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REPORTABLE

 IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NO.        4847             OF     2012   (Arising out of S.L.P. (C) No.28104 of 2010

Shambhu Prasad Sharma  ...Appellant

Versus

Shri Charandas Mahant & Ors. …Respondents

J     U     D     G     M     E     N     T      

T.S.     THAKUR,     J.   

1. Leave granted.

2. This appeal arises out of an order passed by the High  

Court of Judicature of Chhattisgarh, at Bilaspur whereby  

Election Petition No.15 of 2009 filed by the appellant has  

been dismissed on the ground that the same does not  

make a concise statement of the material facts on which

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the appellant relies and hence fails to disclose a cause of  

action.  

3. Election to No.4 Korba Parliamentary Constituency in  

the State of Chhattisgarh was held as a part of the general  

elections of the year 2009. As many as twenty two  

candidates filed their nomination papers for election from  

the above constituency but with the withdrawal of  

nominations by four of such candidates, only seventeen  

candidates were left in the fray besides the appellant-

petitioner who contested as an independent candidate and  

respondent No.1 set up by the Indian National Congress  

Party. The margin of victory between respondent No.1 and  

Karuna Shukla set up by the Bhartiya Janta Party who  

emerged as his nearest rival was around 20,000 votes.  

The appellant who polled 23136 votes then filed Election  

Petition No.15 of 2009 before the High Court of  

Chhattisgarh at Bilaspur in which he sought a declaration  

about his having been elected unopposed apart from a  

declaration to the effect that the nomination papers filed  

by the remaining 17 candidates had been improperly and  

illegally accepted. The appellant’s case as set out in the

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election petition primarily was that the nomination papers  

filed by respondents 2 to 18 were incomplete for want of a  

proper affidavit required to be filed in terms of the orders  

passed by this Court in Union of India v. Association  

for Democratic Reforms and Anr. (2002) 5 SCC 294  

and the instructions issued by the Election Commission  

requiring the candidates to file such affidavits along with  

their nomination papers. The appellant alleged that while  

he had filed an affidavit in the prescribed format along with  

his nomination papers which was found to be in order by  

the Returning Officer, the nomination papers filed by the  

remaining candidates were not accompanied by the  

requisite affidavits in Form 3 ka (iii) thereby rendering the  

nomination papers incomplete, hence liable to be rejected.  

An objection to that effect appears to have been raised  

even before the Returning Officer, who examined and  

rejected the same in terms of his order dated 31st March,  

2009. The Returning Officer held that the nomination  

papers filed by all the candidates were accompanied by the  

requisite affidavits and that there was no deficiency in the  

same to justify their rejection.  The election petition

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questioned the said finding and assailed the order passed  

by the Returning Officer as being perverse. The appellant  

alleged that in terms of the order passed by this Court in  

the judgment referred to above and the directions issued  

by the Election Commission the essential information  

required to be furnished in the affidavit particularly  

whether there were any dues outstanding against the  

candidate towards any financial institution or the  

government had  not been supplied in the requisite format  

by the candidates whose nomination papers were accepted  

which was reason enough for the rejection of the  

nomination papers filed by them and declaration of the  

appellant-petitioner as having been elected unopposed to  

the Lok Sabha from that constituency.

4. The election petition was contested by the returned  

candidate by filing an application under Order VII Rule 11  

of CPC read with Section 86(1) of the Representation of  

People Act, 1951. The application alleged that the petition  

did not disclose any cause of action nor were the  

provisions of Sections 81 and 82 of the Act complied with.  

The election petition did not, according to the respondent,

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contain any averment regarding the existence of any un-

discharged liability towards any financial institution or the  

government nor were material facts stated to disclose a  

cause of action.  

5. The High Court has, in terms of the order impugned  

before us, allowed the said application and dismissed the  

election petition holding that the petition did not indeed  

disclose any cause of action and was, therefore, not  

maintainable. The High Court recorded a finding that the  

appellant had not annexed affidavits filed by other  

candidates to demonstrate how the same were not in the  

format prescribed for the purpose nor was it the case of  

the election petitioner that the respondents had any un-

discharged liability towards any financial institution or the  

government for that matter. It also relied upon the fact  

that the Returning Officer had in no uncertain terms  

recorded a finding that the requirement of filing an  

affidavit in support of nomination papers containing the  

requisite information in terms of orders passed by this  

Court had been complied with in each case and that there  

was nothing irregular or deficient in the affidavits or

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nomination papers to call for their rejection. The High  

Court noted that the returned candidate had also stoutly  

denied the allegations that the affidavit filed was not in the  

prescribed form or that there was any distortion or  

concealment of information in the same.   

6. The requirement of filing an affidavit arises from the  

decision of this Court in Union of India v. Association for  

Democratic Reforms and Anr (supra). This Court had in  

that case examined the nature and the extent of jurisdiction  

exercised by the Election Commission under Article 324 of  

the Constitution and held that the same was wide enough to  

include all powers necessary for smooth conduct of elections  

and that the word “elections”  was used in a wide sense to  

include the entire process of election which comprises  

several stages and embraces several steps in that process.  

This Court held that the Election Commission could invoke  

its power under Article 324 till the Parliament brought a  

suitable legislation on the subject. This Court recognized the  

right of the voters in this country to know about the  

particulars and antecedents of  the candidates who would  

represent them in the Parliament where laws concerning

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their liberty and property may be enacted, and declared  

that the right of freedom of speech and expression  

guaranteed under Article 19(1)(a) of the Constitution would  

include the freedom of the voter to cast his vote, for which  

purpose the voter was entitled to know everything that  

would enable him to make the right choice.  It was with that  

salutary object in mind that this Court issued directions to  

the Election Commission to call for information on affidavit  

from each one of the candidates seeking election to the  

Parliament or the State Legislatures as an essential part of  

his nomination papers 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  dependants.

(4) Liabilities, if any, particularly whether there are any  overdues of any public financial institution or  government dues.

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(5) The educational qualifications of the candidate.”

7. As a sequel to the above directions the Parliament  

amended Representation of People Act, 1951 to introduce  

Sections 33-A and 33-B with Representation of People  

(Third Amendment) Act 2002.  Section 33-A made it  

obligatory for every candidate to furnish information  

whether or not he has been 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 and whether he has been convicted of an offence  

other than those referred to in sub-section (1) or sub-

section (2) or covered in sub-section (3) of Section 8 and  

sentenced to imprisonment of one year or more.  Sub-

section (2) to Section 33-A required a candidate or his  

proposer to deliver to the Returning Officer an affidavit  

sworn by the candidate in the prescribed form along with  

nomination papers in which the information specified above  

is set out.  Section 33-B, however, purported to neutralise  

the effect of the directions issued by this Court in Union of  

India v. Association for Democratic Reforms and Anr

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(supra) and declared that no candidate shall be liable to  

disclose or furnish any information, in respect of his  

election, which is not required to be disclosed or furnished  

under the Act or the Rules made thereunder. The  

constitutional validity of the above additions to the statute  

was challenged before this Court in People’s Union For  

Civil Liberties (PUCL) and Anr. v. Union of India and  

Anr. (2003) 4 SCC 399. This Court while upholding the  

vires of Section 33-A declared Section 33-B to be  

constitutionally invalid being in violation of Article 19(1)(a)  

of the Constitution.  This Court reiterated the directions  

given in Union of India v. Association for Democratic  

Reforms and Anr (supra) and directed the Election  

Commission to issue revised instructions keeping in view the  

observations made in the judgment delivered by this Court.  

This Court also held that the order issued by the Election  

Commission relating to the disclosure of assets and liabilities  

will continue to hold good and be operative although  

direction No.4 in so far as verification of assets and liabilities  

by means of a summary enquiry and rejection of nomination  

papers on the ground of furnishing wrong information or

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suppression of material information was concerned, the  

same shall not be enforced.  In para 123 (9) this Court  

observed:

“(9) The Election Commission has to issue revised  instructions to ensure implementation of Section 33-A  subject to what is laid down in this judgment regarding  the cases in which cognizance has been taken. The  Election Commission's orders related to disclosure of  assets and liabilities will still hold good and continue to  be operative. However, Direction 4 of para 14 insofar  as verification of assets and liabilities by means of  summary enquiry and rejection of nomination paper on  the ground of furnishing wrong information or  suppressing material information should not be  enforced.”

8. Coming to the facts of the present case, the appellant  

assailed the election on the ground that the affidavits filed  

by the contesting candidates were not in the prescribed  

format.  This is evident from the averments made in para  

5 of the election petition where the appellant stated thus:

“5. That, on 31st March, 2009, the petitioner filed an  objection before the Election Officer, Korba, stating  that except the petitioner himself, the nomination  forms of the other candidates are incorrect and invalid  because the other candidates had not filed form  No.3(K)(III) affidavits showing debts/dues of the  Government.  Due to not filing the affidavit in the  required prescribed form their candidature become  invalid and deemed to be an incomplete nomination  paper within the meaning of Section 33(A) & 33 (B) of  the representation Act of the people Act, 1961 which

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reads as under, the same is enclosed with this petition  as ‘Annexure P-1’.”

9. To the same effect is para 14A of the election petition  

where the appellant has set out the grounds for setting  

aside the election of the elected candidate in the following  

words:

“A. The nomination papers filed by Respondents  No.2 to 18 were incomplete due to want of proper  affidavit whom Respondent No.1 has accepted and  committed material illegality.  Above acceptance are  contrary to Section 100(1)D(I)(N) of Representation of  People Act, 1951 hence liable to be declared improper  and illegal voter voted in their favour would not have  noted in their favour which has materially affected the  result of this petitioner.”

10. In para 14C also the appellant’s case was that the  

nomination papers could not have been accepted without an  

affidavit disclosing the outstanding government dues as  

required under the order of this Court in the case of Union  

of India v. Association for Democratic Reforms and  

Anr (supra).  Suffice it to say that the case pleaded by the  

appellant was not one of complete failure of the  

requirement of filing an affidavit in terms of the judgment of  

this Court and the instructions given by the Election

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Commission but a case where even according to the  

appellant the affidavits were not in the required format.  

11. What is significant is that the election petition did not  

make any averment leave alone disclose material facts in  

that regard suggesting that there were indeed any  

outstanding dues payable to any financial institution or the  

government by the returned candidate or any other  

candidate whose nomination papers were accepted.  The  

objection raised by the appellant was thus in the nature of  

an objection to form rather than substance of the affidavit,  

especially because it was not disputed that the affidavits  

filed by the candidates showed the outstandings to be nil.  

12. The directions issued by this Court, and those issued  

by the Election Commission make the filing of an affidavit an  

essential part of the nomination papers, so that absence of  

an affidavit may itself render a nomination paper non-est in  

the eye of law.  But where an affidavit has been filed by the  

candidate and what is pointed out is only a defect in the  

format of the affidavit or the like, the question of  

acceptance or rejection of the paper shall have to be viewed

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in the light of sub-section (4) to Section 36 of the Act which  

reads:

“36 (4): The returning officer shall not reject any  nomination paper on the ground of any defect which is  not of a substantial character.”

13. Even the instructions issued to the Returning Officers  

point out that a nomination paper shall not be rejected  

unless the defect is of a substantial character.  The  

instructions issued to the Returning Officers  in the Hand  

Book published by the Election Commission enumerates  

though not exhaustively, what can be said to be grounds for  

rejection of the nomination papers. Para 10.1 (VII) reads:

“10.1 You must reject a nomination paper, if:

xxxxxxxxx

(vii) The nomination paper is not substantially in the  prescribed form, or  

Xxxxxxxxxxx”

14. From the above it is evident that the form of the  

nomination papers is not considered sacrosanct.  What is to  

be seen is whether there is a substantial compliance of the  

requirement as to form. Every departure from the

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prescribed format cannot, therefore, be made a ground for  

rejection of the nomination paper.

15. In the case at hand, the appellant alleges that the  

affidavit did not in the prescribed format state whether the  

candidates had any outstanding liabilities qua financial  

institutions or the government.  Now a departure from the  

format may assume some importance if the appellant  

alleged that there were such outstanding liabilities which  

were concealed by the candidates. That, however, is not the  

case of the appellant. Any departure from the prescribed  

format for disclosure of information about the dues, if any,  

payable to the financial institutions or the government will  

not be of much significance, especially when the declaration  

made by the returned candidate in his affidavit clearly  

stated that no such dues were recoverable from the  

deponent.  The departure from the format was not, in the  

circumstances, of a substantial character on which the  

nomination papers of the returned candidate could be  

lawfully rejected by the returning officer.  

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16. 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.  

17. In the result this appeal fails and is hereby dismissed  

but in the circumstances without any order as to costs.  

                                ………………………………. ………J.  

(T.S. THAKUR)   

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……………………………….………J.   (GYAN SUDHA MISRA)

New Delhi July 3, 2012