Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4261 OF 2007

KISAN SHANKAR KATHORE …..APPELLANT(S)

VERSUS

ARUN DATTATRAY SAWANT & ORS. …..RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

The appellant herein was the successful candidate in the

election of legislative assembly, which he contested from 56,

Ambernath Constituency, Thane District, Maharashtra. There were

five candidates in the fray for which the elections were held on

October 13, 2004 and the results were declared on October 16, 2004.

After he was declared elected, his election was challenged by the first

respondent, who is a voter in the said constituency. He filed the

election petition in the High Court of Judicature at Bombay stating that

the appellant's nomination had been improperly accepted by the

Returning Officer and the election was void due to non-compliance of

the provisions of the Constitution of India, the Representation of the

Civil Appeal No. 4261 of 2007 Page 1 of 40

Page 2 People Act, 1951 (hereinafter referred to as 'the Act') as well as Rules

and Orders framed under the said Act.

2. The election petition was filed under Section 100(1)(d)(i) and (iv) of

the Act on the ground that in the nomination form filled in by the

appellant he had suppressed his dues payable to the Government,

suppressed the assets of his spouse and also suppressed the

information and assets of a partnership firm of which he is a partner.

The appellant contested the said petition. Evidence was led. After

hearing the arguments, the High Court passed judgment dated August

16, 2007 accepting the plea of the first respondent that the nomination

form of the appellant was defective and should not have been

accepted by the Returning Officer. Thus, while allowing the election

petition and setting aside of the election of the appellant, the High

Court recorded the non-disclosure on following counts:

a) Non-disclosure of dues to Maharashtra State

Electricity Board in respect of two service connections

held by him amounting to Rs.79,200/- and Rs.66,250/-.

b) The appellant failed to disclose the ownership of

Bungalow No. 866 and the taxes dues thereof

amounting to Rs.3,445/- owned by his wife.

c) The appellant failed to disclose the particulars of the

vehicle MH-05-AC-55 owned by the wife.

d)The appellant is guilty of non-disclosure of property

owned by firm Padmavati Developers of which the

appellant is a partner, which owns two plots of lands

measuring 1313 sq.mtrs. and 1292 sq.mts. in Survey

No. 48, Hissa No. 9 of Mouze Kalyan, Taluka

Ambarnath, District Thane, Maharashtra.

Civil Appeal No. 4261 of 2007 Page 2 of 40

Page 3 Challenging the impugned judgment, the present statutory

appeal is filed, as provided under Section 116A of the Act.

3. We may state, at the outset, that there is no dispute on facts, namely,

the appellant had not disclosed certain informations, as found by the

High Court and noted above, in his nomination form. Entire dispute

rests on the issue as to whether it was incumbent upon the appellant

to have disclosed such an information and non-disclosure thereof

rendered his nomination invalid and void. The nature of information

given by the appellant in his nomination form, on the basis of which

the appellant contends that it ought to have been treated as

substantial compliance, would be taken note of later at the

appropriate stage. We deem it appropriate to state the legal position

contained in the Act, Rules and Orders as well as the judgments of

this Court in order to understand as to whether there was a

substantial compliance by the appellant in the form of information

given by him or it amounted to non-disclosure of the material

information warranting rejection of his nomination.

4. Since the petition filed before the High Court was under Section

100(1)(d)(i) and (iv), we first take note of these provisions, which are

to the following effect:

Civil Appeal No. 4261 of 2007 Page 3 of 40

Page 4 “100. Grounds for declaring election to be void. – (1)

Subject to the provisions of sub-section (2) if the High

Court is of opinion –

xx xx xx

(d)that the result of the election, in so far as it

concerns a returned candidate, has been materially

affected –

(i) by the improper acceptance or any nomination,

or

xx xx xx

(iv) by any non-compliance with the provisions of

the Constitution or of this Act or of any rules or

orders made under this Act,

the High Court shall declare the election of the returned

candidate to be void.”

5. Section 100(1)(d) talks of result of election being 'materially affected'

by improper acceptance, we would like to reproduce here Section

33(1) of the Act, which mandates filing of a nomination paper

completed in the prescribed form in order to constitute it to be a valid

nomination. It reads as under:

“33. Presentation of nomination paper and

requirement for a valid nomination. – (1) On or

before the date appointed under clause (a) of section 30

each candidate shall, either in person or by his

proposer, between the hours of eleven o'clock in the

forenoon and three o'clock in the afternoon deliver to the

returning officer at the place specified in this behalf in

the notice issued under section 31 a nomination paper

completed in the prescribed form and signed by the

candidate and by an elector of the constituency as

proposer:

xx xx xx”

Civil Appeal No. 4261 of 2007 Page 4 of 40

Page 5 6. Other relevant provisions are Sections 33A, 34, 35 and 36 of the Act,

which are as under:

“33A. Right to information. – (1) A candidate

shall, apart from any information which he is required to

furnish, under this Act or the rules made thereunder, in

his nomination paper delivered under sub-section(1) of

section 33, also furnish the information as to whether –

(i)he is accused of any offence punishable with

imprisonment for two years or more in a pending

case in which a charge has been framed by the

court of competent jurisdiction;

(ii)he has been convicted of an offence other than

any offence referred to in sub-section (1) or sub-

section (2), or covered in sub-section (3), of

section 8 and sentenced to imprisonment for one

year or more.

(2) The candidate or his proposer, as the case may be,

shall, at the time of delivering to the returning officer the

nomination paper under sub-section (1) of section 33,

also deliver to him an affidavit sworn by the candidate in

a prescribed form verifying the information specified in

sub-section (1).

(3) The returning officer shall, as soon as may be after

the furnishing of information to him under sub-section

(1), display the aforesaid information by affixing a copy

of the affidavit, delivered under sub-section (2), at a

conspicuous place at his office for the information of the

electors relating to a constituency for which the

nomination paper is delivered.”

xx xx xx

34. Deposits. – (1) A candidate shall not be deemed to

be duly nominated for election from a constituency

unless he deposits or causes to be deposited. –

(a)in the case of an election from a Parliamentary

constituency, a sum of twenty-five thousand

rupees or where the candidate is a member of a

Scheduled Caste or Scheduled Tribe, a sum of

twelve thousand five hundred rupees; and

Civil Appeal No. 4261 of 2007 Page 5 of 40

Page 6 (b)in the case of an election from an Assembly or

Council constituency, a sum of ten thousand

rupees or where the candidate is a member of a

Scheduled Caste or Scheduled Tribe, a sum of

five thousand rupees:

Provided that where a candidate has been nominated by

more than one nomination paper for election in the

same constituency, not more than one deposit shall be

required of him under this sub-section.

(2) Any sum required to be deposited under sub-section

(1) shall not be deemed to have been deposited under

that sub-section unless at the time of delivery of the

nomination paper under sub-section (1) or, as the case

may be, sub-section (1A) of section 33 the candidate

has either deposited or caused to be deposited that sum

with the returning officer in cash or enclosed with the

nomination paper a receipt showing that the said sum

has been deposited by him or on his behalf in the

Reserve Bank of India or in a Government Treasury.

xx xx xx

35. Notice of nominations and the time and place

for their scrutiny. – The returning officer shall, on

receiving the nomination paper under sub-section (1) or,

as the case may be, sub-section (1A) of section 33,

inform the person or persons delivering the same of the

date, time and place fixed for the scrutiny of nominations

and shall enter on the nomination paper its serial

number, and shall sign thereon a certificate stating the

date on which and the hour at which the nomination

paper has been delivered to him; and shall, as soon as

may be thereafter, cause to be affixed in some

conspicuous place in his office a notice of the

nomination containing descriptions similar to those

contained in the nomination paper, both of the candidate

and of the proposer.

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

Civil Appeal No. 4261 of 2007 Page 6 of 40

Page 7 may appoint; and the returning officer shall give them all

reasonable facilities for examining the nomination

papers of all candidates which have been delivered

within the time and in the manner laid down in section

33.

(2) The returning officer shall then examine the

nomination papers and shall decide all objections which

may be made to any nomination and may, either on

such objection or on his own motion, after such

summary inquiry, if any, as he things necessary, reject

any nomination on any of the following grounds:–

(a)that on the date fixed for the scrutiny of

nominations the candidate either is not qualified

or is disqualified for being chosen to fill the seat

under any of the following provisions that may

be applicable, namely:–

Articles 84, 102, 173 and 191,

Part II of this Act, and sections 4 and 14 of the

Government of Union Territories Act, 1963; or

(b)that there has been a failure to comply with any

of the provisions of section 33 or section 34; or

(c)that the signature of the candidate or the

proposer on the nomination paper is not

genuine.

(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

Civil Appeal No. 4261 of 2007 Page 7 of 40

Page 8 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.”

7. After having taken note of the aforesaid statutory provisions, let us

now proceed to discuss some of the important judgments of this Court

and to cull out legal principles therefrom on the subject, which have a

direct bearing on the issue of disclosure of information.

8. First case that needs a mention, which is a milestone and trigerred

electoral reforms in this country, is Union of India v. Association for

Civil Appeal No. 4261 of 2007 Page 8 of 40

Page 9 Democratic Reforms & Anr., (2002) 5 SCC 294. In this case, the

Court held that it was incumbent upon every candidate, who is

contesting election, to give information about his assets and other

affairs, which requirement is not only essential part of fair and free

elections, inasmuch as, every voter has a right to know about these

details of the candidates, such a requirement is also covered by

freedom of speech granted under Article 19(1)(a) of the Constitution

of India. The summing up the entire discussion in the judgment can

be found in the following passage:

“46. To sum up the legal and constitutional position

which emerges from the aforesaid discussion, it can be

stated that:

1.The jurisdiction of the Election Commission is wide

enough to include all powers necessary for smooth

conduct of elections and the word “elections” is used in

a wide sense to include the entire process of election

which consists of several stages and embraces many

steps.

2.The limitation on plenary character of power is

when Parliament or State Legislature has made a valid

law relating to or in connection with elections, the

Commission is required to act in conformity with the said

provisions. IN case where law is silent, Article 324 is a

reservoir of power to act for the avowed purpose of

having free and fair election. The Constitution has taken

care of leaving scope for exercise of residuary power by

the Commission in its own right as a creature of the

Constitution in the infinite variety of situations that may

emerge from time to time in a large democracy, as every

contingency could not be foreseen or anticipated by the

enacted laws or the rules. By issuing necessary

directions, the Commission can fill the vacuum till there

is legislation on the subject. In Kanhiya Lal Omar case

(1985) 4 SCC 628 the Court construed the expression

Civil Appeal No. 4261 of 2007 Page 9 of 40

Page 10 “superintendence, direction and control” in Article 324(1)

and held that a direction may mean an order issued to a

particular individual or a precept which many may have

to follow and it may be a specific or a general order and

such phrase should be construed liberally empowering

the Election Commission to issue such orders.

3.The word “elections” includes the entire process of

election which consists of several stages and it

embraces many steps, some of which may have an

important bearing on the process of choosing a

candidate. Fair election contemplates disclosure by the

candidate of his past including the assets held by him so

as to give a proper choice to the candidate according to

his thinking and opinion. As stated earlier, in Common

Cause case, (1996) 2 SCC 752 the Court dealt with a

contention that elections in the country are fought with

the help of money power which is gathered from black

sources and once elected to power, it becomes easy to

collect tons of black money, which is used for retaining

power and for re-election. If on an affidavit a candidate

is required to disclose the assets held by him at the time

of election, the voter can decide whether he could be re-

elected even in case where he has collected tons of

money.

Presuming, as contended by the learned Senior

Counsel Mr. Ashwani Kumar, that this condition may not

be much effective for breaking a vicious circle which has

polluted the basic democracy in the country as the

amount would be unaccounted. May be true, still this

would have its own effect as a step-in-aid and voters

may not elect law-breakers as law-makers and some

flowers of democracy may blossom.

4.To maintain the purity of elections and in particular

to bring transparency in the process of election, the

Commission can ask the candidates about the

expenditure incurred by the political parties and this

transparency in the process of election would include

transparency of a candidate who seeks election or re-

election. In a democracy, the electoral process has a

strategic role. The little man of this country would have

basic elementary right to know full particulars of a

candidate who is to represent him in Parliament where

laws to bind his liberty and property may be enacted.

Civil Appeal No. 4261 of 2007 Page 10 of 40

Page 11 5.The right to get information in democracy is

recognised all throughout and it is a natural right flowing

from the concept of democracy. At this stage, we would

refer to Article 19(1) and (2) of the International

Covenant on Civil and Political Rights, which is as

under:

“(1) Everyone shall have the right to hold opinions

without interference.

(2) Everyone shall have the right to freedom of

expression; this right shall include freedom to seek,

receive and impart information and ideas of all kinds,

regardless of frontiers, either orally, in writing or in print,

in the form of art, or through any other media of his

choice.”

6.On cumulative reading of a plethora of decisions of

this Court as referred to, it is clear that if the field meant

for legislature and executive is left unoccupied

detrimental to the public interest, this Court would have

ample jurisdiction under Article 32 read with Articles 141

and 142 of the Constitution to issue necessary

directions to the executive to subserve public interest.

7.Under our Constitution, Article 19(1)(a) provides for

freedom of speech and expression. Voter's speech or

expression in case of election would include casting of

votes, that is to say, voter speaks out or expresses by

casting vote. For this purpose, information about the

candidate to be selected is a must. Voter's (little man –

citizen's) right to know antecedents including criminal

past of his candidate contesting election for MP or MLA

is much more fundamental and basic for survival of

democracy. The little man may think over before

making his choice of electing law-breakers as law-

makers.

9. On the basis of the aforesaid discussion, this Court issued directions

for filing affidavit and the nature of information which was to be given,

spelling out the same in para 48 of the judgment, which reads as

under:

Civil Appeal No. 4261 of 2007 Page 11 of 40

Page 12 “48.The Election Commission is directed to call for

information on affidavit by issuing necessary order in

exercise of its power under Article 324 of the

Constitution of India from each candidate seeking

election to Parliament or a State Legislature as a

necessary part of his nomination paper, furnishing

therein, information on the following aspects in relation

to his/her candidature:

(1)Whether the candidate is convicted/acquitted/

discharged of any criminal offence in the past – if any,

whether he is punished with imprisonment or fine.

(2)Prior to six months of filing of nomination, whether

the candidate is accused in any pending case, of any

offence punishable with imprisonment for two years or

more, and in which charge is framed or cognizance is

taken by the court of law. If so, the details thereof.

(3)The assets (immovable, movable, bank balance,

etc.) of a candidate and of his/her spouse and that of

dependants.

(4)Liabilities, if any, particularly whether there are any

overdues of any public financial institution or

government dues.

(5)The educational qualifications of the candidate.”

10. The judgment in Association for Democratic Reforms led to

amendment in the Act with the induction of Section 33A (already

reproduced above) as well as Section 33B therein. Election

Commission also laid down guidelines in the year 2002. Insofar as

Section 33B is concerned, it was struck down by this Court in the

case of People's Union for Civil Liberties (PUCL) & Anr. v. Union

of India & Anr., (2003) 4 SCC 399.

Civil Appeal No. 4261 of 2007 Page 12 of 40

Page 13 11. In order to bring the directions contained in the aforesaid two

judgments within the statutory framework, revised guidelines were

issued by the Election Commission on March 23, 2006. In para 5 of

these guidelines, para 14 of the judgment in Association for

Democratic Reforms is reproduced. Likewise, para 13 takes note of

the directions given in the case of People's Union for Civil

Liberties. In para 15, it is noted that the Supreme Court, while

striking down Section 33B of the Act, stated that earlier directions of

Election Commission dated June 28, 2002 would continue to operate

subject to the afore-mentioned directions of the Court and, therefore,

revised directions had become necessary. In para 16, these

directions are issued in supersession of earlier directions dated June

28, 2002. Paras 1 and 3 of these guidelines/directions are relevant

for us, and, therefore, we reproduce the same as under:

“(1)Every candidate at the time of filing his nomination

paper for any election to the Council of State, House of

the People, Legislative Assembly of a State of the

Legislative Council of a State having such a council,

shall furnish full and complete information in regard to

the matters specified by the Hon'ble Supreme Court and

quoted in paras 13 and 14 above, in an affidavit, the

format whereof is annexed hereto as Annexure-I to this

order.

xx xx xx

(3)Non-furnishing of the affidavit by any candidate

shall be considered to be violation of the order of the

Hon'ble Supreme Court and the nomination of the

candidate concerned shall be liable to rejection by the

returning officer at the time of scrutiny of nomination

such non-furnishing of the affidavit.”

Civil Appeal No. 4261 of 2007 Page 13 of 40

Page 14 12. We would also like to reproduce para 17 of these guidelines, which

concerns the case at hand:

“17.For the removal of doubt, it is hereby clarified that

the earlier direction contained in para 14(4) of the earlier

order dated 28th June, 2002, in so far as verification of

assets and liabilities by means of summary enquiry and

rejection of nomination paper on the ground of

furnishing wrong information or suppressing material

information is not enforceable in pursuance of the order

dated 13th March, 2003 of the Apex Court. It is further

clarified that apart from the affidavit Annexure-I hereto

referred to in para 16(1) above, the candidate shall have

to comply with the other requirements as spelt out in the

Representation of the People Act, 1951, as amended by

the Representation of the People (Third Amendment)

Act, 2002 and the Conduct of Election Rules, 1961, as

amended by the Conduct of Elections (Amendment)

Rules, 2002.”

13. The meaning and scope of these guidelines came up for discussion

before this Court in Resurgence India v. Election Commission of

India & Anr., (2013) 11 Scale 348. That judgment was rendered in a

writ petition filed under Article 32 of the Constitution of India for

issuance of specific directions to effectuate meaningful

implementation of the judgments in Association of Democratic

Reforms, People's Union for Civil Liberties and also to direct the

Election Commission to make it compulsory for the Returning Officer

to ensure that the affidavits filed by the contestants are complete in all

respects and to reject the affidavits having blank particulars. This

petition, thus was filed taking note of the practice which had started

Civil Appeal No. 4261 of 2007 Page 14 of 40

Page 15 prevailing, namely, many candidates were leaving some of the

columns blank in their affidavits thereby omitting to provide the

required information. As per the petitioner in that case, in such an

eventuality the Returning Officer should reject the nomination

whereas the Union of India pleaded that it should be treated at par

with filing false affidavits and the candidate filing such an affidavit

should be prosecuted under Section 125A of the Act. The Court took

note of the provisions of Sections 33A, 36 and 125A of the Act and

thereafter referred to the earlier three Judge Bench judgment of this

Court in Shaligram Shrivastava v. Naresh Singh Patel, (2003) 2

SCC 176, wherein the Court had discussed the power of rejecting the

nomination paper by the Returning Officer of a candidate filing the

affidavit with particulars left blank. The relevant discussion in this

behalf is in paras 15 and 16 of the said judgment, which read as

under:

“15.Although, the grounds of contention may not be

exactly similar to the case on hand but the reasoning

rendered in that verdict will come in aid for ariving at a

decision in the given case. In order to arrive at a

conclusion in that case, this Court traversed through the

objective behind filing the proforma. The proforma

mandated in that case was required to be filed as to the

necessary and relevant information with regard to the

candidate in the light of Section 8 of the RP Act. This

Court further held that at the time of scrutiny, the

Returning Officer is entitled to satisfy himself whether

the candidate is qualified and not disqualified, hence,

the Returning Officer was authorized to seek such

information to be furnished at the time or before scrutiny.

It was further held that if the candidate fails to furnish

Civil Appeal No. 4261 of 2007 Page 15 of 40

Page 16 such information and also absents himself at the time of

the scrutiny of the nomination papers, then he is

obviously avoiding a statutory inquiry being conducted

by the Returning Officer under Section 36(2) of the RP

Act relating to his being not qualified or disqualified in

the light of Section 8 of the RP Act. It is bound to result

in defect of a substantial character in the nomination.

This Court further held as under:

“17. In the case in hand the candidate had failed to

furnish such information as sought on the proforma

given to him and had also failed to be present

personally or through his representative at the time

of scrutiny. The statutory duty/power of Returning

Officer for holding proper scrutiny of nomination

paper was rendered nugatory. No scrutiny of the

nomination paper could be made under Section

36(2) of the Act in the light of Section 8 of the Act.

It certainly rendered the nomination paper suffering

from defect of substantial character and the

Returning Officer was within his rights in rejecting

the same.”

16.It is clear that the Returning Officers derive the

power to reject the nomination papers on the ground

that the contents to be filled in the affidavits are

essential to effectuate the intent of the provisions of the

RP Act and as a consequence, leaving the affidavit

blank will in fact make it impossible for the Returning

Officer to verify whether the candidate is qualified or

disqualified which indeed will frustrate the object behind

filing the same. In concise, this Court in Shaligram

(supra) evaluated the purpose behind filing the proforma

for advancing latitude to the Returning Officers to reject

the nomination papers.”

14. The legal position is, thereafter, summarized in para 27, which

becomes important for our purpose and, therefore, we produce the

same hereunder:

“27. What emerges from the above discussion can

be summarized in the form of following difections:

(i)The voter has the elementary right to know full

particulars of a candidate who is to represent him in the

Civil Appeal No. 4261 of 2007 Page 16 of 40

Page 17 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.”

Civil Appeal No. 4261 of 2007 Page 17 of 40

Page 18 15. Keeping in mind the aforesaid statutory framework as well as the legal

principles enunciated in the afore-noted judgments, we now proceed

to discuss the nature of information about which there was non-

disclosure by the appellant.

RE – Non-disclosure of Government dues

16. The appellant had not disclosed, in his nomination paper/ affidavit,

that he was in arrears in respect of two electricity meters standing in

his name, in respect whereof electricity connection was given by the

Maharashtra State Electricity Board (for short, 'MSEB'). The

outstanding amount in these two meters was Rs.79,200/- and

Rs.66,250/- respectively. It was proved, on the basis of evidence led

by the respondent herein, that the aforesaid dues were outstanding

against these two electricity connections. The defence of the

appellant, however, was that one electricity meter, which was in his

residential bungalow, was defective and complaints in this behalf were

made to MSEB from time to time and because of that dispute he was

orally advised by the officials of MSEB not to pay the amount.

17. The High Court proceeded on the assumption that there was a

dispute. However, as per the High Court that could not be a valid

reason for not disclosing this information with a note that the matter

Civil Appeal No. 4261 of 2007 Page 18 of 40

Page 19 was pending review at the hands of MSEB. Thereafter, the High

Court posed the question as to whether such non-disclosure can be

treated as a technical defect or it is a substantive one. As per the

High Court, the answer could be found by adverting to the form and

the affidavits to be filed along with the nomination form. These forms

required the candidates to disclose his liabilities/overdues to public

financial institution and Government dues. Since MSEB is a

Government body, the appellant was supposed to give this

information. The High Court opined that non-disclosure of this

information, which is very vital to enable the voter to form his opinion

about the candidate's antecedents, resulted in misinformation and

disinformation thereby influencing the voters to take an uninformed

decision. The discussion on this aspect is summed up by the High

Court in the following manner:

“Accordingly, I have no hesitation in taking the view that

it is a case of non-disclosure of liability in respect of

outstanding electricity bills payable to Government

Undertaking (M.S.E.B.); and that non-disclosure is a

substantive defect in the affidavits filed along with

nomination form. The test to hold that the defect is

substantive, in my opinion, is not the amount involved,

but the conscious act of non-disclosure and suppression

of that fact. It would be a case of technical defect if

there was some clerical error in the information

disclosed by the candidate or for that matter, a case of

omission due to lack of knowledge of existence of such

dues. In the present case, the Respondent was

conscious and aware of the fact that on the date of filing

of the nomination form, there were two outstanding

electricity bills in relation to two meters standing in his

name, payable to M.S.E.B. It would have been a

Civil Appeal No. 4261 of 2007 Page 19 of 40

Page 20 different matter if the Respondent was unaware of that

fact or that no such bill was ever issued by the M.S.E.B.

That is not the case of the Respondent. Thus

understood, non-disclosure about the outstanding

electricity bill in the sum of Rs. 79,200/- payable by the

Respondent to M.S.E.B. Is a substantive defect in the

affidavit. Resultantly, the nomination form filed along

with such affidavit would become tainted and for which

reason, it will have to be held that the same has been

improperly accepted within the meaning of Section

100(1)(d)(i) of the Act. Besides, the candidate has failed

to comply with the requirements of the order issued by

the Election Commission in exercise of powers under

Article 324(1) of the Constitution of India which order is

founded on the Law declared by the Apex Court in the

case of Union of India vs. Association for Democratic

Reforms (supra) and binding under Article 141 of the

Constitution, therefore, affecting his nomination as well

as the Election being void under Section 100(1)(d)(iv) of

the Act.”

18. Insofar as outstanding dues in respect of the second electricity meter

are concerned, that pertained to premises which had been let out by

the appellant to his tenants. There was no dispute that the amount

was outstanding. However, the defence of the appellant was that the

primary liability of making payment was that of the tenants. The High

Court had discarded this defence with the observations that electricity

meter stood in the name of the appellant in relation to which there

was an outstanding, which amount was payable on the date of filing of

the nomination. Even the premises where this meter had been

installed were owned by the appellant. Therefore, in law, it was the

appellant who was liable to be proceeded against for recovery of the

amount and this fact was enough justification to disclose the aforesaid

Civil Appeal No. 4261 of 2007 Page 20 of 40

Page 21 outstanding. As per the High Court, even this non-disclosure

amounted to substantive defect.

On that basis, the High Court held that non-disclosure of

these Government dues rendered the nomination paper invalid and,

therefore, it was a case of improper acceptance.

. RE – Non-disclosure of bungalow No. 866 in the name of spouse

and outstanding taxes thereof

19. Bungalow No. 866 at Badlapur in the limits of Kulgaon-Badlapur

Municipal Council stands in the name of Kamal Kishore Kathore, wife

of the appellant. At the time of filing the nomination, there were

municipal dues in the sum of Rs.3,465/-. Allegation of the first

respondent was that both the aforesaid informations were suppressed

and not disclosed in the affidavit filed by the appellant along with the

nomination form. According to him, this was crucial information

regarding immovable property owned by the appellant's wife,

suppression whereof amounted to filing a defective affidavit and such

an affidavit was no affidavit in the eyes of law.

20. Significantly, the averment of the first respondent in the election

petition that the appellant had suppressed information regarding the

aforesaid immovable property belonging to his wife was not

specifically denied by the appellant. The appellant only denied the

Civil Appeal No. 4261 of 2007 Page 21 of 40

Page 22 liability of taxes pertaining to this property, that too on the ground that

this property was required to be put to revaluation and reassessment

for the purpose of assessing the taxes and for this purpose since the

measurement of the property was undertaken to assess the taxable

value, no demand notices were issued by the municipal authority.

Even hearing regarding re-assessment took place on December 28,

2014 before the Collector and it is only after the completion of the

reassessment work the municipal authority had issued tax demand

notices.

21. In view of the aforesaid, the High Court observed that as far as the

ownership of the property in the name of the wife of the appellant is

concerned, it was a clear case of non-disclosure and the ownership

was proved even on the basis of evidence produced before the Court.

As far as non-payment of municipal dues is concerned, the High

Court noted that the appellant merely explained the circumstances in

his written statement as to why the municipal taxes in relation to that

property had not been paid. However, the municipal taxes were paid

in part on October 28, 2004, after the date of filing of nomination with

the payment of Rs.1,783/- pertaining to the year 2003-04. It would

show that the appellant was in arrears. The Court also discussed the

evidence on this aspect, namely, about the purported dispute relating

Civil Appeal No. 4261 of 2007 Page 22 of 40

Page 23 to the reassessment as set up by the appellant in his defence and has

returned a finding of fact that, in fact, there were arrears of municipal

taxes in relation to that house.

22. As far as non-disclosure of the immovable property is concerned, the

only reply given by the appellant was that there was a substantial

compliance because of the reason that the appellant in his affidavit

had disclosed the value of all the properties belonging to him and his

spouse, in the sum of Rs.11,10,000/-. The High Court, however,

found that no such case was made out in the written statement.

Moreover, in the affidavit filed by the appellant, against the column of

immovable properties, he had disclosed the properties at Badlapur

and Kulgaon, valued at Rs.11,10,000/-, shown against the column

'Self'. Thus, the valuation of the properties given in the affidavit was

of those properties which belong to the appellant and, therefore, it

was a clear case of non-disclosure of wife's property. This non-

disclosure is also taken as a material defect. Summing up the

discussion on this aspect, the High Court, in para 74, observed as

under:

“74.Insofar as the present case is concerned, as is

mentioned earlier, the fact asserted by the Petitioner is

that the Respondent has not disclosed the ownership of

his wife in relation to house No. 866/4 in the affidavit “at

all”. That allegation has remained unchallenged and

undenied. In my opinion, therefore, there is substance

in the stand taken on behalf of the Petitioner that the

Civil Appeal No. 4261 of 2007 Page 23 of 40

Page 24 affidavit filed by the Respondent along with the

nomination paper is only to do lip-service and is no

affidavit at all as is required by the mandate of law or the

order issued by the Election Commission which is

founded on the Law declared by the Apex Court. As the

affidavit filed by the Respondent along with the

nomination form suffers from this substantive defect, the

nomination of the Respondent has been improperly

accepted within the meaning of Section 100(1)(d)(i) of

the Act. Besides, the election of the Respondent was

void also on account of non-compliance of the order

passed by the Election Commission under Article 324 of

the Constitution of India, which is founded on the Law

declared by the Apex Court under Article 141 of the

Constitution of India, within the meaning of Section

100(1)(d)(iv) of the Act.”

RE – Non-disclosure of vehicle MH-05-AC-555 owned by the

appellant's wife

23. Here again, from the detailed discussion contained in the impugned

judgment of the High Court, it becomes clear that by leading requisite

and sufficient evidence, the first respondent proved that wife of the

appellant owned the aforesaid vehicle and the particulars thereof

were not disclosed. The defence of the appellant was that he had

mentioned the value thereof in his affidavit, but accepted that it was

against column 'Self' and not in the independent column of his

spouse. His defence is discussed and rejected by the High Court in

the following manner:

“89.On analysis of the pleadings, it follows that the

Respondent admits that motor vehicle in question is

owned by his wife. However, it is not his case that in the

nomination form, he has disclosed the ownership of the

said vehicle of his wife. Perhaps, the Respondent

intends to suggest that he has substantially complied

Civil Appeal No. 4261 of 2007 Page 24 of 40

Page 25 with the requirements by disclosing the ownership of

motor vehicle valued Rs.5,50,000/- and that it was

purchased against loan given by M & M Financial

Services Ltd.

90.Before we deal with the ocular evidence of the

parties, it will be useful to make reference to the details

to be disclosed by the candidate as per the prescribed

affidavit. The requirement is that the candidate should

disclose the “details of the motor vehicles” owned and

possessed by him, his wife and/or other dependent

members of his family separately. The Respondent,

however, against the said column has only mentioned

figure of Rs.5,50,000/- under the column 'Self', which

gives an impression that the Respondent himself owns

vehicle valued Rs.5,50,000/- and nothing more. No

details of the motor vehicle such as number of vehicle,

the make, the model such as economic, luxury or the

year of purchase and the like are disclosed so as to

enable the voters to assess whether the details

disclosed are correct or undervalued, including the

legitimate means and capability of the candidate to

possess such assets. As in the case of disclosure made

by the Respondent in respect of buildings, in similar

manner, the disclosure in respect of vehicle is also

incomplete, vague and misleading. The candidate

cannot get away with the explanation that he has

disclosed some amount in one of the columns as

sufficient or substantial compliance. The purpose of

disclosure of assets (movable and immovable) and

liabilities to be made by the candidate, is to educate the

voters about the complete financial status of the

candidate, which information also facilitates the voter to

assess whether the assets (movable and immovable)

declared by the candidate have been procured by him

out of his legitimate and known source of income. The

voters have a fundamental right to know and receive

such information about the candidate before they take

an informed decision to elect their candidate. As it is the

fundamental right of the voters, there is corresponding

duty on the candidate to disclose truthful and complete

information regarding the assets (movable and

immovable) as per the prescribed affidavits which forms

integral part of the nomination form.”

Civil Appeal No. 4261 of 2007 Page 25 of 40

Page 26 RE – Non-disclosure of property purchased in the name of the

firm

24. The first respondent had alleged that the appellant has a right, title

and interest in land measuring 1330 sq.mts. being Survey No. 48,

Hissa No. 9, Plot No.2 and also in land admeasuring about 1292

sq.mts. being Survey No. 48, Hissa No. 9, Plot No.3 at Mouje Kalyan,

Taluka Ambernath, District Thane. These properties are purchased in

the name of the partnership firm M/s. Padmavati Developers under

agreement of development and sale. The appellant was one of the

partners in the said firm. However, the appellant had not disclosed

his interest in the aforesaid assets in the affidavit filed along with the

nomination form. The defence of the appellant in relation to this

allegation was that he had retired from the partnership firm in the year

2003 and in his letter dated October 28, 2004 sent to the Returning

Officer, he had stated that the aforesaid two properties do not belong

to him. The High Court noted that admittedly there was no reference

about the two properties in the affidavits filed along with the

nomination form. Further, it was a common case that M/s. Padmavati

Developers was formed as a partnership firm in the year 1995, of

which the appellant was one of the partners. There was also no

dispute that the bank account was operated in the name of the said

partnership firm and appellant was one of the joint signatory. Thus,

Civil Appeal No. 4261 of 2007 Page 26 of 40

Page 27 the only aspect which needed determination was as to whether the

appellant had retired from the said partnership firm in November

2003, as claimed by him. However, from the plethora of documentary

evidence placed on record, the High Court returned a finding that

those documents clearly show that the appellant continued to remain

an active partner even after 2003 and was, in fact, a partner on the

date of filing of the nomination. Apart from various documents

revealing and establishing this fact, most important document was the

Deed of Dissolution of the partnership firm, which was dated January

11, 2005 and at the time of evidence, the appellant had admitted the

contents thereof, as well as the signatures of the three partners

appearing on that document.

The High Court summed up the decision on this aspect in the

following manner:

“124. On overall analysis of the evidence, I have

no hesitation in concluding that the Petitioner has

established the allegation that the Respondent

continued to be partner of the partnership firm

Padmavati Developers at least till December 2004. It is

also matter of record and admitted position that neither

the Respondent nor any other partner of Padmavati

Developers caused to give public notice of the

retirement of the partner or for that matter, intimation to

the Registrar of Firms till January 2005. Obviously,

intimation has been sent to the Registrar of Firms only

after the institution and service of the present Election

Petition, having realised the seriousness of the

allegation. If so, it was obligatory on the part of the

Respondent to disclose his interest in the properties

purchased in the name of the said firm.”

Civil Appeal No. 4261 of 2007 Page 27 of 40

Page 28 25. It would be pertinent to mention here that the first respondent had

alleged non-disclosure of many other assets, liabilities, etc. or

suppression of other material information in the affidavits. However,

apart from the aforesaid four non-disclosures, other allegations have

not been accepted by the High Court. We would also like to mention

at this stage itself that on all the four counts the High Court has

recorded finding of facts, which are based on the evidence produced

on record. As would be noted hereinafter, learned senior counsel

appearing for the appellant did not even attempt to argue that these

findings are wrong on facts. He only made legal submissions and his

entire endeavour was that for non-disclosure of the aforesaid

information, the High Court could not have held that the nomination

was wrongly accepted and further that since there was a substantial

compliance, there was no reason to set aside the election of the

appellant.

26. On these aspects, the High Court had framed issues No. 7 and 8,

which are as under:

“(7)Does the Petitioner proves that the Respondent's

Nomination Form is improperly accepted by the

Returning Officer”

(8)Whether on account of improper acceptance of the

nomination paper, the Election result is materially

affected?”

Civil Appeal No. 4261 of 2007 Page 28 of 40

Page 29 27. On Issue No.7, finding of the High Court is that nomination was

improperly accepted by the Returning Officer by giving the following

reasons:

“130. That takes me to the next issue as to

whether Petitioner proves that the Respondent's

nomination form is improperly accepted by the

Returning Officer? Insofar as this issue is concerned,

the Respondent may be right to the extent that the

Returning Officer cannot be faulted for having accepted

the nomination form of the Respondent. That was

required to be accepted inspite of the objection, in view

of the decision of the Apex Court in the case of PUCL

(supra) and the order issued by the Election

Commission on the basis of the Law declared in the said

Judgment. Inasmuch as, it was not open to the

Returning Officer to enquire into contentious issues

raised in this Petition in the summary enquiry at the

stage of scrutiny of nomination forms. Those matters

necessarily have to be addressed only after it is

disclosed in an enquiry upon taking evidence on the

relevant facts at the trial of the Election Petition. That

does not mean that the nomination of Respondent was

proper and lawful. As the Respondent's nomination

paper suffered from the defects already referred to in

the earlier part of this decision, it is plainly a case of

improper acceptance of his nomination paper by the

Returning Officer, covered by the rigours of Section

100(1)(d)(i) of the Act. The issue No.7 will have to be

answered accordingly.”

28. Issue No. 8 pertains to the question as to whether the election result

was materially affected because of non-disclosure of the aforesaid

information. The High Court took note of provisions of Section 100(1)

(d)(i) and (iv) and discussed the same. Thereafter, some judgments

cited by the appellant were distinguished and deciding this issue

against the appellant, the High Court concluded as under:

Civil Appeal No. 4261 of 2007 Page 29 of 40

Page 30 “137. In my opinion, it is not necessary to elaborate

on this matter beyond a point, except to observe that

when it is a case of improper acceptance of nomination

on account of invalid affidavit or no affidavit filed

therewith, which affidavit is necessarily an integral part

of the nomination form; and when that challenge

concerns the returned candidate and if upheld, it is not

necessary for the Petitioner to further plead or prove

that the result of the returned candidate has been

materially affected by such improper acceptance.

138.The avowed purpose of filing the affidavit is to

make truthful disclosure of all the relevant matters

regarding assets (movable and immovable) and

liabilities as well as criminal actions (registered, pending

or in respect of which cognizance has been taken by the

Court of competent jurisdiction or in relation to

conviction in respect of specified offences). Those are

matters which are fundamental to the accomplishment

of free and fair election. It is the fundamental right of the

voters to be informed about all matters in relation to

such details for electing candidate of their choice. Filing

of complete information and to make truthful disclosure

in respect of such matters is the duty of the candidate

who offers himself or who is nominated for election to

represent the voters from that Constituency. As the

candidate has to disclose this information on affidavit,

the solemnity of affidavit cannot be allowed to be

ridiculed by the candidates by offering incomplete

information or suppressing material information,

resulting in disinformation and misinformation to the

voters. The sanctity of disclosure to be made by the

candidate flows from the constitutional obligation.”

29. As pointed out above, there is no dispute on facts that information in

respect of the aforesaid four aspects was not disclosed by the

appellant in the affidavit filed by him along with the nomination form.

The defence and/or justification given for non-disclosing these

particulars is rightly rebuffed by the High Court. However, submission

of Mr. B. Adinarayana Rao, learned senior counsel appearing for the

Civil Appeal No. 4261 of 2007 Page 30 of 40

Page 31 appellant, was that having regard to the judgment of this Court in

G.M. Siddheshwar v. Prasanna Kumar, (2013) 4 SCC 776, the

Court was required to examine as to whether information given in the

affidavits was substantial compliance of those particulars regarding

Government dues, assets and liabilities, etc. He submitted that the

information amounted to substantial compliance. For this purpose,

his attempt was to demonstrate that insofar as electricity dues of

MSEB are concerned, there was a genuine dispute about the non-

payment; as far as ownership of bungalow No. 866 in the name of his

wife is concerned, it was added to the value of the properties

belonged to the appellant; municipal taxes in respect of this bungalow

were again subject matter of dispute; the value of the vehicle owned

by his wife was also disclosed against his own name; and as far as

properties owned by the partnership firm are concerned, the appellant

was simply a partner from which he had resigned, even when this

event occurred after the filing of the nomination form.

30. We may state, in the first instance, that the judgment in G.M.

Siddheshwar has no application insofar as the present case is

concerned. The Court was dealing with the form of affidavit that is

required to be filed along with the election petition in order to comply

with the provisions of Section 83(1) proviso of the Act. The very

Civil Appeal No. 4261 of 2007 Page 31 of 40

Page 32 maintainability of the election petition was challenged on the ground

that the affidavit furnished by the election petitioner was not in

absolute compliance with the format affidavit (Form 25). The Court,

however, upheld the view of the High Court holding that on perusal of

the affidavit, there was substantial compliance with the prescribed

format. Even when some defect was found in the verification to the

election petition, it was held that said defect is also curable and

cannot be held fatal to the maintainability of the election petition. In

the present case, we are concerned with the affidavit which a

candidate seeking election is required to file along with his nomination

form. At the same time, we proceed on the basis that if there is a

substantial compliance of the requirements contained in the said

affidavits, in the sense that there is a disclosure of required

particulars, including assets/liabilities etc., it can be treated as

adequate compliance of the provisions of the Act, Rules and Orders.

31. We have also kept in mind the following observations in G.M.

Siddheshwar, while undertaking our analysis of the issue in the

present case:

“31.The Court must make a fine balance between the

purity of the election process and the avoidance of an

election petition being a source of annoyance to the

returned candidate and his constituents. In Azhar

Hussain v. Rajiv Gandhi, 1986 Supp SCC 315 this Court

observed (in the context of summary dismissal of an

election petition): (SCC p. 324, para 12)

Civil Appeal No. 4261 of 2007 Page 32 of 40

Page 33 “12...So long as the sword of Damocles of the

election petition remains hanging an elected

member of the legislature would not feel sufficiently

free to devote his whole-hearted attention to

matters of public importance which clamour for his

attention in his capacity as an elected

representative of the constituency concerned. The

time and attention demanded by his elected office

will have to be diverted to matters pertaining to the

contest of the election petition. Instead of being

engaged in a campaign to relieve the distress of the

people in general and of the residents of his

constituency who voted him into office, and instead

of resolving their problems, he would be engaged in

campaign to establish that he has in fact been duly

executed.”

32. In view of the aforesaid, two facets of the issue, which require

consideration, are as follows:

a) Whether there is a substantial compliance in disclosing the

requisite information in the affidavits filed by the appellant along with

the nomination paper?

b) Whether non-disclosure of the information on account of

aforesaid four aspects has materially affected the result of the

election?

33. We have already discussed in detail each item of non-disclosure as

well as defence of the appellant pertaining thereto. For the reasons

recorded in detail at that stage by the High Court and stated above,

with which we agree, we are of the opinion that its finding about non-

disclosure of the information qua all the aspects is without blemish.

Civil Appeal No. 4261 of 2007 Page 33 of 40

Page 34 There is a specific format in which the information is to be given,

which was not adhered to.

34. With these remarks we proceed to deal with the first aspect.

Insofar as non-disclosure of the electricity dues is

concerned, in the given facts of the case, we are of the opinion that it

may not be a serious lapse. No doubt, the dues were outstanding, at

the same time, there was a bona fide dispute about the outstanding

dues in respect of the first electricity meter. It would have been better

on the part of the appellant to give the information along with a note

about the dispute, as suggested by the High Court, we still feel that

when the appellant nurtured belief in a bona fide manner that because

of the said dispute he is not to give the information about the

outstanding amount, as it had not become 'payable', this should not

be treated as a material lapse. Likewise, as far as the second

electricity meter is concerned, it was in the premises which was

rented out to the tenants and the dues were payable by the tenants in

the first instance. Again, in such circumstances, one can bona fide

believe that the tenants would pay the outstanding amount. No doubt,

if the tenants do not pay the amount the liability would have been that

of the owner, i.e. the appellant. However, at the time of filing the

nomination, the appellant could not presume that the tenants would

Civil Appeal No. 4261 of 2007 Page 34 of 40

Page 35 not pay the amount and, therefore, it had become his liability. Same

is the position with regard to non-payment of a sum of Rs.1,783/- as

outstanding municipal dues, where there was a genuine dispute as to

revaluation and reassessment for the purpose of assessing the taxes

was yet to be undertaken. Having said so, we may clarify that it

would depend in the facts and circumstances of each case as to

whether such a non-disclosure would amount to material lapse or not.

We are, thus, clarifying that our aforesaid observation in the facts of

the present case should not be treated as having general application.

35. Even if it is so, in respect of the aforesaid aspects, on other non-

disclosures, the case of the appellant has to fail. We find clear case

of non-disclosure of bungalow No. 866 in the name of the appellant's

wife, which is a substantial lapse. So is the case about the non-

disclosure of vehicle in the name of appellant's wife. Likewise, non-

disclosure of the appellant's interest/share in the partnership firm is a

very serious and major lapse. On all these aspects, we find that the

defence/explanation furnished by the appellant does not inspire any

confidence. It is simply an afterthought attempt to wriggle out of the

material lapse on the part of the appellant in not disclosing the

required information, which was substantial. We, therefore, are of the

view that in the affidavits given by the appellant along with the

Civil Appeal No. 4261 of 2007 Page 35 of 40

Page 36 nomination form, material information about the assets was not

disclosed and, therefore, it is not possible to accept the argument of

the appellant that information contained in the affidavits be treated as

sufficient/substantial compliance.

36. We have already reproduced above the relevant portions of

judgments in the cases of Association for Democratic Reforms and

People's Union for Civil Liberties and the guidelines issued by the

Election Commission pursuant thereto. A conjoint and combined

reading thereof clearly establishes that the main reason for issuing

directions by this Court and guidelines by the Election Commission

pursuant thereto is that the citizens have fundamental right under

Article 19(1)(a) of the Constitution of India to know about the

candidates contesting the elections and this is the primary reason that

casts a solemn obligation on these candidates to furnish information

regarding the criminal antecedents, educational qualifications and

assets held by the candidate, his spouse and dependent children. It

is on that basis that not only Election Commission has issued

guidelines, but also prepared formats in which the affidavits are to be

filed. As a fortiorari, it follows that if the required information as per

the said format in respect of the assets of the candidate, his wife and

dependent children is not given, it would amount to suppression/non-

disclosure.

Civil Appeal No. 4261 of 2007 Page 36 of 40

Page 37 37. It was argued that acceptance of nomination is as per Section 33 of

the Act, which contains requirement for a valid nomination. Further

Section 36(2) deals with rejection of nomination on grounds specified

therein. It was the submission of the learned senior counsel that at

the time of scrutiny of the nomination under Section 36, nomination

could be rejected only if any of the grounds stipulated in sub-section

(2) are satisfied and there cannot be any 'deemed' ground, which is

not covered by Section 36(2) of the Act. Therefore, the Returning

Officer had rightly accepted the nomination form as none of the

grounds specified in sub-section (2) of Section 36 were attracted. He

further submitted that Sections 8A, 9, 9A, 10 and 10A provide

disqualifications for Members of Parliament and State Legislature. As

per the counsel, from the scheme of the Act it can be seen that at the

time of scrutiny of nomination, all that the Returning Officer is required

to examine is as to whether the candidate suffers from any of the

disqualifications mentioned in Section 8 to 10A of the Act and as to

whether the nomination is in the form prescribed by Section 33 and

accompanied by the documents mentioned in sub-sections 2 to 7 of

Section 33 and whether it is accompanied by an affidavit prescribed

by Rule 4A and the deposit required by Section 34 of the Act. Apart

from the aforesaid, the Returning Officer is not empowered to reject

Civil Appeal No. 4261 of 2007 Page 37 of 40

Page 38 the nomination on any other ground. He argued that the right of the

Returning Officer to conduct a summary inquiry into the correctness or

otherwise of the contents of the affidavit filed along with the

nomination was expressly taken away as can be seen from the

judgment of this Court in the case of People's Union for Civil

Liberties. Having noted that the Returning Officer has no power to

reject a nomination where false information is furnished or material

information is suppressed, the Election Commission of India and

Union of India have requested this Court to treat the same as equal to

a blank affidavit, as noted in the case of Resurgence India.

It is difficult to accept the aforesaid submissions of the

learned senior counsel as that would amount to nullifying the effect of

the judgments as well as guidelines issued by the Election

Commission.

38. When the information is given by a candidate in the affidavit filed

along with the nomination paper and objections are raised thereto

questioning the correctness of the information or alleging that there is

non-disclosure of certain important information, it may not be possible

for the returning officer at that time to conduct a detailed examination.

Summary enquiry may not suffice. Present case is itself an example

which loudly demonstrates this. At the same time, it would not be

Civil Appeal No. 4261 of 2007 Page 38 of 40

Page 39 possible for the Returning Officer to reject the nomination for want of

verification about the allegations made by the objector. In such a

case, when ultimately it is proved that it was a case of non-disclosure

and either the affidavit was false or it did not contain complete

information leading to suppression, it can be held at that stage that

the nomination was improperly accepted. Ms. Meenakshi Arora,

learned senior counsel appearing for the Election Commission, right

argued that such an enquiry can be only at a later stage and the

appropriate stage would be in an election petition as in the instant

case, when the election is challenged. The grounds stated in Section

36(2) are those which can be examined there and then and on that

basis the Returning Officer would be in a position to reject the

nomination. Likewise, where the blanks are left in an affidavit,

nomination can be rejected there and then. In other cases where

detailed enquiry is needed, it would depend upon the outcome

thereof, in an election petition, as to whether the nomination was

properly accepted or it was a case of improper acceptance. Once it is

found that it was a case of improper acceptance, as there was

misinformation or suppression of material information, one can state

that question of rejection in such a case was only deferred to a later

date. When the Court gives such a finding, which would have

resulted in rejection, the effect would be same, namely, such a

Civil Appeal No. 4261 of 2007 Page 39 of 40

Page 40 candidate was not entitled to contest and the election is void.

Otherwise, it would be an anomalous situation that even when

criminal proceedings under Section 125A of the Act can be initiated

and the selected candidate is criminally prosecuted and convicted, but

the result of his election cannot be questioned. This cannot be

countenanced.

39. The upshot of the aforesaid discussion would be to hold that the

present appeal is totally devoid of any merits and is, accordingly,

dismissed.

…......................................J.

(Surinder Singh Nijjar)

…......................................J.

(A.K. Sikri)

New Delhi;

May 09, 2014.

Civil Appeal No. 4261 of 2007 Page 40 of 40