. Upon applicability of aforesaid judgments in the present facts and circumstances, particularly averments made in the plaint, it is noticed that it is not the case of petitioner that he raised any objections at the time of scrutinization of nomination paper pertaining to the defect in the affidavit filed by respondent in Form-26.

52. Once such a conclusion has been drawn as discussed hereinabove, the sole ground taken in the plaint of defect in Form-26, in the considered opinion of this Court does not provide a cause of action to maintain the present petition.

53. Question No.1-(a) is therefore answered negatively against petitioner.

Question No.1-(b)

54The said question pertains to lack of material particulars in the plaint with regard to corrupt practice and undue influence.

55. For the said purposes perusal of Section 100 of the Act of 1951 is also required which provides grounds for declaring election to be void with sub-section (d) (i) pertaining to improper acceptance of any nomination paper.

56. With regard to said aspect, a perusal of plaint indicates the averment that due to affidavit filed by respondent in Form-26 being notarized by a notary Advocate who was not competent to notarize the same as the licence of the notary, Mr. Surendra Kumar Gupta was valid only from 2006 upto 2011, therefore the nomination paper was required to be rejected in view of such defect in Form-26 and its acceptance amounts to corrupt practice of undue influence.

57. With regard to preliminary objection raised pertaining to such an averment, it is evident that Section 100 (1) (d) (ii) provides a ground for declaring an election to be void by any corrupt practice committed in the interest of returned candidate (by agent other than his election agent). Section 2 (c) of the Act of 1951 defines ‘corrupt practice’ to means of any of the practices specified in Section 123.

58. Section 123 defines corrupt practice with undue influence being explained in sub-section 2 as follows:-

“(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-

(i) threatens any candidate or any elector, or any person in whom a candidate or an elector 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 publicaction, 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.”

59. A perusal of the aforesaid provision indicates that undue influence would be any direct or indirect interference or attempt at interference with the free exercise of any electoral right.

60. The term electoral right has been defined under Section 79 (d) of the Act of 1951 to mean the right of a person to stand or not to stand as, or (to withdraw or not to withdraw) from being, a candidate, or to vote or refrain from voting at an election.

61. With regard to such a ground for declaring election to be void, therefore, it would be necessary for the election petitioner to have pleaded that on account of the deficiency indicated in affidavit filed by respondent in Form-26, it impaired the right of a person to stand or not to stand or to withdraw or not to withdraw from being a candidate or to vote or refrain from voting at an election.

62. A perusal of the plaint, however, clearly indicates that no such specific plea has been made in the plaint.

63. For purposes of declaring an election to be void in terms of grounds indicated therein, it was imperative for petitioner to have complied with Section 83 of the Act of 1951 to contain a concise statement of the material fact on which he had relied.

64. In the considered opinion of this Court, apart from pleading defect in the affidavit filed in Form-26, a specific pleading was also required to be made as to how the same would amount to corrupt practice thereby being an undue influence in terms of Section 123 (2) of the Act of 1951 and therefore coming within the scope of Section 79 (d) of the said Act.

65. Although in paragraph-17 of the plaint, it has been stated that the affidavit in Form-26 does not disclose information as required under Section 33-A of the Act, but there is no specific plea as to the information which was required to be disclosed by respondent and has not been complied with.

66. Such a specific averment having not been made in the plaint, the provisions of Section 83 (1) (a) of the Act of 1951 are clearly not complied with.

67. The said issue, therefore, is adjudicated upon negatively against the petitioner.

68. In terms of answers to questions 1-(a) & (b), cause of action having not been established in favour of petitioner, the remaining issues are not being adjudicated upon.

69. In view of discussion made hereinabove as established in the answer to question 1-(a) & (b), the cause of action not being made out, the election petition is, therefore, rejected at the preliminary stage upholding the preliminary objections in terms of Order 7 Rule 11 (a) of Code of Civil Procedure.

70. In terms of Section 99 (b) of the Act of 1951, cost of Rs. 25,000/- is hereby imposed upon petitioner (Ritesh Kumar Singh) to be payable to the respondent (Abhay Singh) within a period of six weeks from today.

71. In terms of Section 103 of the Act of 1951, registry is directed to intimate the substance of this decision to the State Election Commission and the Speaker of the State Legislature concerned forthwith. An authenticated copy of this judgment shall also be sent to the State Election Commission for the said purpose.

Order Date :- 24.04.2025

Satish