Narayan Das Inklab Gandhi vs Chandulal Sahu and Others

Satish K. Agnihotri, J.

I.A. No. 5

This is an application for dismissal of the election petition under the provisions of section 86 of the Representation of People Act, 1951 (for short ''the Act, 1951'') read with Order 7 Rule 11 of the Code of Civil Procedure, 1908 (for short ''CPC) filed by the respondent No. 1, the returned candidate for the Lok Sabha election held in 2009 from 09- Mahasamund Constituency, District Mahasamund, Chhattisgarh.

According to learned counsel for the return candidate/respondent No. 1 the election petition is not in accordance with the requirement as laid down u/s 83 of the Act, 1951 as the election petition does not disclose any cause of action. The election petition has been filed by the election petitioner mainly on the ground of improper acceptance of the nomination papers and secondly, the return candidate has obtained votes by corrupt practice. According to Shri Mishra, it is not a case of improper acceptance of nomination papers of the return candidate which at all materially affected the result of the election. No defect in the nomination papers has been pointed out.

In response, Shri Tiwari, learned counsel appearing for the election petitioner submits that the affidavits do not contain information regarding details of liabilities/over dues to public financial institution and government dues alongwith the nomination papers as required in Annexure A/1 to the order dated 27.03.2003 (Annexure P/16). Further, in all the affidavits, verification has also not been done as per required under form Annexure A1.

On perusal of the photo-copy of the nomination papers annexed to the petition, it appears that the return candidate has not submitted affidavit as has been submitted by the election petitioner. Contention of learned counsel for the respondent no. 1 that the requirement of the affidavit was complied with in its entirety, needs proper adjudication. Thus, it cannot be held that the election petition does not disclose any cause of action.

Section 100 of the Act, 1951 provides for grounds for declaring election to be void. Section 100(1)(c) of the Act, 1951 provides that election may be declared void if the nomination has been improperly rejected. u/s 100(1) (d) of the Act, 1951, the result of the election, in so far as it concerns a return candidate, has been materially affected by improper acceptance of any nomination or by any corrupt practice committed in the interests of the returned candidate.

It is not the case of the respondent No. 1 that the election petitioner did not comply with the provisions of section 81, 82 or 117 of the Act, 1951. Thus, without examining the evidences, witnesses, the election petition may be thrown out on the ground of lack of cause of action, as enshrined in section 100 of the Act, 1951, at the threshold.

In Samant N. Balkrishna and Another Vs. V. George Fernandez and Others, the Supreme Court held as under:

29.....Section 83 then provides that the election - petition must contain a concise statement of the material facts on which the petitioner relies and further that he must also set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice. The section is mandatory and requires first a concise statement of material fact and then requires the fullest possible particulars.

In Durai Muthuswami Vs. N. Nachiappan and Others, the Supreme Court has held as under:

3.....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 u/s 9A. 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 the election insofar as it concerns the returned candidate has been materially affected by improper acceptance of the 1st respondent''s nomination. That is the obvious conclusion to be drawn from the circumstances of this case.

In Santosh Yadav v. Narender Singh, AIR 2002 SC 741 relied on by Shri Tiwari, the Supreme Court held that there is a presumption in the case of improper rejection of a nomination paper that it has materially affected the result of the election. The fact that one of several candidates for an election was kept out of the arena is by itself a very material consideration.

In Uttamrao Shivdas Jankar Vs. Ranjitsinh Vijaysinh Mohite-Patil, , the Supreme Court observed as under:

The High court was duty bound to treat the matter on merits by framing issues and thereafter calling for production of evidence in support of their respective cases. The High Court should have examined the veracity of the rival claims based on the evidence produced by the parties and should have tested the correctness of the affidavits. The opinion of the hand writing expert in that regard would have been sufficient and on the basis of the same it could be possible for the High Court to decide the entire lis between the parties. The High Court despite being the Court of original jurisdiction acted as a court of appellate jurisdiction and dismissed the petition without allowing the parties to produce evidence in support of their contention.

The election petition contains concise and clear statement of the material fact, which is as under:

The nomination papers submitted by the returned candidate i.e. Respondent No. 1 and all other contesting respondent except that of petitioner, i.e. respondent No. 2 to 14 reveals that affidavit regarding assets and liabilities furnished by candidate alongwith nomination papers were not as prescribed by Annexure-1 of order dated 27.03.2003 issued by the Election Commission of India.

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The said affidavits do not contain information regarding details of liabilities/over dues to public financial institutions and government dues as required under para 3 of annexure A-1 of said annexure P/ 16 as in the said affidavits there is no column as per para 3 (a) (iii-a), (iii-b), (iii-c), (iii-e) and (iii-f) of said annexure A-1 which reads as:

3(a) (iii) Government dues:

(a) dues to departments dealing with government accommodation.

(b) dues to departments dealing with supply of water.

(c) dues to departments dealing with supply of electricity.

(d) dues to departments dealing with telephones

(e) dues to departments dealing with government transport (including aircrafts and helicopters)

(f) other dues, if any.

In support thereof, the petitioner had annexed the nomination papers with affidavit filed by all the candidates. The petitioner has fulfilled the requirement of section 83 of the Act, 1951. Thus, the petition cannot be dismissed at the threshold without proper adjudication of the allegations which may be possible only after examining the documents, evidences and witnesses.

The election petition contains proper and concise statement in respect of improper acceptance of the nomination paper filed by the returned candidate and in support, he has also supplied material facts by filing nomination papers and affidavits filed by the candidates including the returned candidate. Prima facie, it appears that the returned candidate has not given the complete details of his assets and liabilities. Thus, there is sufficient compliance of the provisions of Section 83 read with Section 100 of the Act, 1951. For the reasons stated hereinabove, I.A. No. 5 is rejected.