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Judgment
R.C. Khulbe, J
By way of this petition, preferred by the writ petitioner under Article 329 of the Constitution of India read with Sections 80 and 81 of the Representation of the People Act, 1950 (hereinafter to be referred as 'the Act'), the writ petitioner has sought for the following relief(s): -
A. Summon the record of the election to Uttarakhand Legislative Constituency 63-Kashipur in the General Legislative Elections-2017, and after hearing the parties herein, allow the election petition of the petitioner;
B. Declare all the proceedings of election in Legislative Constituency No.63-Kashipur from the date of scrutiny as unlawful and void;
C. To declare the election of the respondent to be void;
D. Any other order which this Court deems fit.
Facts necessary to resolve the controversy involved in this petition are that the petitioner and respondent were the candidates who had contested the elections for the Uttarakhand Legislative Assembly Elections, 2017 from 63-Kashipur Legislative Constituency in the State. The elections were held on 15.02.2017 and the result was declared on 11.03.2017, whereby the respondent was declared as the Returned Candidate. The election process had commenced with the Notification issued u/s 15(2) of the Act as per the following programme: -
Date of notification of election
20.01.2017
Last date of filing of nomination
27.01.2017
Scrutiny of nomination papers
30.01.2017
Withdrawal of nomination
01.02.2017
Date of poll, if needed
15.02.2017
Date before which the election is completed
15.03.2017
Date of declaration of result
11.03.2017
As per the election programme, the date of scrutiny was 30.01.2017. Petitioner filed his objections by way of affidavit for rejecting the nomination papers of the respondent. However, the Returning Officer accepted the nomination paper of the respondent. The last date for withdrawal of nominations was 01.02.2017 and after the said date, there were total of 11 contesting candidates including the petitioner and respondent. Thus, 11.03.2017 was the date on which the cause of action arose. Petitioner submitted his nomination paper on 23.01.2017.
The respondent submitted his nomination form on 27.1.2017 which is not substantially as per format of Form 2-B prescribed by the Election Commission of India. Column no.8 of the form 26 deals with the details of the assets and liabilities/dues to the public financial institutions and government. At Column (8) Sl No.(ii) at Row Nos.10 and 11, details of sales tax dues or any other dues are required to be furnished by a candidate. The respondent, in the said column, has shown his liability as zero/Nil, i.e. according to the respondent, no sales tax or other dues are pending against his name towards the government. Moreover, according to the petitioner, the respondent has made false and contradictory averments regarding his age and date of birth. In his nomination paper dated 27.1.2017, the respondent has shown his age as 70 years while in the voter list of the Assembly Elections 2017, his age is shown as 72 years after correction made at the request of respondent. Further, in the PAN card issued by the Income Tax Department, the age of respondent is shown as 72 years while in the passport, it is shown as 70 years.
The petitioner has also averred that the respondent has sworn false affidavit as prescribed under the Act. It is also stated that the respondent has made contradictory averments about his age and date of birth. The petitioner filed his objections to the nomination of the respondent through his agent before the returning officer on 28.01.2017. However, those objections were rejected vide order dated 30.01.2017. Thus, challenging the entire election proceedings, the present election petition has been filed.
The respondent has filed his written statement to the averments made in the body of petition, thereby, he has denied most of the averments. It is stated that the affidavits sworn by him are in accordance with law and the same has proper attestation, and that there is no defect in the petitioner's nomination form. It is lastly stated that the petitioner himself furnished false information to the Election Commissioner, and it is also stated that the petition has been filed with ill-intention and ulterior motives and thus, it has been prayed for dismissal of writ petition with heavy costs.
During pendency of this petition, this Court, vide order dated 07.12.2020, after hearing learned Counsel for the parties, framed the following issues for adjudication of this election petition: -
A. "Whether the declaration by respondent no.4 in Form 26 dated 27.01.2017 with respect to his age submitted alongwith his nomination papers is correct, if not, its effect on his election?
B. Whether the declaration by respondent no.4 in column no.8 Sl. No. 10 & 11 of the affidavit in Form 26 dated 27.01.2017 submitted alongwith his nomination papers with respect to the liabilities / dues to the Public Financial institution is correct, if not, its effect on his election?"
When the matter came up for hearing before this Court, on 07.09.2021, learned Counsel for the petitioner prayed for not pressing the Issue No.1. Accordingly, on his request, the issue no.1 was not pressed and an endorsement to this effect was also made by Mr. Rahul Consul, learned counsel in the order-sheet of the Court. Accordingly, Issue No.1 is decided against the election petitioner.
Now, the Court is required to adjudicate the Issue No.2 which deals with the issue whether the declaration made by respondent in the affidavit in Form 26 regarding his liabilities/dues to the Public Finance Institution is correct, and if not, would it cause any effect on his election?
The Court has heard learned counsel for both the parties at length and carefully perused the entire documents available in the file of the Court.
In order to prove his case, petitioner-Rajeev Kumar Aggarwal was examined as PW1 before the Court; his evidence was recorded on 07.09.2021. In oral evidence, he also produced PW2 Jasveer Singh Narula in his support, whose evidence was also recorded before the Court on the same day i.e. on 07.09.2021. No other witness was produced and accordingly the evidence of petitioner was closed.
After recording the evidence of petitioner and his witness, statement of respondent- Harbhajan Singh Cheema was recorded as DW1. His evidence was recorded on 09.09.2021 before the Court. However, no other witness in his support was produced by DW1.
At the request of learned Counsel for both the parties, the evidence of both the parties was closed.
It is an admitted fact that the elections for the Uttarakhand Legislative Assembly 2017 were held as per Election Programme mentioned hereinabove.
The petitioner and the respondent filed their nomination papers for the Kashipur Legislative Constituency. The petitioner filed objections for rejecting the nomination papers of the respondent. The Returning Officer accepted the nomination papers of the respondent. The respondent secured the majority and was duly elected as Member of Legislative Assembly from 63-Kashipur Constituency.
It is the only allegation that the respondent did not submit the correct information in his nomination paper regarding sales tax dues and other dues in column no.8 serial no.(ii) at row no.10 and 11 wherein the respondent has shown his liability as 'nil'. Meaning thereby, as per his statement, there are no Sales Tax and other dues outstanding towards the Government. While as per the document obtained under Right to Information Act, 2005, there are outstanding dues against the respondent but he concealed this fact in the nomination paper. Accordingly, the election of the 'returned candidate' (respondent) is liable to be void.
During the course of the arguments, learned counsel for the petitioner argued that in the year 2002, the respondent submitted his qualification as Bachelor of Arts (B.A.) while in the nomination paper submitted during election of 2017, he mentioned his qualification as High School.
From a perusal of the petition, it is evident that the petitioner did not say anything in his petition regarding the educational qualification of the respondent mentioned in the Legislative Assembly Election 2017.
Section 33 of the Representation of the People Act, 1951 deals with presentation of nomination paper and requirements for a valid nomination, whereas, Section 33A of the Act deals with Right to Information. For the sake of convenience, Section 33A reads 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.]"
Section 36 of the Act deals with the Scrutiny of nomination, while, Section 80A of the Act vests power upon the High Court to try an election petition within its jurisdiction. The procedure before the High Court for trying an election petition has been envisaged under Section 87 of the Act, which reads as under:-
"87. Procedure before the High Court.-(1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits:
Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.
(2) The provisions of the Indian Evidence Act, 1872 (1 of 1972), shall, subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition.]"
From a perusal of above-quoted Section 87(2) of the Act, it is clear that the provisions of Indian Evidence Act, 1872 will apply in all respects to the trial of an election petition.
The High Court can declare the election of the returned candidate void on the following grounds as enshrined under Section 100 of the Act. Section 100 of the Act reads as under:-
"100. Grounds for declaring election to be void.-[(1) Subject to the provisions of sub-section (2) 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 [or the Government of Union Territories Act, 1963 (20 of 1963)]; or
(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 [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 [the High Court], a returned candidate has been guilty by an agent other than his election agent, of any corrupt practice but [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 [without the consent], of the candidate or his election agent;
(c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and
(d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then [the High Court] may decide that the election of the returned candidate is not void."
From a perusal of the document, it is clear that respondent-Harbhajan Singh Cheema submitted his nomination paper before the Returning Officer for Uttarakhand Legislative Constituency 63-Kashipur in the General Legislative Elections-2017; the nomination paper is annexed as Annexure-3 to the petition.
In the nomination paper, Column no.8 relates to the liabilities in which the liability regarding Sales Tax is mentioned at Serial No.(ii).
Admittedly, the respondent has mentioned his dues as zero/'Nil' in the said column.
It is the only allegation that the respondent did not mention correct fact(s) about his liabilities towards the sales tax, whereas, as per the information obtained under the Right to Information Act, a sum of Rs.10,45,129.00 is shown due against the respondent for the financial year 1990-91, Rs.14,73,734/- have been shown due for the financial year 1991-92 and further, a sum of Rs.21,09,873.00 was shown due for the financial year 1991-92 against M/s Cheema Papers Mill. The said information obtained under the R.T.I. Act, is enclosed as Annexure-4 to the petition (Paper Nos.116 and 117).
Respondent- Harbhajan Singh Cheema, while appearing as DW1 in the Court, clearly deposed in his evidence that he did not receive any notice, personally, from any Department or Bank with respect to the liabilities till 2017.
In so far as the information obtained under R.T.I. Act is concerned, which is enclosed as Annexure-4 (Paper No.116 and 117), the petitioner, who appeared as PW1 before the Court, has stated in his evidence that the above information was not actually obtained by him nor did he receive the said information from the concerned department.
From the perusal of the above document (Annexure-4), it appears that the above information was given by the concerned department to one Nadeemuddin under R.T.I. Act. The petitioner-Rajeev Kumar Aggarwal clearly admitted this fact in his statement that the above document was not received by him from Nadeemuddin. It is thus apparent that neither any application was moved by the petitioner before the Commercial Tax Department nor the said information was supplied to the petitioner by the above-named Department. Apart from that, the above documents are neither in the form of original nor in the form of certified copy. Those are simply the photostat copies. Even the petitioner did not produce Nadeemuddin in the witness box to prove the above document (Annexure No.4). Accordingly, the above document cannot be read as evidence in the present petition.
Further, the respondent has clearly deposed in his statement that he never received any notice from the concerned department nor the bank regarding liabilities towards him. The above document (Annexure-4, Paper No.116 and 117) are not related to the respondent. The liabilities as shown relate to M/s Cheema Papers Mill. Moreover, there is no evidence on record regarding receipt of notice by the respondent pertaining to the any liability due either towards Commercial Tax Department or the Bank. Further, there is even no document on record to divulge the fact of existence of any individual liability upon the respondent.
It is the argument of learned counsel for the petitioner that since the respondent has concealed the material fact i.e. his legal liabilities, accordingly, the election of the returned candidate deserves to be declared as void on the ground of Section 100(1)(d) of the Act. It is further argued that the Returning Officer committed a mistake in accepting the nomination paper submitted by the respondent. The petitioner had filed the objections before the Returning Officer but the latter did not thoroughly peruse the objections and rejected the same in a cursory manner.
From a perusal of the document (Annexure No.4, Paper Nos.116 and 117), it is clear that the petitioner neither filed the original copy of document nor the certified copy regarding the tax liabilities. Even he did not produce Nadeemuddin before the Court to prove the genuineness of the document. The information relates to the Financial Years 1990 to 1992, but the respondent submitted his nomination paper in the year 2017. Even the petitioner did not produce any Officer/official of the concerned Department to prove the document. Although those dues, as per Annexure No.4, relate to M/s Cheema Papers Mill, however, there is no such document on record to prove the fact that there was any personal liability of the respondent for non-payment of dues. The respondent in this regard has stated in unequivocal terms that he never received any notice from any Bank or sales tax department in his personal capacity.
On a perusal of the order dated 30.01.2017 passed by the Returning Officer related to the election of 63-Kashipur Legislative Assembly, it is clear that the Returning Officer had thoroughly heard the parties and also perused the entire record submitted before him and only thereafter, he passed the impugned order which is in accordance with law.
On a considerate analysis of the entire facts and circumstances of the case, and in view of the discussion made by this Court, hereinabove, I am of the considered view that no illegality or perversity is committed by the Returning Officer in passing the order dated 30.01.2017.
The petitioner, in his petition, has failed to prove any of the grounds, as enumerated in Section 100 of the Representation of the People Act, 1951, which could materially affect the result of election of the returned candidate i.e. the respondent herein. As a result, the Issue no.2 is also decided against the election petitioner.
Consequently, the present election petition is liable to be dismissed and the same is dismissed. However, in the facts and circumstances of the case, the parties shall bear their own costs.