CIVIL APPEAL NO(s). 10728 OF 2011

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s). 10728 OF 2011

MANGANI LAL MANDAL                           Appellant (s)

                VERSUS

BISHNU DEO BHANDARI                          Respondent(s)

J  U  D  G  M  E  N  T

R.M. Lodha, J.

The returned candidate – Mangani Lal Mandal –  

is in appeal under Section 116A of the Representation of  

the People Act, 1951 (for short, '1951 Act') aggrieved by  

the  judgment  dated  November  25,  2011  of  the  Patna  High  

Court whereby his election to the 15th Lok Sabha has been  

set aside.

2. The  appellant  –  the  returned  candidate  –  

contested the general Parliament election to the 15th Lok  

Sabha from 7, Jhanjharpur Parliamentary Constituency held  

on April 23, 2009. Altogether  12 candidates filed their  

nomination  papers,  including  the  appellant,  as  per  the  

schedule fixed for conducting the said election.  On May  

16, 2009, the result of the above election was announced  

and the appellant was declared elected.

CIVIL APPEAL NO(s). 10728 OF 2011

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3. The respondent - Bishnu Deo Bhandari, a voter  

(hereinafter referred to as the 'election petitioner') -  

challenged the election of the returned candidate by filing  

the  election  petition  before  the  Patna  High  Court.  The  

election  petitioner  alleged  that  the  returned  candidate  

suppressed  the  facts  in  the  affidavit  that  he  filed  

alongwith his nomination papers that he had two wives and  

the dependent children by marriage with his first wife.  He  

did not disclose the assets and liabilities of his first  

wife and the dependent children born out of that wedlock.  

The challenge to the election of the returned candidate was  

brought under Section 100(1)(d)(iv) of the 1951 Act and it  

was prayed that the election of the returned candidate be  

declared to be void.

4. The  returned  candidate  traversed  the  

averments made by the election petitioner and also raised  

diverse objections, inter alia, that the election petition  

did not disclose any cause of action nor it contained the  

concise statement of material facts.

5. The High Court, on the basis of the pleadings  

of the parties, framed as many as seven issues and, after  

recording the evidence, held that the returned candidate  

failed to furnish information about his first wife and the  

dependents in the affidavit filed along with his nomination

CIVIL APPEAL NO(s). 10728 OF 2011

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papers.  The  High  Court  heavily  relied  upon  the  two  

decisions of this Court in Union of India  Vs. Association  

for Democratic Reforms & Anr.1  and People's Union for Civil  

Liberties (PUCL) & Anr.  Vs.  Union of India & Anr.2 and  

held  that  the  suppression  of  facts  by  the  returned  

candidate with regard to the assets and liabilities of his  

first  wife  and  the  dependent  children  born  out  of  that  

wedlock  was  breach  of  the  Constitution  viz.  Article  

19(1)(a)  and  for  such  breach  and  non-compliance,  the  

candidate who has not complied with and breached the right  

to information of electors and has won the election has to  

suffer  the  consequence  of  such  non-compliance  and  the  

breach.  The High Court, in view of the above, set aside  

the  election  of  the  returned  candidate  from  Jhanjharpur  

Parliamentary  Constituency  being  void  under  Section  

100(1)(d)(iv) of the 1951 Act.

6.  We have heard Mr. A. Sharan, learned senior  

counsel for the appellant, and Mr. S.B.K. Manglam, learned  

counsel for the respondent.

7. The  Appeal  deserves  to  be  allowed  on  the  

short ground which we indicate immediately hereinafter.

8. Section  100  of  the  1951  Act  provides  for  

grounds  for  declaring  election  to  be  void.  As  we  are  

concerned  with  Section  100(1)(d)(iv),  the  same  is  

1     (2002) 5 SCC 294 2    (2003) 4 SCC 399

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reproduced which 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) x x x x (b) x x x x (c) x x x x (d) that the result of the election, in so  far as it concerns a returned candidate, has  been materially affected-

(i)  x x x (ii) x x x (iii)  x x x (iv) by any non-compliance with the  provisions of the Constitution or of  this Act or any rules or orders made  under this Act,

the High Court shall declare the election of  the returned candidate to be void.

(2) x x x x”

9. A reading of the above provision with Section  

83 of the 1951 Act leaves no manner of doubt that where a  

returned  candidate  is  alleged  to  be  guilty  of  non-

compliance  of  the  provisions  of  the  Constitution  or  the  

1951 Act or any rules or orders made thereunder and his  

election is sought to be declared void on such ground, it  

is  essential  for  the  election  petitioner  to  aver  by  

pleading  material  facts  that  the  result  of  the  election  

insofar  as  it  concerned  the  returned  candidate  has  been  

materially affected by such breach or non-observance.  If  

the  election  petition  goes  to  trial  then  the  election  

petitioner has also to prove the charge of breach or non-

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compliance  as  well  as  establish  that  the  result  of  the  

election has been materially affected. It is only on the  

basis of such pleading and proof that the Court may be in a  

position to form opinion and record a finding that breach  

or non-compliance of the provisions of the Constitution or  

the 1951 Act or any rules or orders made thereunder has  

materially affected the result of the election before the  

election of the returned candidate could be declared void.  

A mere non-compliance or breach of the Constitution or the  

statutory  provisions  noticed  above,  by  itself,  does  not  

result in invalidating the election of a returned candidate  

under Section 100(1)(d)(iv). The sine qua non for declaring  

election of a returned candidate to be void on the ground  

under clause (iv) of Section 100(1)(d) is further proof of  

the fact that such breach or non-observance has resulted in  

materially affecting the result of the returned candidate.  

In other words, the violation or breach or non-observation  

or non-compliance of the provisions of the Constitution or  

the 1951 Act or the rules or the orders made thereunder, by  

itself,  does  not  render  the  election  of  a  returned  

candidate  void  Section  100(1)(d)(iv).  For  the  election  

petitioner  to  succeed  on  such  ground  viz.,  Section  

100(1)(d)(iv),  he  has  not  only  to  plead  and  prove  the  

ground but also that the result of the election insofar as  

it  concerned  the  returned  candidate  has  been  materially

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affected. The view that we have taken finds support from  

the three decisions of this Court in (1) Jabar Singh  Vs.  

Genda Lal3;  (2) L.R. Shivaramagowda and Others  Vs.  T.M.  

Chandrashekhar (dead) by LRs. and Others.4  and (3)  Uma  

Ballav Rath (Smt.) Vs.  Maheshwar Mohanty (Smt) and others5.

10. Although the impugned judgment runs into 30  pages,  

but unfortunately it does not reflect any consideration on  

the most vital aspect as to whether the non-disclosure of  

the information concerning the appellant's first wife and  

the dependent children born out of that wedlock and their  

assets and liabilities has materially affected the result  

of  the  election  insofar  as  it  concerned  the  returned  

candidate.  As  a  matter  of  fact,  in  the  entire  election  

petition there is no pleading at all that suppression of  

the information by the returned candidate in the affidavit  

filed along with the nomination papers with regard to his  

first  wife  and  dependent  children  from  her  and  non-

disclosure of their assets and liabilities has materially  

affected the result of the election.  There is no issue  

framed in this regard nor there is any evidence let in by  

the election petitioner. The High Court has also not formed  

any opinion on this aspect.  We are surprised that in the  

absence of any consideration on the above aspect, the High  

3   (1964)  6 SCR 54 4  (1999)  1 SCC 666 5  (1999) 3 SCC 357

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Court has declared the election of the returned candidate  

to the 15th Lok Sabha from the Jhanjharpur Parliamentary  

Constituency to the void.  The impugned judgment of the  

High Court is gravely flawed and legally unsustainable. As  

a  matter  of  law,  the  election  petition  filed  by  the  

election petitioner deserved dismissal at threshold yet it  

went into the whole trial consuming Court's precious time  

and putting the returned candidate to unnecessary trouble  

and inconvenience.

11. Civil Appeal is, accordingly, allowed.  The impugned  

judgment  dated  November  25,  2011  is  set  aside.   The  

election petition filed by the respondent is dismissed with  

costs which we quantify at ` 1,00,000/- (Rupees One Lakh).

 ...........................J.

       (R.M. LODHA)

NEW DELHI;         ..............................J. FEBRUARY 1, 2012         (SUDHANSU JYOTI MUKHOPADHAYA)