Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 2649 of 2016

SRI MAIREMBAM PRITHVIRAJ @ PRITHVIRAJ SINGH

.... Appellant(s)

Versus

SHRI PUKHREM SHARATCHANDRA SINGH

….Respondent(s)

With

CIVIL APPEAL No. 2829 of 2016

PUKHREM SHARATCHANDRA SINGH

.... Appellant(s)

Versus

SRI MAIREMBAM PRITHVIRAJ @ PRITHVIRAJ SINGH

….Respondent(s)

J U D G M E N T

L. NAGESWARA RAO, J.

CIVIL APPEAL No. 2649 of 2016

1

Page 2 The Appellant has filed this appeal aggrieved by the

judgment of the High Court of Manipur at Imphal by which

his election to the Manipur Legislative Assembly from

Moirang Assembly constituency was declared as void.

2.A Notification was issued for election to the 10

th

Manipur Legislative Assembly on 04.01.2012. The

Appellant belonging to the Nationalist Congress Party (NCP)

and the Respondent who was sponsored by the Indian

National Congress (INC) filed their nominations within the

time prescribed. There was no other nomination filed. The

Respondent objected to the nomination of the Appellant at

the time of scrutiny on the ground that a false declaration

relating to educational qualification was made by the

Appellant. The Returning Officer directed the Appellant to

submit documents in proof of his educational qualification

as declared in the affidavit filed under Form 26. The

Appellant failed to produce any document to prove his

educational qualification in spite of which the Returning

Officer accepted the nomination of the Appellant. Polling

took place on 28.01.2012 and the counting of votes was

2

Page 3 held on 06.03.2012. The result was declared on the same

day. The Appellant secured 14,521 votes and the

Respondent secured 13,363 votes. The Appellant was

declared elected as MLA, Moirang Constituency.

3.The Respondent challenged the election of the

Appellant by filing an election petition in the Guwahati High

Court seeking a declaration that the Appellant’s election

was null and void, that the Respondent should be declared

as duly elected and that a criminal proceeding should be

directed to be initiated against the Appellant under Section

125-A and 127 of the Representation of the People Act,

1951 (hereinafter referred to as ‘the Act’). Apart from the

ground of improper acceptance of nomination, the

Respondent also alleged corrupt practices against the

Appellant.

4.The Appellant denied the allegation of false

declaration. According to the Appellant, the declaration

made by him that he passed Master of Business

Administration (MBA) in 2004 from Mysore University was a

clerical error. The Respondent abandoned the allegation of

3

Page 4 corrupt practices and other electoral malpractices during

the trial of the election petition in the High Court. The

High Court framed six issues which are as follows:

i)“Whether the Returning Officer of 27

th

Moirang AC

has illegally accepted the nomination paper of the

respondent or not?

ii)Whether the election of the respondent had been

materially affected by the acceptance of the

nomination paper of the respondent by the R.O. of

27

th

Moirang A/C or not?

iii)Whether the respondent had filed false affidavit in

respect of the highest education qualification in

the Form, in which the respondent had mentioned

“MBA Mysore University” or whether it was

merely a clerical error?

iv)Whether the petition lacks material facts or not?

v)Whether the election petition is liable to be

dismissed for not putting the words “attested to be

true copy of the petition” on each and every page

of the petition by the petitioner himself or not; or

on any of the defects raised by the respondent in

his written statement?

vi)Whether the petitioner is entitled to the relief

claimed in the writ petition?”

5.Issue No. 5 pertains to attestation of the petition not

being made properly. The objection raised by the Appellant

to the maintainability of the election petition was that only

4

Page 5 the front page of the election petition had the words

“Attested to be true copy.” Issue No. 5 was answered in

favour of the Respondent. The High Court considered the

main controversy pertaining to the filing of false affidavit

regarding the educational qualification by the Appellant in a

detailed manner. There is no doubt that the Appellant filed

Form 26 in which he mentioned his educational

qualification as MBA from Mysore University in 2004. After

careful consideration of the material on record and various

judgments cited by the parties, the High Court concluded

that the declaration made by the Appellant in Form 26

about his educational qualification as MBA from Mysore

University was false. The plea of the Appellant that the

defect in Form 26 was due to a clerical error was rejected.

The contention of the Appellant that providing wrong

information about the educational qualification was not a

defect of substantial character was also rejected. The

Appellant contended that the Respondent failed to plead

and prove that the result was ‘materially affected’ as

required under Section 100 (1) (d) of the Act. The High

5

Page 6 Court did not accept the said contention on the ground that

there were only two candidates in the fray in which case it

was not necessary to prove that the result of election of the

returned candidate was materially affected. The High Court

further held if it is found that the Appellant’s nomination

was improperly accepted, the result of his election stood

automatically affected materially. The High Court on the

basis of the above reasons declared the election of the

Appellant as void. The Appellant has filed this appeal

challenging the same.

6.We have heard Mr. V. Giri, learned Senior Counsel for

the Appellant and Ms. Meenakshi Arora, learned Senior

Counsel for the Respondent. Mr. Giri submitted that the

declaration pertaining to the educational qualification of the

Appellant was merely a clerical error and cannot be termed

as a false declaration. In any event, the declaration of

educational qualification is not a defect of substantial

nature warranting rejection of his nomination. Mr. Giri

also submitted that the election petition was filed under

Section 100 (1) (d) (i) and (iv) of the Act. He stated that

6

Page 7 there is neither pleading nor proof in the election petition

that the improper acceptance of the Appellant’s nomination

had materially affected the result. According to Mr. Giri,

the Appellant’s election cannot be set aside on the ground of

improper acceptance of his nomination without the

requirement of Section 100 (1) (d) of the Act being satisfied.

He referred to Durai Muthuswami v. N. Nachiappan and

Ors. reported in 1973 (2) SCC 45 and submitted that the

said judgment should be restricted to the facts of that case.

He also attempted to distinguish the said judgment as not

applicable to the facts of this case by submitting that it was

a case of disqualification under Section 9-A of the Act. He

further submitted that the said case was one filed under

Section 100 (1) (a) of the Act. He contended that there is no

need for pleading or proving that the result was materially

affected if the election is challenged under Section 100 (1)

(a) to (c) whereas it is compulsory in a petition filed under

Section 100 (1) (d).

7.Ms. Meenakshi Arora, learned Senior Counsel, argued

that the Respondent pleaded in the election petition that the

7

Page 8 result of the election was materially affected by the

improper acceptance of the nomination of the Appellant.

She took us through the pleadings and evidence, both oral

and documentary, to contend that the declaration of

educational qualification by the Appellant was not a

mistake. She submitted that the same declaration was

made by the Appellant even when he contested the earlier

election to the Legislative Assembly in 2008. She also

highlighted the contradictory stands relating to the

declaration taken by the Appellant. She submitted that it

was not necessary to show that the result of the election

was materially affected when there were only two contesting

candidates for one seat. She relied upon the judgment in

Durai Muthuswami (supra) which according to her, was

approved in Jagjit Singh v. Dharam Pal Singh , reported

in 1995 Supp (1) SCC 422. She further relied upon Union

of India v. Association for Democratic Reforms,

reported in 2002 (5) SCC 294, People’s Union for Civil

Liberties (PUCL) v. Union of India, reported in 2003 (4)

SCC 399, Kisan Shankar Kathore v. Arun Dattatray

8

Page 9 Sawant reported in 2014 (14) SCC 162 and Resurgence

India v. Election Commission of India and Anr. reported

in 2014 (14) SCC 189 in support of her submission that a

voter has a right to know about the educational

qualification of the candidate and any false or

mis-declaration would result in rejection of the nomination

of the candidate. Ms. Meenakshi Arora also cited Hari

Krishna Lal v. Babu Lal Marandi reported in 2003 (8)

SCC 613 to contend that the false declaration relating to

the educational qualification of a candidate is a defect of

substantial character.

8.Two issues fall for our consideration in this appeal

which are:

(a)Whether a false declaration relating to the

educational qualification is a defect of substantial

character warranting rejection of a nomination?

(b)Whether it is necessary to plead and prove that the

result was materially affected when the nomination

of the returned candidate was found to have been

improperly accepted, moreso, when there are only

two candidates contesting the election?

9

Page 10 9. Chapter I of Part V of the Act deals with the

nomination of candidates. Section 33 of the Act provides for

presentation of nomination paper and requirements of a

valid nomination. A nomination paper complete in the

prescribed form, signed by a candidate and by an elector of

the constituency as proposer should be delivered to the

Returning Officer within the prescribed period. Section

33-A which was inserted by Act 72 of 2002 with effect from

24.08.2002 contemplates that a candidate has to provide

additional information, apart from the information provided

by him under Section 33 (1). The information mentioned in

Section 33-A relates to the criminal antecedents of a

candidate. Section 36 deals with scrutiny of nomination.

Section 36(4) which is relevant for adjudication of this case

is as follows:

“36. Scrutiny of nomination. – (4) The Returning

Officer shall not reject any nomination paper on the

ground of any defect which is not of a substantial

character.”

10

Page 11 10.Rule 4 (A) of the Conduct of Election Rules, 1961

which was inserted with effect from 03.09.2002 reads as

under:

“[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 subsection (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.]”

11.A candidate has to file an affidavit along with his

nomination paper as prescribed in Form 26 in which one of

the columns pertains to the educational qualification.

Grounds for declaring the election to be void are provided in

Section 100 of the Act which is as under:

“100. Grounds for declaring election to be

void.—

[(1) Subject to the provisions of sub-section (2) if 3

[the High Court] is of opinion—

(a) that on the date of his election a returned

candidate was not qualified, or was

disqualified, to be chosen to fill the seat under

the Constitution or this Act 9 [or the Government

of Union Territories Act, 1963 (20 of 1963)]; or

11

Page 12 (b) that any corrupt practice has been committed by

a returned candidate or his election agent or by

any other person with the consent of a returned

candidate or his election agent; or

(c) that any nomination has been improperly

rejected; or

(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

(ii) by any corrupt practice committed in the

interests of the returned candidate 1 [by an

agent other than his election agent], or

(iii) by the improper reception, refusal or rejection of

any vote or the reception of any vote which is

void, or

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

the Constitution or of this Act or of any rules or

orders made under this Act,

[the High Court] shall declare the election of the

returned candidate to be void.]

[(2)] If in the opinion of 2 [the High Court], a

returned candidate has been guilty by an agent, other

than his election agent, of any corrupt practice 4 ***

but 2 [the High Court] is satisfied—

(a) that no such corrupt practice was committed at

the election by the candidate or his election

agent, and every such corrupt practice was

committed contrary to the orders, and 5

12

Page 13 [without the consent], of the candidate or his

election agent;

6 * * * * *

(c) that the candidate and his election agent took

all reasonable means for preventing the

commission of corrupt 7 *** practices at the

election; and

(d)that in all other respects the election was free

from any corrupt 7 *** practice on the part of the

candidate or any of his agents,

then 2 [the High Court] may decide that the election

of the returned candidate is not void.”

12.Section 125-A prescribes penalty for filing false

affidavit which is reproduced as under:

“[125A. Penalty for filing false affidavit, etc.—

A candidate who himself or through his proposer,

with intent to be elected in an election,—

(i)fails to furnish information relating to

sub-section (1) of section 33A; or

(ii)give false information which he knows or has

reason to believe to be false; or

(iii)conceals any information, in his nomination

paper delivered under sub-section (1) of

section 33 or in his affidavit which is required

to be delivered under sub-section (2) of section

33A, as the case may be, shall,

notwithstanding anything contained in any

other law for the time being in force, be

punishable with imprisonment for a term

13

Page 14 which may extend to six months, or with fine,

or with both.]”

13.Sir Winston Churchill underlining the importance of a

voter in a democratic form of Government stated as follows:

“At the bottom of all tributes paid to democracy is

the little man, walking into a little booth, with a little

pencil, making a little cross on a little bit of paper — no

amount of rhetoric or voluminous discussion can

possibly diminish the overwhelming importance of the

point.”

14.In Union of India v. Association for Democratic

Reforms (supra) this Court held that the voter has a

fundamental right to information about the contesting

candidates. The voter has the choice to decide whether he

should cast a vote in favour of a person involved in a

criminal case. He also has a right to decide whether

holding of an educational qualification or holding of

property is relevant for electing a person to be his

representative. Pursuant to the judgment in Union of India

v. Association for Democratic Reforms (supra) Section 33-A

was inserted in the Representation of the People Act

providing for right to additional information by an

14

Page 15 Ordinance. The challenge to the said Ordinance was dealt

with by this Court in People’s Union for Civil Liberties

(PUCL) v. Union of India (supra) in which it was held as

follows:

“78. What emerges from the above discussion can be

summarised thus:

(D) The contention that as there is no specific

fundamental right conferred on a voter by any statutory

provision to know the antecedents of a candidate, the

directions given by this Court are against the statutory

provisions is, on the face of it, without any substance.

In an election petition challenging the validity of an

election of a particular candidate, the statutory

provisions would govern respective rights of the parties.

However, voters' fundamental right to know the

antecedents of a candidate is independent of statutory

rights under the election law. A voter is first citizen of

this country and apart from statutory rights, he is

having fundamental rights conferred by the

Constitution. Members of a democratic society should

be sufficiently informed so that they may cast their

votes intelligently in favour of persons who are to

govern them. Right to vote would be meaningless unless

the citizens are well informed about the antecedents of

a candidate. There can be little doubt that exposure to

public gaze and scrutiny is one of the surest means to

15

Page 16 cleanse our democratic governing system and to have

competent legislatures.”

15.It is relevant to mention that the Election Commission

of India issued a press note on 28.06.2002 in which there

was a reference to the judgment of this Court in Union of

India v. Association for Democratic Reforms in which it was

held that information on five aspects has to be provided to

the voter. One of the five aspects pertains to the

educational qualification of the candidates. An order was

issued by the Election Commission of India on 28.06.2002

directing that full and complete information relating to the

five aspects which were mentioned in the judgment has to

be furnished. Providing incomplete information or

suppression of material information on any of the five

aspects was to be treated as a defect of substantial

character by the Returning Officers.

16.In Resurgence India v. Election Commission of India

and Anr. (supra) this Court held that every candidate is

obligated to file an affidavit with relevant information with

regard to their criminal antecedents, assets and liabilities

and educational qualification. The fundamental right under

16

Page 17 Article 19 (1) (a) of the voter was reiterated in the said

judgment and it was held that filing of affidavit with blank

particulars would render the affidavit as nugatory. In

Kisan Shankar Kathore v. Arun Dattatray Sawant

reported in 2014 (14) SCC page 162 this Court considered

the question as to whether it was incumbent upon the

Appellant to have disclose the information sought for in the

nomination form and whether the non-disclosure thereof

render the nomination invalid and void. It was held that

non-furnishing of the required information would amount to

suppression/non-disclosure.

17.It is clear from the law laid down by this Court as

stated above that every voter has a fundamental right to

know about the educational qualification of a candidate. It

is also clear from the provisions of the Act, Rules and Form

26 that there is a duty cast on the candidates to give correct

information about their educational qualifications. It is not

in dispute that the Appellant did not study MBA in the

Mysore University. It is the case of the Appellant that

reference to MBA from Mysore University was a clerical

17

Page 18 error. It was contended by the Appellant that he always

thought of doing MBA by correspondence course from

Mysore University. But, actually he did not do the course.

The question which has to be decided is whether the

declaration given by him in Form 26 would amount to a

defect of substantial nature warranting rejection of his

nomination. Section 36 (4) of the Act mandates that the

Returning Officer shall not reject a nomination paper on the

ground of any defect which is not of a substantial character.

The declaration made by the Appellant in Form 26, filed in

2012 is not a clerical error as contended by him. The

Appellant contested election to the same constituency in

2008 and in the affidavit filed by him in Form 26 he

declared that he passed MBA from Mysore University in

2004. In the affidavit filed by him in this election petition

by way of examination-in-chief, the Appellant stated that

his nomination paper and the enclosed affidavit were

prepared and filed by his counsel Chakpam Bimolchandra

Singh on the instructions of his agent Ph. Shamu Singh.

He also stated that his counsel filled the prescribed affidavit

18

Page 19 in his own hand-writing. The Appellant also stated that he

signed the affidavit without reading the contents and he

came to know about the error only when the Respondent

raised his objection to the nomination. The Appellant

further stated that he was working in Projeon, Infosys

Company and IBM till 2007 and because of his job many

local friends and elders thought that he was an MBA

degree-holder. His election agent also thought that he was

holding an MBA degree due to which he instructed the

Advocate Chakpam Bimolchandra Singh to fill up column 9

of the affidavit by stating that the Appellant is an MBA

degree-holder. In his cross-examination, the Appellant

gave evasive replies to the questions relating to his

educational qualification. He stated that he does not

remember whether he had undergone MBA from Mysore

University and he does not remember whether he possesses

MBA degree. Chakpam Bimolchandra Singh who was

examined as DW-3 in his cross-examination denied having

filled up the entries in Form 26. He stated that he entered

the educational qualifications of the Appellant on the basis

19

Page 20 of instructions given by the election agent Shamu Singh. He

also stated that he was not present before the Oath

Commissioner when the Appellant signed the affidavit.

18.The contention of the Appellant that the declaration

relating to his educational qualification in the affidavit is a

clerical error cannot be accepted. It is not an error

committed once. Since 2008, the Appellant was making the

statement that he has an MBA degree. The information

provided by him in the affidavit filed in Form 26 would

amount to a false declaration. The said false declaration

cannot be said to be a defect which is not substantial. He

was given an opportunity by the Returning Officer to

produce the relevant document in support of his

declaration. At least at that point of time he should have

informed the Returning Officer that an error crept into the

declaration. He did not do so. The false declaration relating

to his educational qualification cannot be stated to be not of

a substantial character. It is no more res integra that every

candidate has to disclose his educational qualification to

subserve the right to information of the voter. Having made

20

Page 21 a false declaration relating to his educational qualification,

the Appellant cannot be permitted to contend that the

declaration is not of a substantial character. For the

reasons stated supra, we uphold the findings recorded by

the High Court that the false declaration relating to the

educational qualification made by the Appellant is

substantial in nature.

19.Having answered the first question against the

Appellant, we proceed now to deal with the next point.

Section 100 (1) (a) to (c) deals with disqualification, corrupt

practices and improper rejection of nominations respectively

which are grounds for setting aside the election. The sine

qua non for setting aside an election under Section 100 (1)

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

a returned candidate, has been materially affected. The

contention of Mr. Giri, learned Senior Counsel for the

Appellant is that even if it is held that the nomination of the

appellant was improperly accepted, his election cannot be

set aside in the absence of any pleading or proof that the

result was materially affected by the improper acceptance of

21

Page 22 the nomination. He relied upon Magani Lal Mandal v.

Bishnu Deo Bhandari, reported in 2012 (3) SCC page

314 to contend that every defect cannot be a ground for

setting aside an election under Section 100 (1) (d) without

further proof that it had materially affected the result of the

returned candidate. He also referred to Shambhu Prasad

Sharma v. Charandas Mahant and Ors. reported in 2012

(11) SCC page 390 in which it was held as follows:

“20. Coming to the allegation that other candidates had

also not submitted affidavits in proper format, rendering

the acceptance of their nomination papers improper, we

need to point out that the appellant was required to not

only allege material facts relevant to such improper

acceptance, but further assert that the election of the

returned candidate had been materially affected by such

acceptance. There is no such assertion in the election

petition. Mere improper acceptance assuming that any

such improper acceptance was supported by assertion of

material facts by the appellant-petitioner, would not

disclose a cause of action to call for trial of the election

petition on merit unless the same is alleged to have

materially affected the result of the returned candidate.”

20.There is no dispute that an election cannot be set

aside on the ground of improper acceptance of any

22

Page 23 nomination without a pleading and proof that the result of

the returned candidate was materially affected. The point

to be considered is whether the law as laid down by this

Court relating to the pleading and proof of the fact of the

result of the returned candidate being materially affected

applies to a case where the nomination of the returned

candidate is declared to have been improperly accepted. A

situation similar to the facts of this case arose for

consideration of this Court in Durai Muthuswami’s case. It

is necessary to deal with this case in detail as the Counsel

for the Appellant submitted that the said judgment is not

applicable to the facts of the present case and that finding

in the said case have to be treated as obiter.

21.The facts, in brief, of the case of Durai Muthuswami

are that the Petitioner in the election petition contested in

the election to the Tamil Nadu Legislative Assembly from

Sankarapuram constituency. He challenged the election of

the First Respondent on the grounds of improper

acceptance of nomination of the returned candidate,

rejection of 101 postal ballot papers, ineligible persons

23

Page 24 permitted to vote, voting in the name of dead persons and

double voting. The High Court dismissed the election

petition by holding that the Petitioner failed to allege and

prove that the result of the election was materially affected

by the improper acceptance of the nomination of the First

Respondent as required by Section 100 (1) (d) of the Act.

The Civil Appeal filed by the Petitioner therein was allowed

by this Court in Durai Muthuswami (supra) in which it was

held as follows:

“3. Before dealing with the question whether the

learned Judge was right in holding that he could not go

into the question whether the 1st respondent's

nomination has been improperly accepted because

there was no allegation in the election petition that the

election had been materially affected as a result of such

improper acceptance, we may look into the relevant

provisions of law. Under Section 81 of the

Representation of the People Act, 1951 an election

petition calling in question any election may be

presented on one or more of the grounds specified in

sub-section (1) of Section 100 and Section 101. It is not

necessary to refer to the rest of the section. Under

Section 83(1) (a), insofar as it is necessary for the

purpose of this case, an election petition shall contain a

24

Page 25 concise statement of the material facts on which the

petitioner relies. Under Section 100(1) if the High Court

is of opinion—

(a) that on the date of his election a returned candidate

was not qualified, or was disqualified, to be chosen to

fill the seat under the Constitution or this Act ….

(b)-(c) * * *

(d) that the result of the election, insofar as it concerns a

returned candidate, has been materially affected—

(i) by the improper acceptance of any nomination, or

(ii)-(iii) * * *

the High Court shall declare the election of the returned

candidate to be void. Therefore, what Section 100

requires is that the High Court before it declares the

election of a returned candidate is void should be of

opinion that the result of the election insofar as it

concerns a returned candidate has been materially

affected by the improper acceptance of any nomination.

Under Section 83 all that was necessary was a concise

statement of the material facts on which the petitioner

relies. That the appellant in this case has done. He has

also stated that the election is void because of the

improper acceptance of the 1st respondent's nomination

and the facts given showed that the 1st respondent

was suffering from a disqualification which will fall

under Section 9-A. That was why it was called

improper acceptance. We do not consider that in the

circumstances of this case it was necessary for the

petitioner to have also further alleged that the result of

25

Page 26 the election insofar as it concerns the returned

candidate has been materially affected by the improper

acceptance of the 1st respondent's nomination. That is

the obvious conclusion to be drawn from the

circumstances of this case. There was only one seat to

be filled and there were only two contesting candidates.

If the allegation that the 1st respondent's nomination

has been improperly accepted is accepted the

conclusion that would follow is that the appellant would

have been elected as he was the only candidate validly

nominated. There can be, therefore, no dispute that the

result of the election insofar as it concerns the returned

candidate has been materially affected by the improper

acceptance of his nomination because but for such

improper acceptance he would not have been able to

stand for the election or be declared to be elected. The

petitioner had also alleged that the election was void

because of the improper acceptance of the 1st

respondent's nomination. In the case of election to a

single-member constituency if there are more than two

candidates and the nomination of one of the defeated

candidates had been improperly accepted the question

might arise as to whether the result of the election of

the returned candidate had been materially affected by

such improper reception. In such a case the question

would arise as to what would have happened to the

votes which had been cast in favour of the defeated

26

Page 27 candidate whose nomination had been improperly

accepted if it had not been accepted. In that case it

would be necessary for the person challenging the

election not merely to allege but also to prove that the

result of the election had been materially affected by

the improper acceptance of the nomination of the other

defeated candidate. Unless he succeeds in proving that

if the votes cast in favour of the candidate whose

nomination had been improperly accepted would have

gone in the petitioner's favour and he would have got a

majority he cannot succeed in his election petition.

Section 100(1)(d)(i) deals with such a contingency. It is

not intended to provide a convenient technical plea in a

case like this where there can be no dispute at all about

the election being materially affected by the acceptance

of the improper nomination. “Materially affected” is not

a formula that has got to be specified but it is an

essential requirement that is contemplated in this

section. Law does not contemplate a mere repetition of

a formula. The learned Judge has failed to notice the

distinction between a ground on which an election can

be declared to be void and the allegations that are

necessary in an election petition in respect of such a

ground. The petitioner had stated the ground on which

the 1st respondent's election should be declared to be

void. He had also given the material facts as required

under Section 83(1)(a). We are, therefore, of opinion that

27

Page 28 the learned Judge erred in holding that it was not

competent for him to go into the question whether the

1st respondent's nomination had been improperly

accepted.” (Underlining ours)

22.It is clear from the above judgment that there is a

difference between the improper acceptance of a nomination

of a returned candidate and the improper acceptance of

nomination of any other candidate. There is also a

difference between cases where there are only two

candidates in the fray and a situation where there are more

than two candidates contesting the election. If the

nomination of a candidate other than the returned

candidate is found to have been improperly accepted, it is

essential that the election Petitioner has to plead and prove

that the votes polled in favour of such candidate would have

been polled in his favour. On the other hand, if the

improper acceptance of nomination is of the returned

candidate, there is no necessity of proof that the election

has been materially affected as the returned candidate

would not have been able to contest the election if his

nomination was not accepted. It is not necessary for the

28

Page 29 Respondent to prove that result of the election in so far as it

concerns the returned candidate has been materially

affected by the improper acceptance of his nomination as

there were only two candidates contesting the election and

if the Appellant’s nomination is declared to have been

improperly accepted, his election would have to be set aside

without any further enquiry and the only candidate left in

the fray is entitled to be declared elected. The judgment of

this Court in Durai Muthuswami (supra) was referred to in

Jagjit Singh v. Dharam Pal Singh , 1995 Supp (1) SCC

422 page 429 in which it was held as follows:

“21. The trial Judge has held that since there is no

averment in the petition that the result of the election

was materially affected by improper rejection or

acceptance of votes, it is devoid of cause of action.

We are unable to agree that the absence of such an

averment in the facts of this case is fatal. As pointed

out by this Court, there may be cases where the

obvious conclusion to be drawn from the

circumstances is that the result of the election has

been materially affected and that Section 100(1)(d) of

the Act is not intended to provide a convenient

technical plea in a case where there can be no

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Page 30 dispute at all about the result of the election being

materially affected by the alleged infirmity.

(See: Durai Muthuswami v. N. Nachiappan [(1973) 2

SCC 45 : (1974) 1 SCR 40] .) In the present case, the

appellant in the election petition has stated that he

has lost by a margin of 80 votes only. From the

various averments in the election petition it was

evident that the number of valid votes of the

appellant which are alleged to have been improperly

rejected is much more than 80. From the averments

contained in the election petition it is thus obvious if

the appellant succeeds in establishing his case as

set out in the election petition the result of this

election, insofar as it concerns the returned

candidate, would be materially affected.”

It was held by this Court in Vashist Narain Sharma v.

Dev Chandra, reported in 1955 (1) SCR 509 as under:

“9. The learned counsel for the respondents

concedes that the burden of proving that the

improper acceptance of a nomination has materially

affected the result of the election lies upon the

petitioner but he argues that the question can arise

in one of three ways:

(1) where the candidate whose nomination was

improperly accepted had secured less votes than the

difference between the returned candidate and the

candidate securing the next highest number of votes,

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Page 31 (2) where the person referred to above secured more

votes, and

(3) where the person whose nomination has been

improperly accepted is the returned candidate

himself.

It is agreed that in the first case the result of the

election is not materially affected because if all the

wasted votes are added to the votes of the

candidate securing the highest votes, it will make no

difference to the result and the returned candidate

will retain the seat. In the other two cases it is

contended that the result is materially affected. So

far as the third case is concerned it may be readily

conceded that such would be the conclusion. But we

are not prepared to hold that the mere fact that the

wasted votes are greater than the margin of votes

between the returned candidate and the candidate

securing the next highest number of votes must lead

to the necessary inference that the result of the

election has been materially affected. That is a

matter which has to be proved and the onus of

proving it lies upon the petitioner. It will not do

merely to say that all or a majority of the wasted

votes might have gone to the next highest candidate.

The casting of votes at an election depends upon a

variety of factors and it is not possible for any one to

predicate how many or which proportion of the votes

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Page 32 will go to one or the other of the candidates. While it

must be recognised that the petitioner in such a case

is confronted with a difficult situation, it is not

possible to relieve him of the duty imposed upon him

by Section 100(1)(c) and hold without evidence that

the duty has been discharged. Should the petitioner

fail to adduce satisfactory evidence to enable the

Court to find in his favour on this point, the

inevitable result would be that the Tribunal would

not interfere in his favour and would allow the

election to stand.” (Underlining ours).

This Court in Kisan Shankar Kathore v. Arun Dattatray

Sawant (supra) dealt with a situation similar to that of

this case. In that case, the election of the returned

candidate was successfully challenged on the ground of

non-disclosure of material information. The appeal filed

by the returned candidate was dismissed by this Court

by observing as follows:

“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,

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Page 33 namely, such a candidate was not entitled to

contest and the election is void.”

23.Mere finding that there has been an improper

acceptance of the nomination is not sufficient for a

declaration that the election is void under Section 100 (1)

(d). There has to be further pleading and proof that the

result of the election of the returned candidate was

materially affected. But, there would be no necessity of

any proof in the event of the nomination of a returned

candidate being declared as having been improperly

accepted, especially in a case where there are only two

candidates in the fray. If the returned candidate’s

nomination is declared to have been improperly accepted it

would mean that he could not have contested the election

and that the result of the election of the returned candidate

was materially affected need not be proved further. We do

not find substance in the submission of Mr. Giri that the

judgment in Durai Muthuswami (supra) is not applicable to

the facts of this case. The submission that Durai

Muthuswami is a case of disqualification under Section 9-A

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Page 34 of the Act and, so, it is not applicable to the facts of this

case is also not correct. As stated supra, the election

petition in that case was rejected on the ground of

non-compliance of Section 100 (1) (d). The said judgment

squarely applies to this case on all fours. We also do not

find force in the submission that the Act has to be strictly

construed and that the election cannot be declared to be

void under Section 100 (1) (d) without pleading and proof

that the result of the election was materially affected. There

is no requirement to prove that the result of the election of

the returned candidate is materially affected once his

nomination is declared to have been improperly accepted.

24.For the aforementioned reasons, the Civil Appeal is

dismissed. No costs.

Civil Appeal No. 2829 of 2016

25. This appeal is filed by the Petitioner in the election

petition challenging that part of the judgment dated

29.02.2016 of the High Court Manipur at Imphal, by which

the relief that he should be declared to be elected was

rejected. The Appellant contested the election as a

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Page 35 candidate of the Nationalist Congress Party (NCP).

Respondent No.1 was declared to have been elected on

28.01.2012. The election of the First Respondent was set

aside by the High Court in the election petition filed by the

Appellant. The Appellant also sought for a relief that he

should be declared to have been elected. Such relief was

rejected by the High Court. Hence, this appeal.

26.After the result of the election was declared on

28.01.2012, the Appellant resigned from NCP and joined

Bhartiya Janta Party (BJP). To a question posed by the

Court during the recording of his evidence, the Appellant

stated that he tendered resignation from NCP in the latter

part of 2013, that he joined BJP and he continued to be a

member of the BJP. In January, 2016, the Appellant filed

an application for amendment to the election petition. He

intended to insert additional submissions relating to his

expulsion from NCP on 23.12.2013 and the representation

made by him to the President NCP Manipur to cancel the

expulsion order. He also wanted to bring on record the fact

that his enrolment to the membership of BJP was rejected

35

Page 36 on 18.01.2016. He further stated in the application that

the order of expulsion by the NCP was revoked by an order

dated 21.01.2016.

27.The arguments in the election petition filed by the

Appellant were concluded on 25.02.2016. The High Court

recorded a finding in the impugned judgment that all the

pending miscellaneous applications were disposed of with

the consent of both sides and the election petition was to be

adjudicated on the basis of existing material on record. As

the miscellaneous application filed by the Appellant was not

considered, the High Court decided the matter on the basis

of the material on record which clearly showed that the

Appellant resigned from NCP and joined BJP. After a

careful consideration of the material on record, the High

Court refused to grant the declaration as sought by the

Appellant. The High Court held that having joined BJP, the

Appellant was not entitled for a declaration as he contested

the election in 2012 on behalf of NCP. The High Court

highlighted the fact that the Appellant will be an MLA

belonging to BJP, if declared elected after having contested

36

Page 37 the election on behalf of the NCP. Taking into account the

spirit of law as expressed in paragraph no. 2 of the 10

th

Schedule of the Constitution of India the High Court did not

grant the relief sought by the Appellant that he should be

declared elected.

28.Ms. Meenakshi Arora, learned Senior Counsel

appearing for the Appellant submitted that the 10

th

Schedule to the Constitution is not applicable to

adjudication of an election petition. She relied upon

Section 53 (2) of the Act to contend that the Appellant

should be declared as duly elected as he was the only

person remaining in the fray after the election of

respondent/returned candidate was declared void. Section

101 of the Act provides for declaration of the Petitioner to

have been duly elected if the High Court is of the opinion

that the Petitioner received majority of the valid votes.

29.According to Section 80 (A) of the Act, the High Court

will have the jurisdiction to try an election petition. It is

well settled law that the High Court hearing an election

petition is not an ‘authority’ and that it remains the High

37

Page 38 Court while trying an election petition under the Act. (See

T. Deen Dayal v. High Court of A.P. , 1997 (7) SCC

535 at page 540. This Court in Hari Shanker Jain v.

Sonia Gandhi, 2001 (8) SCC 233 at page 244 upheld the

decision of a Full Bench of the Rajasthan High Court

wherein it was decided that the jurisdiction of the High

Court to try an election petition is not by way of

constituting a special jurisdiction and conferring it upon the

High Court. It is an extension of the original jurisdiction of

the High Court to hear and decide the election disputes. It

is clear from the above judgments of this Court that the

inherent power of the High Court is not taken away when

the election disputes are adjudicated. Section 53 (2) is a

power conferred on the Returning Officer to declare a

candidate elected when the number of candidates is equal

to the number of seats to be filled. The power of the High

Court is not fettered by Section 53 (2). The High Court has

taken into consideration an anomalous situation that would

arise by a candidate belonging to one party being declared

elected after having crossed the floor. We are in agreement

38

Page 39 with the High Court and we do not intend to interfere with

the discretion exercised by the High Court.

30.For the aforesaid reasons, the Civil Appeal is

dismissed. No order as to costs.

.…............................J.

[ANIL R. DAVE]

................................J.

[L. NAGESWARA RAO]

New Delhi,

October 28, 2016

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