Heard Mr. Manendra Nath Rai, petitioner, who appears in person, Mr. Manish Mathur, learned Counsel for the first respondent and Mr. Prashant Singh Atal, who has put in appearance on behalf of second respondent.
The afore-captioned election petition has been preferred by Manendra Nath Rai under Section 81 of the Representation of Peoples Act, 1951 (in short, referred to as the 'Act'), whereby the petitioner seeks to declare the election of second respondent (Ashutosh Tandon 'Gopal Ji') as null and void.
Shorn off unnecessary details the facts of the case are as under :
Petitioner-Manendra Nath Rai filed his nomination as an independent candidate on 27.8.2014, whereas respondent No.2-Ashutosh Tandon 'Gopal Ji' filed his nomination as a candidate of Bhartiya Janta Party to contest the bye-election of Legislative Assembly, 2014 from 173 East Assembly Constituency Lucknow. As per the election calender notified by the Election Commission, the last date of making nomination by the respective candidates was 27.8.2014 (Wednesday). After scrutinizing nomination papers/forms submitted by the candidate(s), the Returning Officer found that the petitioner had not indicated correct information in Columns 4, 5, 6, 7, 8 and 11 on the Affidavit of Form-26 as the petitioner had only put cross sign (x) in the aforesaid Columns and, accordingly, the petitioner was required to furnish correct information in the aforesaid columns by 3.00 PM on the last date of filing nomination paper i.e. 27.8.2014. As the petitioner failed to furnish the required information to the Returning Officer, therefore, the Returning Officer had rejected nomination papers filed by the petitioner on 28.8.2014 and informed him accordingly.
Feeling aggrieved by the action of the Returning Officer in rejecting the nomination papers on 28.8.2014, the petitioner has filed the instant election petition on the ground that nomination paper of the election petitioner for the said election was erroneously rejected and thereby election of the respondent No.2 is fit to be declared as void.
Submission of the petitioner, who appeared in person, is that he filled the columns in the nomination papers which were related to him and in rest of the columns, he put cross (x) sign as per instructions mentioned in Form-26 annexed at page No.22 of the writ petition, wherein it has been mentioned (**tks ykxw u gks mls dkV nsa). On the day of scrutiny i.e. 28.8.2014, nomination paper of the petitioner was rejected only on the grounds that the petitioner had not indicated correct information in columns 4, 5, 6, 7, 8 and 11 on the Affidavit (Form-26) as the petitioner had only put in the aforesaid columns cross (x) sign. He submitted that Section 36 (2) of the Act, 1951 deals with the ground of rejection of the nomination papers and none of the grounds mentioned in Section 36 (2) of the Act, 1951 are applicable in the case of the petitioner, as no inquiry was done by the Returning Officer prior to rejection of the nomination paper.
Elaborating his submission, petitioner-in-person has submitted that Section 36 (4) of the Act, 1951 prescribes that the Returning Officer will not reject any nomination paper on the ground of any defect which is not of substantial nature but in the present case, the ground on which nomination paper has been rejected by the Returning Officer is not of a substantial nature as he had only mentioned the information which was related to him and in rest of the column, he put cross sign, therefore, the action of the Returning Officer is contrary to the provision of Section 36 (4) of the Act, 1951. To strengthen his submission, reliance has been placed upon Kisan Shankar Kathore Vs. Arun Dattatray Sawant and others : AIR 2014 SC 2069.
In the oppugation, Mr. Manish Mathur, learned Counsel for the respondent No.1-Returning Officer, 173 Lucknow East Assembly bye-election/District Magistrate Office, Lucknow, while raising the plea of arraying Returning Officer as one of the respondents, has urged that in order to give effect to the pronouncement of the Hon'ble Supreme Court in the case of Union of India Vs. Association for Democratic Reforms and another : (2002) 5 SCC 294, the Election Commission of India issued Order no.3/ER/2002/JS-II/Vol.III dated 28.06.2002 authorizing the Returning Officer to reject the nomination paper of a candidate, who furnishes any wrong, incomplete or suppressed material information about his antecedent, assets, liability of self, spouse and dependents in the Affidavit filed along with the Nomination Paper. The Parliament in order to give effect to the direction of the Hon'ble Supreme Court in the case of Association for Democratic Reforms (supra) inserted Sections 33A, 33B in the Act by Act No.72 of 2002 with effect from 24.8.2002. Section 33A required the candidate to furnish information under the Act or the Rules made thereunder together with his antecedents.
Elaborating his submission, Mr. Manish Mathur has submitted that in view of Arikala Narasa Reddy Vs. Venkata Ram Reddy Reddygari and another : (2014) 5 SCC 312, instructions contained in the Handbook for Returning Officer are issued by the Election Commission in exercise of its statutory functions and, are, therefore, binding on the Returning Officers. Paragraph 6.10 (xi) of the Handbook for Returning Officers states in unambiguous words that incomplete affidavits are liable to be rejected leading to rejection of nomination paper on the ground of not filling up all columns in the affidavit even after reminders since the Hon'ble Supreme court of India has held that the voter has the elementary right to know full particulars of the candidate who is to represent him in the Parliament/Assemblies and such right to get information is universally recognised as natural right flowing from the concept of democracy and is an integral part of Art. 19(1)(a) of the Constitution of India. In terms of this direction, which has been held mandatory by the Hon'ble Supreme Court of India, the Returning Officer is under an obligation to reject the nomination of the petitioner in view of suppression of material information. In the present case, the petitioner has not indicated the reason for inapplicability of the information as required under columns 4, 5, 6, 7, 8 and 11 of the Nomination Form despite the fact that such information is mandtorily required to be given by a candidate. It has been pointed out that Column 4 relates to Income Tax details of the petitioner, his spouse and his dependents; Columns 5 and 6 relates to criminal antecedents of a candidate; Columns 7 and 8 relates to financial details of the candidate and his members of family. All candidates are mandatorily required to furnish such information but the petitioner by his own admission merely put cross sign (X) in those columns instead of furnishing information. Therefore, the Returning Officer had no other option except to reject the nomination paper as incomplete irrespective of any objection by other candidate or member of the general public. Furtheremore, document annexed as Annexure No.1 to the petition indicates that the Nomination Form would be rejected, if the blanks are not filled by the time fixed for scrutiny of nomination forms but despite the said reminder, neither the blank columns were filled in nor a fresh nomination form was submitted by the petitioner.
Mr. Mathur has lastly submitted that putting cross sign in columns indicates that the petitioner does not want to give concerned information, which is required as per Section 33 of the Act. As the petitioner has not given full information required in the concerned columns, therefore, putting cross sign will not serve the purpose. He further submitted that in para 3A, the petitioner gave information by writing 'not applicable', which shows that the petitioner was fully aware as to how the nomination is to be filed. Therefore, the assertion of the petitioner that he was not aware as to what mark is to put or written in Form 26 or its Affidavit, is not sustainable. The Returning Officer is not under an obligation to hold an enquiry in case information itself was not given as inquiry is required where ingredients are given and the same are under challenge. Therefore, the petitioner's nomination paper has rightly been rejected by the Returning Officer. In the backdrop of the aforesaid legal and factual position, it has been vehemently contended that the instant election petition is an abuse of the process of law; has no substance; and is liable to be rejected.
Mr. Prashant Singh 'Atal', learned Counsel for the second respondent, has submitted that the assertion of the petitioner that no opportunity was given in writing by the Returning Officer and the nomination paper was rejected in a casual manner, is patently erroneous and incorrect as Returning officer gave check list in connection with filing of nomination on 27.8.2014 at 1.58 PM and the petitioner was required to complete the deficiencies by 3.00 PM on the last date of filing nomination paper i.e. 27.8.2014 but the petitioner himself did not remove the deficiencies as pointed out by the Returning Officer within the time prescribed.
Elaborating his submission, Mr. Prashant Singh 'Atal' has submitted that Form 26 is available on website of the Election Commission of India and it contains guidelines and directions to fill up the same. The petitioner was required to fill either 'Nil' or 'Not Applicable' or 'Not Known', as the case may be. Filing of an Affidavit with blank particulars renders the Affidavit itself nugatory. It was, thus, the duty of the petitioner to file a complete Affidavit as required by law. The copy of the Nomination Paper and the Affidavit filed along with the Election Petition clearly shows that it was incomplete and was rightly rejected by the Returning Officer. Therefore, the Returning Officer has taken a legal and valid decision to reject the petitioner's nomination paper.
It has been next argued that Section 33 (1) of the Act provides that a candidate shall file a nomination paper 'completed in the prescribed form'. Admittedly, the petitioner has not filed the complete affidavit in Form 26. Thus, there was breach of Section 33 of the Act. The complete affidavit is required for a valid nomination paper. The Returning Officer served a notice to the petitioner at the time of scrutiny of the nomination paper, which was received by him under his own signatures, to file an affidavit completed in all respect but the petitioner did not choose to file the same and allowed his nomination paper to be rejected.
It has further been argued that the entire election petition does not contain any material fact relevant for the alleged ground. The facts alleged therein does not disclose any cause of action and the election petition is liable to be dismissed/rejected in view of the provisions contained in Order VII Rule 11 of the Code of Civil Procedure. Furthermore, the entire allegation has been made on the basis of the facts contained in the affidavit filed by the petitioner before the Returning Officer but the petitioner has not made available the copy of that affidavit to the answering respondent along with the Election Petition. Section 81 (3) of the Act provides that the copy served on the respondent must be 'attested to be true copy' under the signature of the petitioner. The copy served by the petitioner is not attested to be true copy but it is 'certified as photo/typed copy of original'. Thus, there is violation of Section 81 (3) of the Act and as such same is liable to be dismissed on this ground alone.
I have heard learned Counsel for the parties and carefully examined the material available on record.
Before dealing with the submissions advanced by the petitioner and other Counsel, it would be useful to mention that the Election Commission of India, vide Press Note dated 16.8.2014, notified the schedule for bye-elections to fill casual vacancies in Parliamentary/Assembly Constituencies. The said notification includes 173-Lucknow East vacancy, which is the subject matter of the instant election petition. The Commission has decided to hold bye-election to fill various vacancies as per the programme mentioned as under :
Event Date 1 Issue of Notification 20th August, 2014 (Wednesday) 2 Last date of making nominations 27th August, 2014 (Wednesday) 3 Scrutiny of Nominations 28th August, 2014 (Thursday) 4 Last date for withdrawal of Candidatures 30th August, 2014 (Saturday) 5 Date of Poll 13th September, 2014 (Saturday) 6 Counting of Votes 16th September, 2014 (Tuesday) 7 Date before which election shall be completed 19th September, 2014 (Friday) In order to appreciate rival submissions of the learned Counsel for the parties, it would be apt to examine various provisions of the Act.
Section 33 of the Act deals with Presentation of Nomination Paper and requirements for a valid nomination, which is reproduced as under :
"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.] [(1-A) Notwithstanding anything contained in sub-section (1), for election to the Legislative Assembly of Sikkim (deemed to be the Legislative Assembly of that State duly 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 3[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.]"
Under section 33 (1) of the Act either the candidate or his proposer is entitled to file nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer. If a candidate is not set up by a recognized political party his nomination paper has to be subscribed by ten proposers being electors of the constituency. In the case of a nomination submitted by the candidate for a seat reserved for Sikkimese of Bhutia-Lepcha origin and in case of seat reserved for Sanghas, at least twenty electors of the constituency are required to subscribe his nomination as proposers and as seconders and in case of a seat reserved for Sikkimese of Nepali origin, the candidates' nomination has to be subscribed by an elector of the constituency as proposer.
Section 33(2) of the Act says that in respect of the reserved seats the nomination papers of the candidates shall contain the declaration specifying the particular caste or tribe of which he is a member and the area in relation to which the caste or tribe is a Scheduled Caste or, as the case may be, a Scheduled Tribe of the State.
Section 33(3) of the Act enjoins that where a candidate has been dismissed for corruption or disloyalty incurring a disqualification under Section 9 for a period of five years unless such candidate files a certificate issued by the Election Commission to the effect that he has not been dismissed for corruption or disloyalty to the State, he is not entitled to present a nomination as a valid nomination.
Section 33(4) of the Act provides that on presentation of a nomination paper, the Returning Officer shall satisfy himself the name and electoral roll number of the candidate and his proposer as entered in the nomination paper. But as per the proviso to Sub-section (4) of Section 33 of the Act clerical, technical or printing errors etc., have to be overlooked. If a person is an elector in one constituency, he is entitled to contest in any other constituency. Similarly, an elector in one constituency is entitled to propose a candidate in any other constituency.
Section 33(5) of the Act provides that if a 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.
Sub-section (6) of Section 33 of the Act says that a candidate shall not be prevented from being nominated by more than one nomination paper. But under proviso to Sub-section (6) of Section 33 of the Act, 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. Under Sub-section (7) of Section 33 of the Act, a candidate is entitled to be nominated for election only for two constituencies of the Parliament or Legislative Assembly.
Section 36 of the Act deals with scrutiny of nominations and is extracted below :-
"36. Scrutiny of nominations.--(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]; 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.]"
Section 36 (3) of the Act lays down in specific words that the Returning Officer need not reject the nomination of a 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. If there is a failure to comply with any of the provisions of the Act in respect of such nomination papers and if the signature of the candidate or the proposer on the nomination paper is not genuine in respect of such nomination papers and if there are no irregularities in respect of other nomination papers, the other nomination papers can be accepted. Section 36(4) of the Act casts a duty that the Returning Officer shall not reject any nomination paper on the ground of any defect, which is not of a substantial character. Section 36(6) of the Act enjoins that 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.
A careful perusal of the aforesaid provisions of the Act goes to show that Section 33 deals with presentation of valid nomination papers and Section 36 deals as to whether a nomination is valid one or whether the candidate incurred any disqualification for filing a nomination or failed to comply with any of the statutory provisions and whether the signature of the candidate or the proposer on the nomination papers is genuine or not or every column is filled by the candidate according to the norms and guidelines issued by the Election Commission of India etc. If a candidate incurs any disqualification, his nomination is liable to be rejected under Section 36(2)(a) of the Act and if the candidate fails to fulfill or comply with the provisions of Section 33 of the Act in presenting a valid nomination such as subscribing ten proposers or any other guidelines/rules, if he is not a candidate set up by a recognized political party or if he is contesting on a reserved seat and if the caste certificate is not filed, such nomination cannot be treated as a valid nomination and therefore, it is liable to be rejected for failure to comply with the statutory provisions of Section 33 of the Act or if there is no requisite deposit made under Section 34 of the Act, then also such nominations are liable to be dismissed for failure to comply with the provisions of Section 34 of the Act.
In the backdrop of the aforesaid legal position, it is imminently clear that whenever there is an improper acceptance or rejection of the nomination papers on the above grounds, it shall be deemed that the election of a returned candidate is materially affected for non-compliance of the provisions of the Constitution or the provisions of the Act or the Rules made thereunder. Cases where the candidates are not entitled to contest by reason of illegal acceptance of their nomination papers are liable to be equated to such of the cases where the nominations of candidates were improperly rejected for the purpose of declaring the election as void.
The position which emerges out from the provisions, referred to above, and sub-section (1) of Section 33 of the Act that a nomination form completed in the prescribed form and signed by the candidate and by an elector of the constituency, as proposer is required to be presented either in person or by his proposer. 'Nomination' means a valid nomination as contemplated under Section 33 (1) of the Act containing signature of the candidate and the elector of the constituency as proposer.
In the case at hand, petitioner-in-person submitted that putting cross (x) sign in the columns Nos. 4, 5, 6, 7, 8 and 11 appended to Form-26 of the affidavit by him does not mean that it is blank but it is an answer as not applicable on his behalf. He further submitted that in the original nomination papers as well as format of affidavit provided to all the candidates, there was no description about the fact as to how and what is to be filled in the column which is not applicable to a candidate. In these backgrounds, he did not left any blank columns and the columns, which was not applicable to him, he put cross (x) sign on the same. Therefore, there is no fault or omission on his part in mentioning cross (x) sign on the columns which were not applicable to him.
In Resurgence India Vs. Election Commission of India and another : AIR 2014 SC 344, on culling out the principle from the earlier precedents, the Apex Court observed as under :
"Thus, this Court held that a voter has the elementary right to know full particulars of a candidate who is to represent him in the Parliament and such right to get information is universally recognized natural right flowing from the concept of democracy and is an integral part of Article 19(1)(a) of the Constitution. It was further held that the voter's speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is a must. Thus, in unequivocal terms, it is recognized that the citizen's right to know of the candidate who represents him in the Parliament will constitute an integral part of Article 19(1)(a) of the Constitution of India and any act, which is derogative of the fundamental rights is at the very outset ultra vires".
The Apex Court in Resurgence India (supra) posed the question whether filing of an Affidavit stating that the information given in the Affidavit is correct, but leaving the contents blank would fulfill the objectives behind filing the same, and answered the question in the negative on the reasoning that the ultimate purpose of filing of an Affidavit along with the nomination paper is to effectuate the fundamental right of the citizen under Article 19(1)(a) of the Constitution of India and the citizens are required to have the necessary information in order to make a choice of their voting and, therefore, when a candidate files an affidavit with blank particulars at the time of filing of the nomination paper, it renders the affidavit itself nugatory. Thereafter, the Apex Court, while referring para 73 of People's Union for Civil Liberties (PUCL) and another Vs. Union of India and another : (2003) 3 SCC 399 and elaborating further has held as under :
"If we accept the contention raised by Union of India, viz., the candidate who has filed an affidavit with false information as well as the candidate who has filed an affidavit with particulars left blank should be treated at par, it will result in breach of fundamental right guaranteed under Article 19(1)(a) of the Constitution, viz., ''right to know' which is inclusive of freedom of speech and expression as interpreted in Association for Democratic Reforms (supra)."
In the same case, the Apex Court further held that filing of an affidavit with blank particulars would directly hit by Section 125A (i) of the 1951 Act. Ultimately, the Apex Court propounded as under :-
"In succinct, if the Election Commission accepts the nomination papers in spite of blank particulars in the affidavits, it will directly violate the fundamental right of the citizen to know the criminal antecedents, assets and liabilities and educational qualification of the candidate. Therefore, accepting affidavit with blank particulars from the candidate will rescind the verdict in Association for Democratic Reforms (supra). Further, the subsequent act of prosecuting the candidate under Section 125A(i) will bear no significance as far as the breach of fundamental right of the citizen is concerned. For the aforesaid reasons, we are unable to accept the contention of the Union of India."
The Apex Court, thereafter, summarized its directions in the following manner:
"(i) The voter has the elementary right to know full particulars of a candidate who is to represent him in the Parliament/ Assemblies and such right to get information is universally recognized. Thus, it is held that right to know about the candidate is a natural right flowing from the concept of democracy and is an integral part of Article 19(1)(a) of the Constitution.
(ii) The ultimate purpose of filing of affidavit along with the nomination paper is to effectuate the fundamental right of the citizens under Article 19(1)(a) of the Constitution of India. The citizens are supposed to have the necessary information at the time of filing of nomination paper and for that purpose, the Returning Officer can very well compel a candidate to furnish the relevant information.
(iii) Filing of affidavit with blank particulars will render the affidavit nugatory.
(iv) It is the duty of the Returning Officer to check whether the information required is fully furnished at the time of filing of affidavit with the nomination paper since such information is very vital for giving effect to the 'right to know' of the citizens. If a candidate fails to fill the blanks even after the reminder by the Returning Officer, the nomination paper is fit to be rejected. We do comprehend that the power of Returning Officer to reject the nomination paper must be exercised very sparingly but the bar should not be laid so high that the justice itself is prejudiced.
(v) We clarify to the extent that Para 73 of People's Union for Civil Liberties case (supra) will not come in the way of the Returning Officer to reject the nomination paper when affidavit is filed with blank particulars.
(vi) The candidate must take the minimum effort to explicitly remark as 'NIL' or 'Not Applicable' or 'Not known' in the columns and not to leave the particulars blank.
(vii) Filing of affidavit with blanks will be directly hit by Section 125A (i) of the RP Act However, as the nomination paper itself is rejected by the Returning Officer, we find no reason why the candidate must be again penalized for the same act by prosecuting him/her."
In deference to the aforesaid directions of the Apex Court, the Election Commission of India had issued guidelines to the Chief Electoral Officers of all the States and Union Territories on 30.9.2013. The relevant portion of guidelines dated 30.9.2013 is reproduced as under :
"....2. The Hon'ble Court has accordingly held that in the affidavits filed by candidates along with their nomination paper, the candidates are required to fill up all columns therein and no column can be left blank. Therefore, at the time of filing of affidavit, RO has to check whether all columns of the affidavit filed with the nomination paper are filled up. If not, the RO shall give a reminder to the candidate to furnish information against blank columns. The Hon'ble Court has held that is there is no information to be furnished against any item, appropriate remarks such as 'NIL' or 'Not Applicable' or 'Not Known' as may be available shall be indicated in such column. They should not leave any column blank. If a candidate fails to fill the blanks even after reminder, the nomination paper will be liable to be rejected by the RO at the time of scrutiny of nomination papers.
....
5.The CHECK LIST of documents required to be filed by a candidate along with the nomination paper was prescribed by the Commission vide letter No. 576/3/2009/SDR dated 10.02.2009 in order to ensure transparency and accountability and to streamline the procedure of filing of nomination and scrutiny of nomination papers. The CHECK LIST was modified in pursuance of Hon'ble Supreme Court judgment dated 9.12.2011 in CA No. 4956 of 2010 - Ramesh Rout Vs. Ravindra Nath Rout and circulated vide letter No. 576/3/2013/SDR dated 21-01-2013. The same CHECK LIST is now further amended to comply with the direction of the Apex Court in the instant case to insert another clause for reminding the candidates to fill in the blank columns, if any, in the affidavit. A revised format of the CHECK LIST is enclosed herewith. Please replaced the existing format of Check List in the ROs Handbook as well in other records where the Check List is kept.
6. The Commission has directed that the revised format of the CHECK LIST should be brought to the notice of all the Returning Officers for all elections conducted by the Commission, including elections to Rajya Sabha and Legislative Councils (in the States having Legislative Council). You may kindly ensure that all the Returning Officers, including Returning Officers for elections to Council of States and Legislative Councils (in States were Legislative Council is in existence), receive a copy of this letter along with the revised CHECK LIST and acknowledgement of receipt be obtained from every Returning Officer in the State........."
It is pertinent to mention that the Affidavit of Form 26 is essential part of the nomination papers as would be evident from Rule 4A of Conduct of Election Rules, 1961, which has been inserted w.e.f. 3.9.2002. Rule 4A reads as follows:
"4A. Form of affidavit to be filed at the time of delivering nomination paper - 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 of the Act, also deliver to him an affidavit sworn by the candidate before a Magistrate of the first class or a Notary in Form 26."
Thus perusal of the Affidavit of Form-26 makes it abundantly clear that details of certain categories of offences in respect of which cognizance has been taken or charges have been framed must be given/furnished. This Rule is in consonance with Section 33-A of the 1951 Act. Section 33(1) envisages that information has to be given in accordance with the Rules. This is in addition to the information to be provided as per Section 33(1) (i) and (ii). An affidavit which is required to be filed by the candidate stipulates mentioning of cases pending against the candidate in which charges have been framed by the Court for offences punishable with imprisonment for two years or more and also the cases which are pending against him in which cognizance has been taken by the court other than the cases which have been mentioned in Clause 5 (i) of Form 26. Apart from the aforesaid, Clause 6 of Form 26 deals with conviction.
In Resurgence India (supra), the Apex Court has held that if a nomination paper is filed with particulars left blank, the Returning Officer is empowered to reject the nomination paper. The Apex Court has further held that a candidate must take the minimum effort to explicitly remark as 'Nil' or 'Not Applicable' or 'Not known' in the columns. In Resurgence India (supra), it has been clarified that para 73 of People's Union for Civil Liberties (PUCL) case will not come in the way of Returning Officer to reject the nomination paper when the affidavit has been filed with blank particulars.
It is not in dispute that the Returning Officer, at the time of filing nomination paper, had handed over the duplicate of the Check list of documents in connection with filing of nomination, which was received by the petitioner by putting his signature thereon. The same is reproduced as under :
(b) Above mentioned columns in the Affidavit in Form 26 have been left blank. You must submit a fresh Affidavit will columns duly filed up before the commencement of scrutiny of nominations, failing which the nomination paper will be liable to be rejected.
(c) .................X.........should be filed latest by...................X.....................
Received:
Sd/-
M.N. Rai Sd/- (signature of candidate) Signature of RO/ARO Date & Time : Place N.B. 1. The affidavit in Form 26 and Forms A & B have to be filed by 3.00 p.m. On the last date of filing nominations. 2. The nomination paper will be rejected if a candidate fails to fill the blanks in Form 26 even after reminder by RO by the hour fixed for scrutiny of nomination paper. 3. Oath has to be taken after filing nomination paper and before the date fixed for scrutiny. 4. Certified extract of electoral roll can be filled up to the time of scrutiny. 5. Security deposit should be made either before filing of nomination paper or at the time of filing of nomination paper. Therefore, there is no question of issuing notice for making the security deposit.
6. If the Columns in the affidavit are blank and incomplete the candidate should file an affidavit complete in all respects instead of filing an affidavit in respect of only the blank columns and the second affidavit which would be the complete one will be disseminated through the website."
From bare perusal of the aforesaid check list, which was provided to the petitioner and has not been disputed at any time by the petitioner, shows that the Returning Officer was required to furnish specific information in respect of column Nos. 4, 5, 6, 7, 8 and 11 of affidavit of Form 26 latest by 3.00 PM on the last date of filing nominations. It has been indicated in the aforesaid check-list that if the Columns in the affidavit are blank and incomplete the candidate should file an affidavit complete in all respects instead of filing an affidavit in respect of only the blank columns and the second affidavit which would be the complete one will be disseminated through the website.
There is no quarrel to the fact that the petitioner did not file second complete affidavit which was circulated through the website nor he has moved any application seeking time for filing the same before the Returning Officer. It is the case of the petitioner that the Returning Officer, while examining nomination papers, has provided him check list of documents, wherein it has been mentioned that column Nos. 4, 5, 6, 7, 8 and 11 of the affidavit of Form 26 are incomplete. The petitioner's contention is that he did not leave those columns as he put cross (x) sign in those columns, therefore, he has no knowledge about the fact as to what is to be mentioned in those columns. Even for the sake of arguments, it is presumed that the petitioner had no knowledge as to what is to be filled in those columns, he ought to have visited the website of the Election Commission of India as indicated in Column-6 of the note mentioned in the bottom of the check list of documents or he ought to have gathered/made query from the Returning Officer to this aspect but the petitioner chooses not to make these exercises and waited for rejection of his nomination papers for which he himself is to blame.
At this juncture, one thing is also apt to mention that it is said that the petitioner is a practicing Advocate of the High Court and it cannot be presumed that such a candidate would not be aware as to how the nomination paper is to be filled and what are the guidelines of the Election Commission of India pursuant to the directions of the Apex Court, as noted hereinabove. It is not the case of the petitioner that he has been differently treated as other candidate(s), who had also put cross (x) sign in the columns of affidavit of Form-26, was allowed to contest the election by the Returning Officer and their applications were not rejected by the Returning Officer. It is the specific stand of the opposite parties rather not disputed by the petitioner at any stage that candidates, who had filled in the columns of the nomination papers as well Affidavit of Form-26, as per the norms/guidelines/rules prescribed by the Election Commission of India, were allowed to contest the election.
Considering the matter in its entirety, this Court comes to the conclusion that as per evidence available on record, affidavit of Form-26, which was the part of the nomination papers, was incomplete as the petitioner had not made correct remarks in columns 4, 5, 6, 7, 8, 11 as informed by the Returning Officer to him through the check-list, and therefore, affidavit of Form-26 filed by the petitioner cannot be termed as valid affidavit in view of the law as propounded in Resurgence India (Supra). Furthermore, there is failure on the part of the petitioner to comply with guidelines issued by the Election Commission of India in reference to the directions of Resurgence India (supra), therefore, the Returning Officer had not committed error in rejecting the petitioner's nomination paper under the provisions of the Act.
Accordingly, on a careful consideration of the pleadings and the law propounded on the subject by the Apex Court, this Court finds no force in the arguments advanced by the petitioner and I hold that the present election petition is wholly misconceived and is based on absolutely misinterpretation and misunderstanding of the legal provision enshrined in the Constitution as well as in Representation of Peoples Act and, as such, the same is hereby dismissed.
There shall be no order as to costs.
Order Date: 19th February, 2016 Ajit/-
Hon'ble Dr. Devendra Kumar Arora, J.
The election petition is dismissed vide order of date passed on separate sheets.
Order Date : 19.2.2016 Ajit/-