Ashok Jaiswal vs Sudhir and Others

N.K. Mody, J.—Being aggrieved by the order dated 8-2-11 passed by District Judge, Indore in Election Petition No. 7/10, whereby Election Petition filed by petitioners was dismissed, present petition has been filed. Short facts of the case are that on 25-1-10 petitioner filed a petition u/s 441 of the M.P. Municipal Corporation Act, 1956, wherein election of respondent No. 1 as Councilor from Ward No. 67 was challenged. In the petition, it was alleged that in the election, petitioner was the candidate for Councilor from Ward No. 67 and submitted his nomination form as candidate of Indian National Congress. It was alleged that petitioner submitted the nomination form on 26-11-09 alongwith requisite affidavit, which was accepted by respondent No. 5 and the Symbol was allotted to the petitioner. It was alleged that respondent No. 1 also submitted his nomination form alongwith affidavit before respondent No. 1, which was accepted on 30-11-09 and respondent No. 1 was declared as candidate of Bhartiya Janta Party. In the petition, it was alleged that in the affidavit which was filed by respondent No. 1 along with nomination form was not containing the correct information. It was alleged that the facts stated in the affidavit were false. It was alleged that since the affidavit submitted by respondent No. 1 was false, therefore, petition filed by the petitioner be allowed and the election of respondent No. 1 as Councilor be quashed. By the impugned order learned Court below dismissed the petition, against which present petition has been filed.

Learned Counsel for the petitioner argued at length and submits that the impugned order passed by the learned Court below is illegal, incorrect and deserves to be set aside. It is submitted that as per Rule 24-A of M.P. Nagar Palika Nirvachan Niyam, 1994 a candidate who wants to contest the election is required to submit an affidavit. It is submitted that upon enquiry it was found that the facts stated in the affidavit which was filed by the respondent No. 1 were not correct. It is submitted that the full description of the property was not mentioned in the said affidavit. It is submitted that the tax which was payable on the property was not paid by the respondent No. 1. It is submitted that since filing of affidavit is statutory requirement for a candidate who intends to contest the election, therefore, affidavit must contain correct particulars and if it is found that the particulars mentioned in the affidavit are not correct, then the election can be challenged by way of filing election petition. It is submitted that in the facts and circumstances of the case, learned Court below committed error in dismissing the petition filed by the petitioner. It is submitted that the petition filed by the petitioner be allowed and the impugned order passed by the learned Court below be set aside.

Learned Counsels for the respondent Nos. 5 and 6 submit that no illegality has been committed by the learned Court below in dismissing the petition filed by petitioner, as this cannot be a ground for setting aside the election that the particulars stated in the affidavit alongwith nomination form are not correct. It is submitted that the petition filed by the petitioner be dismissed.

In exercise of powers conferred by Section 433 of M.P. Municipal Corporation Act, 1956, State Government has framed M.P. Municipal Corporation Election Rules (which shall be referred hereinafter as ''Rules''). In the said Rules, Rule 24-A has been inserted vide Notification No. 53, dated 18-10-95, according to which a candidate who intends to contest the election is required to declare on affidavit about his Educational Qualification, Criminal Antecedents, Assets and Liabilities. As per sub-rule (2) of Rule 24-A of the Rules if the nomination form is not supported with an affidavit as required under sub-rule (1) of Rule 24-A of the Rules the same shall be rejected. As per sub-rule (3) of Rule 24-A of the Rules Returning Officer is not authorised to make any sort on enquiry about the information submitted in the affidavit.

Part XII, Chapter 39 of the M.P. Corporation Act, 1956 deals with the election petition. Section 441B describes the grounds for declaring election to be void. According to sub-section (1) of Section 441B of the Act election of the returned candidate may be declared as void, if the Court is of the opinion that any one of the ground enumerated u/s 441B of the M.P. Municipal Corporation Act is made out. It is true that as per clause (d) of sub-section (1) of Section 441B of M.P. Municipal Corporation Act the election of returned candidate can be declared void on account of non-compliance with the provisions of the M.P. Municipal Corporation Act or of any Rules of Orders made thereunder provided that the result of the election so far as it concerns a returned candidate has been materially affected. In the present case, it is no where stated in the petition filed by the petitioner that by submission of false affidavit, election of petitioner has been materially affected. Secondly, as per sub-rule (3) of Rule 24-A of Rules no enquiry is required to be made by the Returning Officer about the information furnished in the affidavit. In the facts and circumstances of the case, even if for the sake of arguments it is assumed that the facts stated in the affidavit are not correct, then too it does not give any right to the petitioner to challenge the validity of the election. If the petitioner is aggrieved by the affidavit submitted by the returned candidate which contains false information, then the remedy lies elsewhere to get him punished. In view of this, petition filed by the petitioner has no merits and the same stands dismissed.

No order as to costs.