Shambhu Prasad Sharma vs Returning Officer and Others

Dhirendra Mishra, J.

Heard on I.A. No. 1.

By this application under Order 7 Rule 11 (a) & (d) of the CPC, 1908 read with Section 86(1) of the Representation of the People Act, 1951, (hereinafter referred to as ''the Act of 1951'') the respondent no. 2 has prayed for dismissal of the election petition on the ground that the petition does not disclose any cause of action and there is non - compliance of Sections 81 and 82 of the Act of 1951.

The petitioner has challenged the election of respondent No. 2 as a Member of Parliament from the Parliamentary Constituency no. 4, Korba in the general election held in the year 2009 on the ground that all other candidates including respondent no. 2, the elected candidate, did not file affidavits in Form No. 3 K-(III) showing debts and dues of the Government and thus, nomination papers filed by them were incomplete and invalid within the meaning of Section 33-A and 33-B of the Act of 1951 and their nomination was liable to be rejected during scrutiny by respondent no. 1. Respondent no. 1 vide its order dated 31st January, 2009 rejected the objection of the petitioner against accepting nomination papers of respondents no. 2 to 18.

Shri Rajeev Shrivastava, learned counsel appearing on behalf of respondent No. 2 submitted that the petitioner has failed to plead the material fact and material particulars and averments in the petition do not disclose any cause of action. The Supreme Court in the matter of Union of India (UOI) Vs. Association for Democratic Reforms and Another, ssued certain directions in paragraph - 48 of the judgement and the Commission was directed to call for information on affidavit from each candidate seeking election to Parliament or the State Legislative Assembly, as necessary part of his nomination paper furnishing therein information regarding assets (immovable, movable, bank balance etc.) of a candidate and of his/her spouse and that of the dependents, apart from other information. In compliance of the aforesaid directions, the Election Commission of India (for brevity ''the ECF) issued an order on 26-8-2002 directing every candidate that while filing nomination papers they would submit an affidavit with regard to all the 5 matters mentioned in paragraph - 48 of the Supreme Court''s order dated 2nd May, 2002. However, in view of the subsequent order of the Supreme Court passed in the matter of People''s Union for civil Liberties (PUCL) and Others Vs. Union of India (UOI) and Another, the ECI in supersession of its earlier order dated 28-6-2002 issued fresh order on 27-3-2003. From perusal of the order of the Supreme Court dated 2nd May, 2002 and the circular issued in compliance thereof, it is clear that a candidate is required to file affidavit with regard to "Liabilities, if any, particularly whether there are any over dues of any public financial institution or government dues". In the absence of any specific averment in the election petition regarding undischarged liability of public financial institution of government dues, the petition is lacking in material facts and particulars and the same does not disclose any cause of action and the petition deserves to be dismissed in limine. The petitioner has also not pleaded or filed the objection taken by him before the returning officer for rejection of nomination papers of other candidates. From perusal of the order of the returning officer dated 31st March, 2009 (Annexure - P/3) by which objection against the nomination papers of other candidates has been rejected, it is evident that the Returning Officer after examining the record found the objections factually incorrect.

The petition is also liable to be dismissed on the ground of incorrect verification, as pleadings in the petition are based on personal knowledge of the petitioner whereas, issue raised by the petitioner is to be verified only on the basis of information on record.

Lastly, it was argued that the petition is also liable to be dismissed for mis-joinder of the parties, as the petitioner has impleaded returning officer as respondent no. 1.

A specific preliminary objection has been taken on behalf of respondent no. 1 that Returning Officer cannot be arrayed as party in an election petition in view of the specific provisions u/s 82 of the Act of 1951, which deals with parties to the petition. However, the petitioner has asserted that respondent no. 1 is a necessary party and has not moved any application for deleting the name of the respondent no. 1 from the array of respondents and has only stated that the petitioner is ready to obey any order pertaining to deletion of respondent no. 1. It was further argued that annexures and documents filed by the petitioner have not been properly verified as required u/s 83(2) of the Act of 1951.

On the other hand, Shri Ram Kumar Tiwari, learned counsel appearing on behalf of the petitioner submitted that the ECI in compliance of the directions of the Supreme Court in the matter of Association for Democratic Reforms and another (judgement dated 2nd May, 2002), directed that every candidate in election while filing nomination paper shall submit an affidavit in prescribed format annexed as Schedule I. It was specifically mentioned that non - filing of affidavit in the format (Annexure-P/6) along with nomination paper would constitute contempt of the Supreme Court and returning officer shall reject the nomination paper at the time of scrutiny (Annexure - P/2, para -5). Respondents No. 2 to 18 did not file affidavit in the prescribed format (Annexure - P/6). The petitioner filed an objection before the Returning Officer at he time of scrutiny on 30th March, 2009 for rejecting their nomination papers, however, objection of the petitioner was rejected vide Annexure - P/3. Acceptance of nomination papers of respondents no. 2 to 18 is contrary to the provisions of Section 100(1)(d)(i)(iv) of the Act of 1951. The only objection of the petitioner against the acceptance of nomination papers of other candidates is that they did not file affidavit in the format (Annexure - P/6) which is mandatory requirement, as per order s of the Election Commission dated 28th June, 2002 and 27th March, 2003, which were issued in compliance of the directions of the Supreme Court. It is not the allegation of the petitioner that other candidates have any undischarged liability towards public financial institution or Government loan and, therefore, objection regarding lack of material pleadings with respect to such allegations does not arise. So far as other objections regarding defect of verification of the pleadings and documents is concerned, election petition cannot be dismissed in limine only on this ground and such defects may be subsequently rectified. Even otherwise, allegations in the petition and documents annexed with the petition have been duly verified by the petitioner. The petitioner has already undertaken to delete the name of respondent no. 1 from the array of the respondents and, therefore, election petition cannot be dismissed on the ground of mis-joinder of the parties.

1 have heard learned counsel for the parties, perused the election petition and the documents annexed with this petition.

From perusal of the order of the Returning Officer (Annexure -P/3) whereby objection of the petitioner raised at the time of scrutiny of nomination papers against nomination papers filed by other candidates has been rejected, it appears that the petitioner contended before the Returning Officer that other candidates have not annexed their affidavits in form -3 (ka) (iii) apart from other objections. The Returning Officer after examination of the nomination papers observed that the candidates have filed affidavits along with their nomination papers and signed before him as per directions of the Election Commission in the prescribed Format (Annexure - 22). After scrutiny, he did not find any fact/basis which goes contrary to the directions of the Election Commission.

Referring to the direction contained in Chapter -VI (para -10.1) of handbook of the Returning Officer, it has been observed that where an affidavit has been filed, in that case, nomination paper cannot be rejected on the ground that it is incomplete or defective. The petitioner has neither pleaded nor filed objections submitted by him before the Returning Officer on 30th March, 2009 against nomination papers of other candidates. He has also not filed affidavits/nomination papers filed by the other candidates which finds reference in the order of Annexure -P/3 by which his objection has been rejected.

In Association for Democratic Reforms and another (supra), the Supreme Court held that 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. Interpreting Article 324 of the Constitution of India, it has been held that Article 324 is a reservoir of power to act for the avowed purpose of having free and fair elections. 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 enactment laws or the rules. By issuing necessary directions, the Commission can fill the vacuum till there is legislation on the subject. In para - 48 of the above judgement, it has been observed thus: -

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 dependents.

(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.

The Act of 1951 was amended vide the Representation of the People (Amendment) Ordinance, 2002 (4 of 2002), promulgated on 24-8-2002. Later on the Ordinance was replaced by the Representation of the People (Third Amendment) Act, 2002 (72 of 2002), which came into force w.e.f. 28th December, 2002 and Sections 33-A and 33 -B was inserted. Constiutional validity of Section 33-B was challenged and the Supreme Court vide its judgement dated 13th March, 2003 in the case of People''s Union For Civil Liberties (PUCL) and another (Supra), held that Section 33-B inserted in the Act of 1951 by amendment does not pass the test of Constitutionality and the same was declared invalid being violative of Article 19(1) (a) of the Constitution.

In the light of directions contained in the case of People''s Union For Civil Liberties (PUCL) and another (Supra), the Election Commission of India in Chapter V of Annexure - X of the Handbook for Returning Officers ordered in paragraphs -16 and 17 as under: -

Now, therefore, the Election Commission, in pursuance of the above referred order dated 13th March, 2003, of the Hon''ble Supreme Court and in exercise of the powers, conferred on it by Article 324 of the Constitution, of superintendence, direction and control, inter alia, of conduct of elections to Parliament and State Legislatures, hereby issues, in supersession of its earlier order dated 28th June, 2002, its revised directions as follows: - (1) Every Candidate at the time of filing his nomination paper for any election to the Council of Sates, House of the People, Legislative Assembly of a State or the Legislative Council of a State having such a council, shall furnish full and complete information in regard to the matters specified by the Hob''ble Supreme Court and quoted in paras 13 and 14 above, in an affidavit, the format whereof is annexed hereto as Annexure -1 to this order. (2) The said affidavit by each candidates shall be duly sworn before a Magistrate of the Fist Class or a Notary Public or a Commissioner of Oaths appointed by the High Court of the State concerned.

(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 nominations for such non - furnishing of the affidavit.

(4) The information so furnished by each candidate in the aforesaid affidavit shall be disseminated by the respective Returning Officers by displaying a copy of the affidavit on the notice board of his office and also by making the copies thereof available freely and liberally to all other candidates and the representatives of the print and electronic media.

(5) If any rival candidate furnishes information to the contrary, by means of a duly sworn affidavit, then such affidavit of the rival candidate shall also be disseminated along with the affidavit of the candidate concerned in the manner directed above.

For the removal of doubt, it is hereby clarified I hat 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 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 in Annexure -1 hereto referred to in para 16(1) above, the candidate shall have to comply with all 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.

From perusal of the judgement of the Supreme Court in the matter of Association For Democratic Reforms and another (Supra) (Paragraph -48) and directions issued by the ECI in pursuance thereof on 28-6-2002 and 27th March 2003, it is clear that every candidate was required to file information with respect to liabilities, if any, particularly whether there are any over dues of any public financial institution or government dues in the format appended as Annexure -1 with the order dated 27th Marc, 2003 of the ECI.

From perusal of the order of Annexure - P/3, it is clear that affidavits have been sworn in by respondents No. 2 to 18 and the returning officer did not find any defects in the affidavits as per orders/ directions of the Election Commission, on the basis of which their nomination papers could be rejected. Disclosures about undischarged liability towards public financial institutions or Government loan, if any, are to be made in the format enclosed with the order dated 27th March, 2003 of the ECI.

Form perusal of Annexure-P/3, I have also observed that returning officer rejected the objection of the petitioner and accepted the nomination papers of other candidates as valid by observing that necessary affidavits in the prescribed format have been submitted by them. The petitioner has not filed affidavits of other candidates and it is not the allegation of the petitioner that respondents No.2 to 18 have any undischarged liability towards public financial institutions or any Government loan. In the absence of any material fact to establish that other candidates did not file necessary affidavit in format Annexure -1 appended with the order dated 27th March, 2003, and keeping in view the order of Annexure P/3, which reveals that other candidates had submitted affidavits in the prescribed format as per guidance of the ECI, I find substance in the argument of learned counsel for respondent No. 2 that even if the entire allegations present in the petition is accepted, the same does not disclose any cause of action to the petitioner and there is no triable issue before this Court for adjudication of this election petition.

The only ground urged in the election is that respondent no. 2 to 18 did not submit necessary information on affidavit in the prescribed format as per para 3(A) of Annexure -1 annexed with the order dated 27th March, 2003 of the ECI. The affidavits filed by other candidates have not been annexed with the petition nor there is any specific pleading in this regard. Respondent no. 2 in his return, in para - 8.4, in reply to para - 5 of the petition, has specifically denied the above allegation and has specifically averred that the answering respondent has filed the affidavit as required under the law. In spite of the above specific denial of respondent No. 2, the petitioner has failed to supply necessary material particulars to establish that affidavits sworn by the other candidates were not in accordance with the requirement of the order of the ECI dated 27th March, 2003 or they were not in format of Annexure -1.

On the basis of the aforesaid discussion, I am of the opinion that the petitioner has failed to disclose all material facts on which the election petitioner relies to establish the existence of a cause of action. In the absence of the material facts and insufficient cause of action, the election petition is liable to be dismissed. It is a settled legal position that an election petition must clearly and unambiguously set out all the material facts which the petitioner is to rely upon during the trial, and it must reveal a clear and complete picture of the circumstances and should disclose a definite cause of action. In the absence of the above, an election petition can be summarily dismissed, as has been held by the Hon''ble Supreme Court in the matter of Lax mi Kant Bajpai Versus Hazi Yaqoob and others {2009 (8) Supreme 129}.

In view of the aforesaid findings, it is not necessary to consider other issues raised by the respondents.

In the result, the application is allowed. The election petition is dismissed on the ground that the petitioner has failed to disclose all material facts on which, he relies to establish the existence of a cause of action.