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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4261 OF 2007

KISAN SHANKAR KATHORE …..APPELLANT(S)

VERSUS

ARUN DATTATRAY SAWANT & ORS. …..RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

The  appellant  herein  was  the  successful  candidate  in  the  

election  of  legislative  assembly,  which  he  contested  from  56,  

Ambernath Constituency,  Thane District,  Maharashtra.   There were  

five  candidates  in  the  fray  for  which  the  elections  were  held  on  

October 13, 2004 and the results were declared on October 16, 2004.  

After he was declared elected, his election was challenged by the first  

respondent,  who is  a  voter  in  the  said  constituency.   He  filed  the  

election petition in the High Court of Judicature at Bombay stating that  

the  appellant's  nomination  had  been  improperly  accepted  by  the  

Returning Officer and the election was void due to non-compliance of  

the provisions of the Constitution of India, the Representation of the  

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People Act, 1951 (hereinafter referred to as 'the Act') as well as Rules  

and Orders framed under the said Act.

2. The election petition was filed under Section 100(1)(d)(i) and (iv) of  

the Act  on the ground that  in  the nomination form filled  in  by the  

appellant he had suppressed his dues payable to the Government,  

suppressed  the  assets  of  his  spouse  and  also  suppressed  the  

information and assets of a partnership firm of which he is a partner.  

The appellant contested the said petition.  Evidence was led.  After  

hearing the arguments, the High Court passed judgment dated August  

16, 2007 accepting the plea of the first respondent that the nomination  

form  of  the  appellant  was  defective  and  should  not  have  been  

accepted by the Returning Officer.  Thus, while allowing the election  

petition and setting aside of the election of the appellant,  the High  

Court recorded the non-disclosure on following counts:

a)  Non-disclosure  of  dues  to  Maharashtra  State  Electricity Board in respect of two service connections  held by him amounting to Rs.79,200/- and Rs.66,250/-.

b)   The  appellant  failed  to  disclose  the  ownership  of  Bungalow  No.  866  and  the  taxes  dues  thereof  amounting to Rs.3,445/- owned by his wife.

c)  The appellant failed to disclose the particulars of the  vehicle MH-05-AC-55 owned by the wife.

d)The appellant  is  guilty  of  non-disclosure of  property  owned  by  firm  Padmavati  Developers  of  which  the  appellant  is  a  partner,  which owns two plots  of  lands  measuring  1313 sq.mtrs.  and 1292 sq.mts.  in  Survey  No.  48,  Hissa  No.  9  of  Mouze  Kalyan,  Taluka  Ambarnath, District Thane, Maharashtra.

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Challenging  the  impugned  judgment,  the  present  statutory  

appeal is filed, as provided under Section 116A of the Act.

3. We may state, at the outset, that there is no dispute on facts, namely,  

the appellant had not disclosed certain informations, as found by the  

High Court and noted above, in his nomination form.  Entire dispute  

rests on the issue as to whether it was incumbent upon the appellant  

to  have  disclosed  such  an  information  and  non-disclosure  thereof  

rendered his nomination invalid and void.  The nature of information  

given by the appellant in his nomination form, on the basis of which  

the  appellant  contends  that  it  ought  to  have  been  treated  as  

substantial  compliance,  would  be  taken  note  of  later  at  the  

appropriate stage.  We deem it appropriate to state the legal position  

contained in the Act, Rules and Orders as well as the judgments of  

this  Court  in  order  to  understand  as  to  whether  there  was  a  

substantial  compliance  by  the  appellant  in  the  form of  information  

given  by  him  or  it  amounted  to  non-disclosure  of  the  material  

information warranting rejection of his nomination.   

4. Since  the  petition  filed  before  the  High  Court  was  under  Section  

100(1)(d)(i) and (iv), we first take note of these provisions, which are  

to the following effect:

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“100.  Grounds for declaring election to be void. – (1)  Subject to the provisions of sub-section (2) if the High  Court is of opinion –  

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(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

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(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.”

5. Section 100(1)(d) talks of result of election being 'materially affected'  

by  improper  acceptance,  we would  like  to  reproduce here Section  

33(1)  of  the  Act,  which  mandates  filing  of  a  nomination  paper  

completed in the prescribed form in order to constitute it to be a valid  

nomination.  It reads as under:

“33.   Presentation  of  nomination  paper  and  requirement  for  a  valid  nomination.  –  (1)   On  or  before the date appointed under clause (a) of section 30  each  candidate  shall,  either  in  person  or  by  his  proposer,  between the  hours  of  eleven o'clock  in  the  forenoon and three o'clock in the afternoon deliver to the  returning officer at the place specified in this behalf in  the notice issued under section 31 a  nomination paper  completed  in  the  prescribed  form and  signed  by  the  candidate  and  by  an  elector  of  the  constituency  as  proposer:

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6. Other relevant provisions are Sections 33A, 34, 35 and 36 of the Act,  

which are 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.”

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34.  Deposits. – (1) A candidate shall not be deemed to  be  duly  nominated  for  election  from  a  constituency  unless he deposits or causes to be deposited. –  

(a) in the case of  an election from a Parliamentary  constituency,  a  sum  of  twenty-five  thousand  rupees or where the candidate is a member of a  Scheduled  Caste or  Scheduled  Tribe,  a  sum of  twelve thousand five hundred rupees; and

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(b) in the case of  an election from an Assembly or  Council  constituency,  a  sum  of  ten  thousand  rupees or where the candidate is a member of a  Scheduled  Caste or  Scheduled  Tribe,  a  sum of  five thousand rupees:

Provided that where a candidate has been nominated by  more  than  one  nomination  paper  for  election  in  the  same constituency, not more than one deposit shall be  required of him under this sub-section.

(2)  Any sum required to be deposited under sub-section  (1) shall not be deemed to have been deposited under  that  sub-section  unless  at  the  time  of  delivery  of  the  nomination paper under sub-section (1) or, as the case  may be,  sub-section (1A) of  section 33 the candidate  has either deposited or caused to be deposited that sum  with the returning officer in cash or enclosed with the  nomination paper a receipt showing that the said sum  has  been  deposited  by  him  or  on  his  behalf  in  the  Reserve Bank of India or in a Government Treasury.

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35.  Notice of nominations and the time and place  for  their  scrutiny.  –  The  returning  officer  shall,  on  receiving the nomination paper under sub-section (1) or,  as  the  case  may  be,  sub-section  (1A)  of  section  33,  inform the person or persons delivering the same of the  date, time and place fixed for the scrutiny of nominations  and  shall  enter  on  the  nomination  paper  its  serial  number, and shall sign thereon a certificate stating the  date  on  which  and the  hour  at  which  the  nomination  paper has been delivered to him; and shall, as soon as  may  be  thereafter,  cause  to  be  affixed  in  some  conspicuous  place  in  his  office  a  notice  of  the  nomination  containing  descriptions  similar  to  those  contained in the nomination paper, both of the candidate  and of the proposer.

36.  Scrutiny of nomination. – (1) On the date fixed for  the  scrutiny  of  nominations  under  section  30,  the  candidates, their election agents, one proposer of each  candidate,  and  one  other  person  duly  authorised  in  writing  by  each  candidate  but  no  other  person,  may  attend at  such time and place as the returning officer  

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may appoint; and the returning officer shall give them all  reasonable  facilities  for  examining  the  nomination  papers  of  all  candidates  which  have  been  delivered  within the time and in the manner laid down in section  33.

(2)   The  returning  officer  shall  then  examine  the  nomination papers and shall decide all objections which  may  be  made  to  any  nomination  and  may,  either  on  such  objection  or  on  his  own  motion,  after  such  summary inquiry, if any, as he things necessary, reject  any nomination on any of the following grounds:–  

(a) that  on  the  date  fixed  for  the  scrutiny  of  nominations the candidate either is not qualified  or is disqualified for being chosen to fill the seat  under any of  the following provisions that may  be applicable, namely:–

Articles 84, 102, 173 and 191,  

Part II of this Act, and sections 4 and 14 of the  Government of Union Territories Act, 1963; or

(b) that there has been a failure to comply with any  of the provisions of section 33 or section 34; or

(c) that  the  signature  of  the  candidate  or  the  proposer  on  the  nomination  paper  is  not  genuine.

(3) Nothing  contained  in  clause  (b)  or  clause  (c)  of  sub-section  (2)  shall  be  deemed  to  authorise  the  rejection  of  the  nomination  of  any  candidate  on  the  ground  of  any  irregularity  in  respect  of  a  nomination  paper,  if  the  candidate  has  been  duly  nominated  by  means of another nomination paper in respect of which  no irregularity has been committed.

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

(5) The returning officer shall hold the scrutiny on the  date appointed in this behalf under clause (b) of section  30  and  shall  not  allow  any  adjournment  of  the  

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proceedings  except  when  such  proceedings  are  interrupted or obstructed by riot or open violence or by  causes beyond his control:

Provided that in case an objection is raised by the  returning  officer  or  is  made  by  any  other  person  the  candidate concerned may be allowed time to rebut it not  later than the next day but one following the date fixed  for  scrutiny,  and  the  returning  officer  shall  record  his  decision  on  the  date  to  which  the  proceedings  have  been adjourned.

(6) The  returning  officer  shall  endorse  on  each  nomination paper his decision accepting or rejecting the  same  and,  if  the  nomination  paper  is  rejected,  shall  record  in  writing  a  brief  statement  of  his  reasons  for  such rejection.

(7) For the purposes of this section, a certified copy of  an entry in the electoral roll for the time being in force of  a constituency shall be conclusive evidence of the fact  that the person referred to in that entry is an elector for  that constituency, unless it is proved that he is subject to  a  disqualification  mentioned  in  section  16  of  the  Representation of the People Act, 1950 (43 of 1950).

(8) Immediately  after  all  the nomination papers have  been  scrutinized  and  decisions  accepting  or  rejecting  the same have been recorded, the returning officer shall  prepare a list of validly nominated candidates, that is to  say,  candidates  whose  nominations  have  been  found  valid, and affix it to his notice board.”

7. After having taken note of the aforesaid statutory provisions, let us  

now proceed to discuss some of the important judgments of this Court  

and to cull out legal principles therefrom on the subject, which have a  

direct bearing on the issue of disclosure of information.

8. First case that needs a mention, which is a milestone and trigerred  

electoral reforms in this country, is Union of India v. Association for  

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Democratic Reforms & Anr., (2002) 5 SCC 294.  In this case, the  

Court  held  that  it  was  incumbent  upon  every  candidate,  who  is  

contesting election,  to  give information about  his  assets  and other  

affairs, which requirement is not only essential part of fair and free  

elections, inasmuch as, every voter has a right to know about these  

details  of  the  candidates,  such  a  requirement  is  also  covered  by  

freedom of speech granted under Article 19(1)(a) of the Constitution  

of India.  The summing up the entire discussion in the judgment can  

be found in the following passage:

“46.   To  sum up  the  legal  and  constitutional  position  which emerges from the aforesaid discussion, it can be  stated that:

1. The 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.

2. The  limitation  on  plenary  character  of  power  is  when Parliament or State Legislature has made a valid  law  relating  to  or  in  connection  with  elections,  the  Commission is required to act in conformity with the said  provisions.  IN case where law is silent, Article 324 is a  reservoir  of  power  to  act  for  the  avowed  purpose  of  having free and fair election.  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  enacted  laws  or  the  rules.   By  issuing  necessary  directions, the Commission can fill the vacuum till there  is legislation on the subject.  In Kanhiya Lal Omar case  (1985) 4 SCC 628 the Court construed the expression  

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“superintendence, direction and control” in Article 324(1)  and held that a direction may mean an order issued to a  particular individual or a precept which many may have  to follow and it may be a specific or a general order and  such phrase should be construed liberally empowering  the Election Commission to issue such orders.

3. The word “elections” includes the entire process of  election  which  consists  of  several  stages  and  it  embraces  many  steps,  some  of  which  may  have  an  important  bearing  on  the  process  of  choosing  a  candidate.  Fair election contemplates disclosure by the  candidate of his past including the assets held by him so  as to give a proper choice to the candidate according to  his thinking and opinion.  As stated earlier, in Common  Cause case, (1996) 2 SCC 752 the Court dealt with a  contention that elections in the country are fought with  the help of money power which is gathered from black  sources and once elected to power, it becomes easy to  collect tons of black money, which is used for retaining  power and for re-election.  If on an affidavit a candidate  is required to disclose the assets held by him at the time  of election, the voter can decide whether he could be re- elected  even in  case where he has  collected tons  of  money.

Presuming,  as  contended  by  the  learned  Senior  Counsel Mr. Ashwani Kumar, that this condition may not  be much effective for breaking a vicious circle which has  polluted  the  basic  democracy  in  the  country  as  the  amount would be unaccounted.  May be true, still  this  would have its own effect  as a step-in-aid and voters  may not  elect  law-breakers  as  law-makers  and some  flowers of democracy may blossom.

4. To maintain the purity of elections and in particular  to  bring  transparency  in  the  process  of  election,  the  Commission  can  ask  the  candidates  about  the  expenditure  incurred  by  the  political  parties  and  this  transparency in  the process of  election would include  transparency of a candidate who seeks election or re- election.  In a democracy, the electoral process has a  strategic role.  The little man of this country would have  basic  elementary  right  to  know  full  particulars  of  a  candidate who is to represent him in Parliament where  laws to bind his liberty and property may be enacted.

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5.The  right  to  get  information  in  democracy  is  recognised all throughout and it is a natural right flowing  from the concept of democracy.  At this stage, we would  refer  to  Article  19(1)  and  (2)  of  the  International  Covenant  on  Civil  and  Political  Rights,  which  is  as  under:

“(1)  Everyone shall have the right to hold opinions  without interference.

(2)   Everyone shall  have the right  to freedom of  expression;  this  right  shall  include  freedom  to  seek,   receive and impart  information and ideas of  all  kinds,   regardless of frontiers, either orally, in writing or in print,  in  the form of  art,  or  through any other  media of  his  choice.”

6. On cumulative reading of a plethora of decisions of  this Court as referred to, it is clear that if the field meant  for  legislature  and  executive  is  left  unoccupied  detrimental to the public interest, this Court would have  ample jurisdiction under Article 32 read with Articles 141  and  142  of  the  Constitution  to  issue  necessary  directions to the executive to subserve public interest.

7. Under our Constitution, Article 19(1)(a) provides for  freedom of speech and expression.  Voter's speech or  expression in case of election would include casting of  votes, that is to say, voter speaks out or expresses by  casting vote.  For this purpose, information about the  candidate to be selected is a must.  Voter's (little man –  citizen's)  right  to  know antecedents  including  criminal  past of his candidate contesting election for MP or MLA  is  much  more  fundamental  and  basic  for  survival  of  democracy.   The  little  man  may  think  over  before  making his choice of electing law-breakers as law- makers.

9. On the basis of the aforesaid discussion, this Court issued directions  

for filing affidavit and the nature of information which was to be given,  

spelling out  the same in para 48 of  the judgment,  which reads as  

under:

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“48. 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  dependants.

(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.”

10. The  judgment  in  Association  for  Democratic  Reforms  led  to  

amendment  in  the  Act  with  the  induction  of  Section  33A (already  

reproduced  above)  as  well  as  Section  33B  therein.   Election  

Commission also laid down guidelines in the year 2002.  Insofar as  

Section 33B is concerned, it  was struck down by this Court in the  

case of People's Union for Civil Liberties (PUCL) & Anr. v. Union  

of India & Anr., (2003) 4 SCC 399.

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11. In  order  to  bring  the  directions  contained  in  the  aforesaid  two  

judgments  within  the  statutory  framework,  revised  guidelines  were  

issued by the Election Commission on March 23, 2006.  In para 5 of  

these  guidelines,  para  14  of  the  judgment  in   Association  for  

Democratic Reforms is reproduced.  Likewise, para 13 takes note of  

the  directions  given  in  the  case  of  People's  Union  for  Civil   

Liberties.   In  para  15,  it  is  noted  that  the  Supreme  Court,  while  

striking down Section 33B of the Act, stated that earlier directions of  

Election Commission dated June 28, 2002 would continue to operate  

subject to the afore-mentioned directions of the Court and, therefore,  

revised  directions  had  become  necessary.   In  para  16,  these  

directions  are issued in supersession of earlier directions dated June  

28, 2002.  Paras 1 and 3 of these guidelines/directions are relevant  

for us, and, therefore, we reproduce the same as under:

“(1) Every candidate at the time of filing his nomination  paper for any election to the Council of State, House of  the  People,  Legislative  Assembly  of  a  State  of  the  Legislative  Council  of  a  State  having  such a  council,  shall furnish full  and complete information in regard to  the matters specified by the Hon'ble Supreme Court and  quoted in paras 13 and 14 above,  in  an affidavit,  the  format whereof is annexed hereto as Annexure-I to this  order.

xx xx xx

(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  nomination  such non-furnishing of the affidavit.”

Civil Appeal No. 4261 of 2007 Page 13 of 40

Page 14

12. We would also like to reproduce para 17 of these guidelines, which  

concerns the case at hand:

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

13. The meaning and scope of these guidelines came up for discussion  

before this Court in  Resurgence India  v.  Election Commission of   

India & Anr., (2013) 11 Scale 348.  That judgment was rendered in a  

writ  petition  filed  under  Article  32  of  the  Constitution  of  India  for  

issuance  of  specific  directions  to  effectuate  meaningful  

implementation  of  the  judgments  in  Association  of  Democratic   

Reforms,  People's Union for Civil Liberties and also to direct the  

Election Commission to make it compulsory for the Returning Officer  

to ensure that the affidavits filed by the contestants are complete in all  

respects and to reject the affidavits having blank particulars.   This  

petition, thus was filed taking note of the practice which had started  

Civil Appeal No. 4261 of 2007 Page 14 of 40

Page 15

prevailing,  namely,  many  candidates  were  leaving  some  of  the  

columns  blank  in  their  affidavits  thereby  omitting  to  provide  the  

required information.  As per the petitioner in that case, in such an  

eventuality  the  Returning  Officer  should  reject  the  nomination  

whereas the Union of India pleaded that it should be treated at par  

with  filing  false affidavits  and the candidate  filing  such an affidavit  

should be prosecuted under Section 125A of the Act.  The Court took  

note of the provisions of Sections 33A, 36 and 125A of the Act and  

thereafter referred to the earlier three Judge Bench judgment of this  

Court  in  Shaligram Shrivastava  v.  Naresh Singh Patel,  (2003) 2  

SCC 176, wherein the Court had discussed the power of rejecting the  

nomination paper by the Returning Officer of  a candidate filing the  

affidavit  with particulars left  blank.   The relevant  discussion in  this  

behalf  is  in  paras 15 and 16 of  the said judgment,  which read as  

under:

“15. Although,  the  grounds  of  contention  may  not  be  exactly similar to the case on hand but the reasoning  rendered in that verdict will come in aid for ariving at a  decision  in  the  given  case.   In  order  to  arrive  at  a  conclusion in that case, this Court traversed through the  objective  behind  filing  the  proforma.   The  proforma  mandated in that case was required to be filed as to the  necessary and relevant  information with regard to the  candidate in the light of Section 8 of the RP Act.  This  Court  further  held  that  at  the  time  of  scrutiny,  the  Returning Officer  is entitled to satisfy  himself  whether  the candidate is  qualified and not  disqualified,  hence,  the  Returning  Officer  was  authorized  to  seek  such  information to be furnished at the time or before scrutiny.  It was further held that if the candidate fails to furnish  

Civil Appeal No. 4261 of 2007 Page 15 of 40

Page 16

such information and also absents himself at the time of  the  scrutiny  of  the  nomination  papers,  then  he  is  obviously avoiding a statutory inquiry being conducted  by the Returning Officer under Section 36(2) of the RP  Act relating to his being not qualified or disqualified in  the light of Section 8 of the RP Act.  It is bound to result  in  defect  of  a substantial  character in the nomination.  This Court further held as under:

“17.  In the case in hand the candidate had failed to  furnish such information as sought on the proforma  given  to  him  and  had  also  failed  to  be  present  personally or through his representative at the time  of scrutiny.  The statutory duty/power of Returning  Officer  for  holding  proper  scrutiny  of  nomination  paper was rendered nugatory.  No scrutiny of the  nomination  paper  could  be  made  under  Section  36(2) of the Act in the light of Section 8 of the Act.  It certainly rendered the nomination paper suffering  from  defect  of  substantial  character  and  the  Returning Officer was within his rights in rejecting  the same.”

16. It  is  clear  that  the  Returning  Officers  derive  the  power  to  reject  the  nomination papers  on  the  ground  that  the  contents  to  be  filled  in  the  affidavits  are  essential to effectuate the intent of the provisions of the  RP  Act  and  as  a  consequence,  leaving  the  affidavit  blank will  in fact  make it  impossible for the Returning  Officer  to  verify  whether  the  candidate  is  qualified  or  disqualified which indeed will frustrate the object behind  filing  the  same.   In  concise,  this  Court  in  Shaligram  (supra) evaluated the purpose behind filing the proforma  for advancing latitude to the Returning Officers to reject  the nomination papers.”

14. The  legal  position  is,  thereafter,  summarized  in  para  27,  which  

becomes important for our purpose and, therefore, we produce the  

same hereunder:

“27.  What emerges from the above discussion can  be summarized in the form of following difections:

(i) The  voter  has  the  elementary  right  to  know  full  particulars of a candidate who is to represent him in the  

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Parliament/Assemblies and such right to get information  is universally recognized.  Thus, it is held that right to  know about the candidate is a natural right flowing from  the  concept  of  democracy  and  is  an  integral  part  of  Article 19(1)(a) of the Constitution.

(ii) The ultimate purpose of filing of affidavit along with  the nomination paper is to effectuate the fundamental  right  of  the  citizens  under  Article  19(1)(a)  of  the  Constitution of India.  The citizens are supposed to have  the  necessary  information  at  the  time  of  filing  of  nomination paper and for  that  purpose,  the Returning  Officer can very well compel a candidate to furnish the  relevant information.

(iii) Filing of affidavit with blank particulars will  render  the affidavit nugatory.

(iv) It  is  the  duty  of  the  Returning  Officer  to  check  whether the information required is fully furnished at the  time of filing of affidavit with the nomination paper since  such information is very vital for giving effect to the 'right  to know' of the citizens.  If  a candidate fails to fill  the  blanks even after the reminder by the Returning Officer,  the  nomination  paper  is  fit  to  be  rejected.   We  do  comprehend that the power of Returning Officer to reject  the nomination paper must be exercised very sparingly  but the bar should not be laid so high that the justice  itself is prejudiced.

(v) We clarify to the extent that Para 73 of  People's  Union for Civil Liberties case (supra) will not come in the  way  of  the  Returning  Officer  to  reject  the  nomination  paper when affidavit is filed with blank particulars.

(vi) The  candidate  must  take  the  minimum  effort  to  explicitly  remark  as  'NIL'  or  'Not  Applicable'  or  'Not  known' in the columns and not to leave the particulars  blank.

(vii) Filing of affidavit with blanks will be directly hit by  Section  125A(i)  of  the  RP  Act.   However,  as  the  nomination  paper  itself  is  rejected  by  the  Returning  Officer, we find no reason why the candidate must be  again  penalized  for  the  same  act  by  prosecuting  him/her.”

Civil Appeal No. 4261 of 2007 Page 17 of 40

Page 18

15. Keeping in mind the aforesaid statutory framework as well as the legal  

principles enunciated in the afore-noted judgments, we now proceed  

to  discuss  the  nature  of  information  about  which  there  was  non-

disclosure by the appellant.

RE – Non-disclosure of Government dues

16. The appellant had not disclosed, in his nomination paper/ affidavit,  

that he was in arrears in respect of two electricity meters standing in  

his name, in respect whereof electricity connection was given by the  

Maharashtra  State  Electricity  Board  (for  short,  'MSEB').   The  

outstanding  amount  in  these  two  meters  was  Rs.79,200/-  and  

Rs.66,250/- respectively.  It was proved, on the basis of evidence led  

by the respondent herein, that the aforesaid dues were outstanding  

against  these  two  electricity  connections.   The  defence  of  the  

appellant, however, was that one electricity meter, which was in his  

residential bungalow, was defective and complaints in this behalf were  

made to MSEB from time to time and because of that dispute he was  

orally advised by the officials of MSEB not to pay the amount.

17. The  High  Court  proceeded  on  the  assumption  that  there  was  a  

dispute.  However, as per the High Court that could not be a valid  

reason for not disclosing this information with a note that the matter  

Civil Appeal No. 4261 of 2007 Page 18 of 40

Page 19

was pending  review at  the hands of  MSEB.   Thereafter,  the High  

Court posed the question as to whether such non-disclosure can be  

treated as a technical defect or it is a substantive one.  As per the  

High Court, the answer could be found by adverting to the form and  

the affidavits to be filed along with the nomination form.  These forms  

required the candidates to disclose his liabilities/overdues to public  

financial  institution  and  Government  dues.   Since  MSEB  is  a  

Government  body,  the  appellant  was  supposed  to  give  this  

information.   The  High  Court  opined  that  non-disclosure  of  this  

information, which is very vital to enable the voter to form his opinion  

about  the  candidate's  antecedents,  resulted  in  misinformation  and  

disinformation thereby influencing the voters to take an uninformed  

decision.  The discussion on this aspect is summed up by the High  

Court in the following manner:

“Accordingly, I have no hesitation in taking the view that  it  is  a  case of  non-disclosure of  liability  in  respect  of  outstanding  electricity  bills  payable  to  Government  Undertaking  (M.S.E.B.);  and  that  non-disclosure  is  a  substantive  defect  in  the  affidavits  filed  along  with  nomination  form.   The  test  to  hold  that  the  defect  is  substantive, in my opinion, is not the amount involved,  but the conscious act of non-disclosure and suppression  of  that fact.   It  would be a case of  technical  defect  if  there  was  some  clerical  error  in  the  information  disclosed by the candidate or for that matter, a case of  omission due to lack of knowledge of existence of such  dues.   In  the  present  case,  the  Respondent  was  conscious and aware of the fact that on the date of filing  of  the  nomination  form,  there  were  two  outstanding  electricity bills in relation to two meters standing in his  name,  payable  to  M.S.E.B.   It  would  have  been  a  

Civil Appeal No. 4261 of 2007 Page 19 of 40

Page 20

different matter if the Respondent was unaware of that  fact or that no such bill was ever issued by the M.S.E.B.  That  is  not  the  case  of  the  Respondent.   Thus  understood,  non-disclosure  about  the  outstanding  electricity bill in the sum of Rs. 79,200/- payable by the  Respondent to M.S.E.B. Is a substantive defect in the  affidavit.   Resultantly,  the  nomination  form filed  along  with such affidavit would become tainted and for which  reason, it will have to be held that the same has been  improperly  accepted  within  the  meaning  of  Section  100(1)(d)(i) of the Act.  Besides, the candidate has failed  to comply with the requirements of the order issued by  the Election Commission in  exercise of  powers  under  Article 324(1) of the Constitution of India which order is  founded on the Law declared by the Apex Court in the  case of  Union of  India vs.  Association for  Democratic  Reforms (supra)  and binding under  Article  141 of  the  Constitution, therefore, affecting his nomination as well  as the Election being void under Section 100(1)(d)(iv) of  the Act.”

18. Insofar as outstanding dues in respect of the second electricity meter  

are concerned, that pertained to premises which had been let out by  

the appellant to his tenants.  There was no dispute that the amount  

was outstanding.  However, the defence of the appellant was that the  

primary liability of making payment was that of the tenants.  The High  

Court had discarded this defence with the observations that electricity  

meter stood in the name of the appellant in relation to which there  

was an outstanding, which amount was payable on the date of filing of  

the  nomination.   Even  the  premises  where  this  meter  had  been  

installed were owned by the appellant.  Therefore, in law, it was the  

appellant who was liable to be proceeded against for recovery of the  

amount and this fact was enough justification to disclose the aforesaid  

Civil Appeal No. 4261 of 2007 Page 20 of 40

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outstanding.   As  per  the  High  Court,  even  this  non-disclosure  

amounted to substantive defect.

On  that  basis,  the  High  Court  held  that  non-disclosure  of  

these Government dues rendered the nomination paper invalid and,  

therefore, it was a case of improper acceptance.

. RE – Non-disclosure of bungalow No. 866 in the name of spouse  and outstanding taxes thereof

19. Bungalow  No.  866  at  Badlapur  in  the  limits  of  Kulgaon-Badlapur  

Municipal Council stands in the name of Kamal Kishore Kathore, wife  

of  the  appellant.   At  the  time  of  filing  the  nomination,  there  were  

municipal  dues  in  the  sum  of  Rs.3,465/-.   Allegation  of  the  first  

respondent was that both the aforesaid informations were suppressed  

and not disclosed in the affidavit filed by the appellant along with the  

nomination  form.   According  to  him,  this  was  crucial  information  

regarding  immovable  property  owned  by  the  appellant's  wife,  

suppression whereof amounted to filing a defective affidavit and such  

an affidavit was no affidavit in the eyes of law.

20. Significantly,  the  averment  of  the  first  respondent  in  the  election  

petition that the appellant had suppressed information regarding the  

aforesaid  immovable  property  belonging  to  his  wife  was  not  

specifically denied by the appellant.  The appellant only denied the  

Civil Appeal No. 4261 of 2007 Page 21 of 40

Page 22

liability of taxes pertaining to this property, that too on the ground that  

this property was required to be put to revaluation and reassessment  

for the purpose of assessing the taxes and for this purpose since the  

measurement of the property was undertaken to assess the taxable  

value,  no  demand notices  were  issued by  the  municipal  authority.  

Even hearing regarding re-assessment took place on December 28,  

2014 before the Collector and it  is only after the completion of the  

reassessment work the municipal  authority had issued tax demand  

notices.

21. In view of the aforesaid, the High Court observed that as far as the  

ownership of the property in the name of the wife of the appellant is  

concerned, it was a clear case of non-disclosure and the ownership  

was proved even on the basis of evidence produced before the Court.  

As  far  as  non-payment  of  municipal  dues  is  concerned,  the  High  

Court noted that the appellant merely explained the circumstances in  

his written statement as to why the municipal taxes in relation to that  

property had not been paid.  However, the municipal taxes were paid  

in part on October 28, 2004, after the date of filing of nomination with  

the payment of Rs.1,783/- pertaining to the year 2003-04.  It would  

show that the appellant was in arrears.  The Court also discussed the  

evidence on this aspect, namely, about the purported dispute relating  

Civil Appeal No. 4261 of 2007 Page 22 of 40

Page 23

to the reassessment as set up by the appellant in his defence and has  

returned a finding of fact that, in fact, there were arrears of municipal  

taxes in relation to that house.

22. As far as non-disclosure of the immovable property is concerned, the  

only reply given by the appellant  was that  there was a substantial  

compliance because of the reason that the appellant in his affidavit  

had disclosed the value of all the properties belonging to him and his  

spouse,  in  the  sum of  Rs.11,10,000/-.   The  High  Court,  however,  

found  that  no  such  case  was  made  out  in  the  written  statement.  

Moreover, in the affidavit filed by the appellant, against the column of  

immovable properties,  he had disclosed the properties at  Badlapur  

and  Kulgaon,  valued  at  Rs.11,10,000/-,  shown against  the  column  

'Self'.  Thus, the valuation of the properties given in the affidavit was  

of  those properties which belong to the appellant  and, therefore, it   

was  a  clear  case  of  non-disclosure  of  wife's  property.   This  non-

disclosure  is  also  taken  as  a  material  defect.   Summing  up  the  

discussion on this aspect, the High Court, in para 74, observed as  

under:

“74. Insofar  as  the  present  case  is  concerned,  as  is  mentioned earlier, the fact asserted by the Petitioner is  that the Respondent has not disclosed the ownership of  his wife in relation to house No. 866/4 in the affidavit “at  all”.   That  allegation  has  remained  unchallenged  and  undenied.  In my opinion, therefore, there is substance  in the stand taken on behalf  of the Petitioner that the  

Civil Appeal No. 4261 of 2007 Page 23 of 40

Page 24

affidavit  filed  by  the  Respondent  along  with  the  nomination  paper  is  only  to  do  lip-service  and  is  no  affidavit at all as is required by the mandate of law or the  order  issued  by  the  Election  Commission  which  is  founded on the Law declared by the Apex Court.  As the  affidavit  filed  by  the  Respondent  along  with  the  nomination form suffers from this substantive defect, the  nomination  of  the  Respondent  has  been  improperly  accepted within the meaning of Section 100(1)(d)(i)  of  the Act.  Besides, the election of the Respondent was  void  also  on  account  of  non-compliance  of  the  order  passed by the Election Commission under Article 324 of  the Constitution of India, which is founded on the Law  declared  by  the  Apex  Court  under  Article  141  of  the  Constitution  of  India,  within  the  meaning  of  Section  100(1)(d)(iv) of the Act.”

RE  –  Non-disclosure  of  vehicle  MH-05-AC-555  owned  by  the  appellant's wife

23. Here again, from the detailed discussion contained in the impugned  

judgment of the High Court, it becomes clear that by leading requisite  

and sufficient evidence, the first respondent proved that wife of the  

appellant  owned  the  aforesaid  vehicle  and  the  particulars  thereof  

were not disclosed.  The defence of the appellant was that he had  

mentioned the value thereof in his affidavit, but accepted that it was  

against  column  'Self'  and  not  in  the  independent  column  of  his  

spouse.  His defence is discussed and rejected by the High Court in  

the following manner:

“89. On  analysis  of  the  pleadings,  it  follows  that  the  Respondent  admits  that  motor  vehicle  in  question  is  owned by his wife.  However, it is not his case that in the  nomination form, he has disclosed the ownership of the  said  vehicle  of  his  wife.   Perhaps,  the  Respondent  intends  to  suggest  that  he has substantially  complied  

Civil Appeal No. 4261 of 2007 Page 24 of 40

Page 25

with  the  requirements  by  disclosing  the  ownership  of  motor  vehicle  valued  Rs.5,50,000/-  and  that  it  was  purchased  against  loan  given  by  M  &  M  Financial  Services Ltd.

90. Before  we  deal  with  the  ocular  evidence  of  the  parties, it will be useful to make reference to the details  to be disclosed by the candidate as per the prescribed  affidavit.  The requirement is that the candidate should  disclose the “details of the motor vehicles” owned and  possessed  by  him,  his  wife  and/or  other  dependent  members of  his  family  separately.    The Respondent,  however,  against the said column has only mentioned  figure  of  Rs.5,50,000/-  under  the column 'Self',  which  gives an impression that the Respondent himself owns  vehicle  valued  Rs.5,50,000/-  and  nothing  more.   No  details of the motor vehicle such as number of vehicle,  the make, the model such as economic, luxury or the  year  of  purchase and the like  are disclosed so as to  enable  the  voters  to  assess  whether  the  details  disclosed  are  correct  or  undervalued,  including  the  legitimate  means  and  capability  of  the  candidate  to  possess such assets.  As in the case of disclosure made  by  the  Respondent  in  respect  of  buildings,  in  similar  manner,  the  disclosure  in  respect  of  vehicle  is  also  incomplete,  vague  and  misleading.   The  candidate  cannot  get  away  with  the  explanation  that  he  has  disclosed  some  amount  in  one  of  the  columns  as  sufficient  or  substantial  compliance.   The  purpose  of  disclosure  of  assets  (movable  and  immovable)  and  liabilities to be made by the candidate, is to educate the  voters  about  the  complete  financial  status  of  the  candidate, which information also facilitates the voter to  assess  whether  the  assets  (movable  and immovable)  declared by the candidate have been procured by him  out of his legitimate and known source of income.  The  voters  have a fundamental  right  to  know and receive  such information about the candidate before they take  an informed decision to elect their candidate.  As it is the  fundamental right of the voters, there is corresponding  duty on the candidate to disclose truthful and complete  information  regarding  the  assets  (movable  and  immovable) as per the prescribed affidavits which forms  integral part of the nomination form.”

Civil Appeal No. 4261 of 2007 Page 25 of 40

Page 26

RE – Non-disclosure of property purchased in the name of the  firm

24. The first respondent had alleged that the appellant has a right, title  

and interest  in land measuring 1330 sq.mts.  being Survey No. 48,  

Hissa  No.  9,  Plot  No.2  and also in  land admeasuring about  1292  

sq.mts. being Survey No. 48, Hissa No. 9, Plot No.3 at Mouje Kalyan,  

Taluka Ambernath, District Thane.  These properties are purchased in  

the name of the partnership firm M/s. Padmavati Developers under  

agreement of development and sale.  The appellant was one of the  

partners in the said firm.  However, the appellant had not disclosed  

his interest in the aforesaid assets in the affidavit filed along with the  

nomination  form.   The  defence  of  the  appellant  in  relation  to  this  

allegation was that he had retired from the partnership firm in the year  

2003 and in his letter dated October 28, 2004 sent to the Returning  

Officer, he had stated that the aforesaid two properties do not belong  

to him.  The High Court noted that admittedly there was no reference  

about  the  two  properties  in  the  affidavits  filed  along  with  the  

nomination form.  Further, it was a common case that M/s. Padmavati  

Developers was formed as a partnership firm in the year  1995, of  

which the appellant  was one of  the partners.   There was also no  

dispute that the bank account was operated in the name of the said  

partnership firm and appellant was one of the joint signatory.  Thus,  

Civil Appeal No. 4261 of 2007 Page 26 of 40

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the only aspect which needed determination was as to whether the  

appellant  had  retired  from  the  said  partnership  firm  in  November  

2003, as claimed by him.  However, from the plethora of documentary  

evidence placed on record,  the High Court  returned a  finding that  

those documents clearly show that the appellant continued to remain  

an active partner even after 2003 and was, in fact, a partner on the  

date  of  filing  of  the  nomination.   Apart  from  various  documents  

revealing and establishing this fact, most important document was the  

Deed of Dissolution of the partnership firm, which was dated January  

11, 2005 and at the time of evidence, the appellant had admitted the  

contents  thereof,  as  well  as  the  signatures  of  the  three  partners  

appearing on that document.

The High Court summed up the decision on this aspect in the  

following manner:

“124. On overall  analysis of the evidence, I  have  no  hesitation  in  concluding  that  the  Petitioner  has  established  the  allegation  that  the  Respondent  continued  to  be  partner  of  the  partnership  firm  Padmavati Developers at least till December 2004.  It is  also matter of record and admitted position that neither  the  Respondent  nor  any  other  partner  of  Padmavati  Developers  caused  to  give  public  notice  of  the  retirement of the partner or for that matter, intimation to  the  Registrar  of  Firms  till  January  2005.   Obviously,  intimation has been sent to the Registrar of Firms only  after the institution and service of the present Election  Petition,  having  realised  the  seriousness  of  the  allegation.   If  so,  it  was obligatory  on the part  of  the  Respondent  to  disclose  his  interest  in  the  properties  purchased in the name of the said firm.”

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25. It  would be pertinent to mention here that the first  respondent had  

alleged  non-disclosure  of  many  other  assets,  liabilities,  etc.  or  

suppression of other material information in the affidavits.  However,  

apart from the aforesaid four non-disclosures, other allegations have  

not been accepted by the High Court.  We would also like to mention  

at  this  stage  itself  that  on  all  the  four  counts  the  High  Court  has  

recorded finding of facts, which are based on the evidence produced  

on record.   As would be noted hereinafter,  learned senior  counsel  

appearing for the appellant did not even attempt to argue that these  

findings are wrong on facts.  He only made legal submissions and his  

entire  endeavour  was  that  for  non-disclosure  of  the  aforesaid  

information, the High Court could not have held that the nomination  

was wrongly accepted and further that since there was a substantial  

compliance,  there  was no  reason  to  set  aside  the  election  of  the  

appellant.

26. On these aspects, the High Court had framed issues No. 7 and 8,  

which are as under:

“(7) Does the Petitioner proves that the Respondent's  Nomination  Form  is  improperly  accepted  by  the  Returning Officer”

(8) Whether on account of improper acceptance of the  nomination  paper,  the  Election  result  is  materially  affected?”

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27. On  Issue  No.7,  finding  of  the  High  Court  is  that  nomination  was  

improperly accepted by the Returning Officer by giving the following  

reasons:

“130. That  takes  me  to  the  next  issue  as  to  whether  Petitioner  proves  that  the  Respondent's  nomination  form  is  improperly  accepted  by  the  Returning Officer?  Insofar as this issue is concerned,  the  Respondent  may  be  right  to  the  extent  that  the  Returning Officer cannot be faulted for having accepted  the  nomination  form  of  the  Respondent.   That  was  required to be accepted inspite of the objection, in view  of the decision of the Apex Court in the case of PUCL  (supra)  and  the  order  issued  by  the  Election  Commission on the basis of the Law declared in the said  Judgment.   Inasmuch  as,  it  was  not  open  to  the  Returning  Officer  to  enquire  into  contentious  issues  raised  in  this  Petition  in  the  summary  enquiry  at  the  stage of  scrutiny of nomination forms.  Those matters  necessarily  have  to  be  addressed  only  after  it  is  disclosed  in  an  enquiry  upon  taking  evidence  on  the  relevant facts at the trial of the Election Petition.  That  does not mean that the nomination of Respondent was  proper  and  lawful.   As  the  Respondent's  nomination  paper suffered from the defects already referred to in  the earlier part  of  this decision, it  is plainly a case of  improper  acceptance  of  his  nomination  paper  by  the  Returning  Officer,  covered  by  the  rigours  of  Section  100(1)(d)(i) of the Act.  The issue No.7 will have to be  answered accordingly.”

28. Issue No. 8 pertains to the question as to whether the election result  

was materially  affected because of  non-disclosure of  the aforesaid  

information.  The High Court took note of provisions of Section 100(1)

(d)(i) and (iv) and discussed the same.  Thereafter, some judgments  

cited  by  the  appellant  were  distinguished  and  deciding  this  issue  

against the appellant, the High Court concluded as under:

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“137. In my opinion, it is not necessary to elaborate  on this matter beyond a point,  except to observe that  when it is a case of improper acceptance of nomination  on  account  of  invalid  affidavit  or  no  affidavit  filed  therewith, which affidavit is necessarily an integral part  of  the  nomination  form;  and  when  that  challenge  concerns the returned candidate and if upheld, it is not  necessary  for  the  Petitioner  to  further  plead or  prove  that  the  result  of  the  returned  candidate  has  been  materially affected by such improper acceptance.

138. The  avowed  purpose  of  filing  the  affidavit  is  to  make  truthful  disclosure  of  all  the  relevant  matters  regarding  assets  (movable  and  immovable)  and  liabilities as well as criminal actions (registered, pending  or in respect of which cognizance has been taken by the  Court  of  competent  jurisdiction  or  in  relation  to  conviction in respect of specified offences).  Those are  matters which are fundamental to the accomplishment  of free and fair election.  It is the fundamental right of the  voters  to  be  informed  about  all  matters  in  relation  to  such details for electing candidate of their choice.  Filing  of complete information and to make truthful disclosure  in respect of such matters is the duty of the candidate  who offers himself or who is nominated for election to  represent  the  voters  from  that  Constituency.   As  the  candidate has to disclose this information on affidavit,  the  solemnity  of  affidavit  cannot  be  allowed  to  be  ridiculed  by  the  candidates  by  offering  incomplete  information  or  suppressing  material  information,  resulting  in  disinformation  and  misinformation  to  the  voters.   The sanctity of  disclosure to be made by the  candidate flows from the constitutional obligation.”

29. As pointed out above, there is no dispute on facts that information in  

respect  of  the  aforesaid  four  aspects  was  not  disclosed  by  the  

appellant in the affidavit filed by him along with the nomination form.  

The  defence  and/or  justification  given  for  non-disclosing  these  

particulars is rightly rebuffed by the High Court.  However, submission  

of Mr. B. Adinarayana Rao, learned senior counsel appearing for the  

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appellant,  was that  having regard to the judgment  of  this  Court  in  

G.M.  Siddheshwar  v.  Prasanna  Kumar,  (2013)  4  SCC  776,  the  

Court was required to examine as to whether information given in the  

affidavits  was substantial  compliance of  those particulars regarding  

Government dues, assets and liabilities, etc.  He submitted that the  

information amounted to substantial  compliance.  For this purpose,  

his  attempt  was  to  demonstrate  that  insofar  as  electricity  dues  of  

MSEB are concerned, there was a genuine dispute about the non-

payment; as far as ownership of bungalow No. 866 in the name of his  

wife  is  concerned,  it  was  added  to  the  value  of  the  properties  

belonged to the appellant; municipal taxes in respect of this bungalow  

were again subject matter of dispute; the value of the vehicle owned  

by his wife was also disclosed against his own name; and as far as  

properties owned by the partnership firm are concerned, the appellant  

was simply a partner from which he had resigned, even when this  

event occurred after the filing of the nomination form.

30. We  may  state,  in  the  first  instance,  that  the  judgment  in   G.M.  

Siddheshwar  has  no  application  insofar  as  the  present  case  is  

concerned.  The Court was dealing with the form of affidavit that is  

required to be filed along with the election petition in order to comply  

with  the provisions of  Section  83(1)  proviso of  the  Act.   The very  

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maintainability of the election petition was challenged on the ground  

that  the  affidavit  furnished  by  the  election  petitioner  was  not  in  

absolute compliance with the format affidavit (Form 25).  The Court,  

however, upheld the view of the High Court holding that on perusal of  

the  affidavit,  there  was  substantial  compliance  with  the  prescribed  

format.  Even when some defect was found in the verification to the  

election  petition,  it  was  held  that  said  defect  is  also  curable  and  

cannot be held fatal to the maintainability of the election petition.  In  

the  present  case,  we  are  concerned  with  the  affidavit  which  a  

candidate seeking election is required to file along with his nomination  

form.  At the same time, we proceed on the basis that if there is a  

substantial  compliance  of  the  requirements  contained  in  the  said  

affidavits,  in  the  sense  that  there  is  a  disclosure  of  required  

particulars,  including  assets/liabilities  etc.,  it  can  be  treated  as  

adequate compliance of the provisions of the Act, Rules and Orders.

31. We  have  also  kept  in  mind  the  following  observations  in   G.M.  

Siddheshwar,  while  undertaking  our  analysis  of  the  issue  in  the  

present case:

“31. The Court must make a fine balance between the  purity of the election process and the avoidance of an  election  petition  being  a  source  of  annoyance  to  the  returned  candidate  and  his  constituents.   In  Azhar  Hussain v. Rajiv Gandhi, 1986 Supp SCC 315 this Court  observed (in  the  context  of  summary  dismissal  of  an  election petition): (SCC p. 324, para 12)

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“12...So  long  as  the  sword  of  Damocles  of  the  election  petition  remains  hanging  an  elected  member of the legislature would not feel sufficiently  free  to  devote  his  whole-hearted  attention  to  matters of public importance which clamour for his  attention  in  his  capacity  as  an  elected  representative of the constituency concerned.  The  time and attention demanded by his elected office  will have to be diverted to matters pertaining to the  contest  of  the  election  petition.   Instead of  being  engaged in a campaign to relieve the distress of the  people  in  general  and  of  the  residents  of  his  constituency who voted him into office, and instead  of resolving their problems, he would be engaged in  campaign to establish that he has in fact been duly  executed.”

32. In  view  of  the  aforesaid,  two  facets  of  the  issue,  which  require  

consideration, are as follows:

a) Whether there is a substantial  compliance in disclosing the  

requisite information in the affidavits filed by the appellant along with  

the nomination paper?

b) Whether  non-disclosure  of  the  information  on  account  of  

aforesaid  four  aspects  has  materially  affected  the  result  of  the  

election?

33. We have already discussed in detail each item of non-disclosure as  

well as defence of the appellant pertaining thereto.  For the reasons  

recorded in detail at that stage by the High Court and stated above,  

with which we agree, we are of the opinion that its finding about non-

disclosure of the information  qua  all the aspects is without blemish.  

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There is  a specific  format  in  which the information is  to  be given,  

which was not adhered to.

34. With these remarks we proceed to deal with the first aspect.

Insofar  as  non-disclosure  of  the  electricity  dues  is  

concerned, in the given facts of the case, we are of the opinion that it  

may not be a serious lapse.  No doubt, the dues were outstanding, at  

the same time, there was a  bona fide dispute about the outstanding  

dues in respect of the first electricity meter.  It would have been better  

on the part of the appellant to give the information along with a note  

about the dispute, as suggested by the High Court, we still feel that  

when the appellant nurtured belief in a bona fide manner that because  

of  the  said  dispute  he  is  not  to  give  the  information  about  the  

outstanding amount, as it had not become 'payable', this should not  

be  treated  as  a  material  lapse.   Likewise,  as  far  as  the  second  

electricity  meter  is  concerned,  it  was  in  the  premises  which  was  

rented out to the tenants and the dues were payable by the tenants in  

the first instance.  Again, in such circumstances, one can  bona fide  

believe that the tenants would pay the outstanding amount.  No doubt,  

if the tenants do not pay the amount the liability would have been that  

of  the owner,  i.e.  the appellant.   However,  at  the time of  filing the  

nomination, the appellant could not presume that the tenants would  

Civil Appeal No. 4261 of 2007 Page 34 of 40

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not pay the amount and, therefore, it had become his liability.  Same  

is the position with regard to non-payment of a sum of Rs.1,783/- as  

outstanding municipal dues, where there was a genuine dispute as to  

revaluation and reassessment for the purpose of assessing the taxes  

was yet  to  be undertaken.   Having said  so,  we may clarify  that  it  

would  depend in  the  facts  and  circumstances  of  each  case  as  to  

whether such a non-disclosure would amount to material lapse or not.  

We are, thus, clarifying that our aforesaid observation in the facts of  

the present case should not be treated as having general application.

35. Even if  it  is  so,  in respect of  the aforesaid aspects,  on other non-

disclosures, the case of the appellant has to fail.  We find clear case  

of non-disclosure of bungalow No. 866 in the name of the appellant's  

wife,  which is a substantial  lapse.  So is  the case about the non-

disclosure of vehicle in the name of appellant's wife.  Likewise, non-

disclosure of the appellant's interest/share in the partnership firm is a  

very serious and major lapse.  On all these aspects, we find that the  

defence/explanation furnished by the appellant does not inspire any  

confidence.  It is simply an afterthought attempt to wriggle out of the  

material  lapse  on  the  part  of  the  appellant  in  not  disclosing  the  

required information, which was substantial.  We, therefore, are of the  

view  that  in  the  affidavits  given  by  the  appellant  along  with  the  

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nomination  form,  material  information  about  the  assets  was  not  

disclosed and, therefore, it is not possible to accept the argument of  

the appellant that information contained in the affidavits be treated as  

sufficient/substantial compliance.

36. We  have  already  reproduced  above  the  relevant  portions  of  

judgments in the cases of Association for Democratic Reforms and  

People's Union for Civil Liberties and the guidelines issued by the  

Election  Commission  pursuant  thereto.    A conjoint  and  combined  

reading thereof clearly establishes that the main reason for issuing  

directions by this Court and guidelines by the Election Commission  

pursuant  thereto  is  that  the  citizens  have  fundamental  right  under  

Article  19(1)(a)  of  the  Constitution  of  India  to  know  about  the  

candidates contesting the elections and this is the primary reason that  

casts a solemn obligation on these candidates to furnish information  

regarding  the  criminal  antecedents,  educational  qualifications  and  

assets held by the candidate, his spouse and dependent children.  It  

is  on  that  basis  that  not  only  Election  Commission  has  issued  

guidelines, but also prepared formats in which the affidavits are to be  

filed.  As a fortiorari, it follows that if the required information as per  

the said format in respect of the assets of the candidate, his wife and  

dependent children is not given, it would amount to suppression/non-

disclosure.

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37. It was argued that  acceptance of nomination is as per Section 33 of  

the Act, which contains requirement for a valid nomination.  Further  

Section 36(2) deals with rejection of nomination on grounds specified  

therein.  It was the submission of the learned senior counsel that at  

the time of scrutiny of the nomination under Section 36, nomination  

could be rejected only if any of the grounds stipulated in sub-section  

(2) are satisfied and there cannot be any 'deemed' ground, which is  

not covered by Section 36(2) of the Act.   Therefore,  the Returning  

Officer  had  rightly  accepted  the  nomination  form  as  none  of  the  

grounds specified in sub-section (2) of Section 36 were attracted.  He  

further  submitted  that  Sections  8A,  9,  9A,  10  and  10A  provide  

disqualifications for Members of Parliament and State Legislature.  As  

per the counsel,  from the scheme of the Act it can be seen that at the  

time of scrutiny of nomination, all that the Returning Officer is required  

to examine is as to whether the candidate suffers from any of  the  

disqualifications mentioned in Section 8 to 10A of the Act and as to  

whether the nomination is in the form prescribed by Section 33 and  

accompanied by the documents mentioned in sub-sections 2 to 7 of  

Section 33 and whether it is accompanied by an affidavit prescribed  

by Rule 4A and the deposit required by Section 34 of the Act.  Apart  

from the aforesaid, the Returning Officer is not empowered to reject  

Civil Appeal No. 4261 of 2007 Page 37 of 40

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the nomination on any other ground.  He argued that the right of the  

Returning Officer to conduct a summary inquiry into the correctness or  

otherwise  of  the  contents  of  the  affidavit  filed  along  with  the  

nomination  was  expressly  taken  away  as  can  be  seen  from  the  

judgment  of  this  Court  in  the  case  of People's  Union  for  Civil   

Liberties.  Having noted that the Returning Officer has no power to  

reject a nomination where false information is furnished or material  

information  is  suppressed,  the  Election  Commission  of  India  and  

Union of India have requested this Court to treat the same as equal to  

a blank affidavit, as noted in the case of Resurgence India.

It  is  difficult  to  accept  the  aforesaid  submissions  of  the  

learned senior counsel as that would amount to nullifying the effect of  

the  judgments  as  well  as  guidelines  issued  by  the  Election  

Commission.

38. When the information is  given by a  candidate  in  the affidavit  filed  

along with  the nomination paper  and objections are raised thereto  

questioning the correctness of the information or alleging that there is  

non-disclosure of certain important information, it may not be possible  

for the returning officer at that time to conduct a detailed examination.  

Summary enquiry may not suffice.  Present case is itself an example  

which loudly demonstrates this.  At the same time, it  would not be  

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possible for the Returning Officer to reject the nomination for want of  

verification about the allegations made by the objector.   In  such a  

case, when ultimately it is proved that it was a case of non-disclosure  

and  either  the  affidavit  was  false  or  it  did  not  contain  complete  

information leading to suppression, it can be held at that stage that  

the  nomination  was  improperly  accepted.   Ms.  Meenakshi  Arora,  

learned senior counsel appearing for the Election Commission, right  

argued that  such an enquiry can be only at  a later  stage and the  

appropriate stage would be in an election petition as in the instant  

case, when the election is challenged.  The grounds stated in Section  

36(2) are those which can be examined there and then and on that  

basis  the  Returning  Officer  would  be  in  a  position  to  reject  the  

nomination.   Likewise,  where  the  blanks  are  left  in  an  affidavit,  

nomination can be rejected there and then.  In other cases where  

detailed  enquiry  is  needed,  it  would  depend  upon  the  outcome  

thereof,  in  an  election  petition,  as  to  whether  the  nomination  was  

properly accepted or it was a case of improper acceptance.  Once it is  

found  that  it  was  a  case  of  improper  acceptance,  as  there  was  

misinformation or suppression of material information, one can state  

that question of rejection in such a case was only deferred to a later  

date.   When  the  Court  gives  such  a  finding,  which  would  have  

resulted  in  rejection,  the  effect  would  be  same,  namely,  such  a  

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candidate  was  not  entitled  to  contest  and  the  election  is  void.  

Otherwise,  it  would  be  an  anomalous  situation  that  even  when  

criminal proceedings under Section 125A of the Act can be initiated  

and the selected candidate is criminally prosecuted and convicted, but  

the  result  of  his  election  cannot  be  questioned.   This  cannot  be  

countenanced.   

39. The  upshot  of  the  aforesaid  discussion  would  be  to  hold  that  the  

present  appeal  is  totally  devoid  of  any  merits  and  is,  accordingly,  

dismissed.

…......................................J. (Surinder Singh Nijjar)

…......................................J. (A.K. Sikri)

New Delhi; May 09, 2014.

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