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REPORTABLE       

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.3797 OF 2015

RAJENDRA KUMAR MESHRAM           APPELLANT(S) VERSUS

VANSHMANI PRASAD VERMA AND ANR    RESPONDENT(S)

JUDGMENT

RANJAN GOGOI, J.

1. The election of the appellant to the No.81 Deosar Constituency  of  Madhya  Pradesh  Legislative  Assembly which was held on 11.05.2013 has been set aside by the High  Court  in  an  election  petition  filed  by  the respondent No.1 herein. The validity of the said order of the High Court is the subject matter of the present appeal.

2. On a reading of the election petition filed by the respondent No.1, it would appear to us that several grounds  were  urged  to  invalidate  the  election  in

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question.  According  to  the  respondent-election petitioner, one of the nominations filed by him as a candidate of the Indian National Congress Party was wrongly  rejected  on  the  ground  that  the  symbol allotment  letter  was  submitted  by  the  election petitioner after the stipulated time. However as two other  nominations  filed  by  the  respondent-election petitioner as an independent candidate was accepted, he  contested  the  election  in  which  he  lost. Consequently,  he  challenges  the  rejection  of  his nomination  as  a  Indian  National  Congress  Party candidate  as  being  wrongful.  Apart  from  the  above ground, the election petition was also filed alleging that the appellant-returned candidate was a government servant. In addition to the above, it was pleaded that the  appellant-returned  candidate  had  failed  to furnish,  along  with  the  nomination  paper,  a copy/certified  copy  of  the  electoral  roll  of  No.80 Singrauli  constituency  in  which  electoral  roll  his name  was  claimed  to  be  appearing  against  serial No.118.  According  to  the  election  petitioner  on account  of  the  aforesaid  omission  the  returned candidate  was  not  eligible  to  participate  in  the election.  His  nomination,  therefore,  was  wrongly

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accepted.

3. The High Court answered the first two questions in favour of the returned candidate. However, insofar as the third question set forth above is concerned, the conclusion  of  the  High  Court  is  adverse  to  the returned candidate. In this connection the High Court came to the conclusion that the returned candidate had not filed the electoral roll or certified copy thereof of  No.80  Singrauli  Constituency  and  therefore  the returning  officer  had  committed  an  illegality  in accepting the nomination of the returned candidate and in not rejecting the same on account of non-compliance of Sections 33(5) and 36(2)(b) of the Representation of People Act, 1951 (For short, “the 1951 Act”). On the said basis the High Court came to the conclusion that the election of the returned candidate was liable to be declared void under Section 100(1)(a) along with Section  100(1)(d)(i)  of  the  1951  Act.  Consequential directions therefore have been issued. Aggrieved this appeal has been filed.  

4. We have heard Shri Shekhar Naphade, learned senior counsel  appearing  for  the  appellant,  Shri  Vivek Tankha,  learned  senior  counsel  appearing  for  the

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respondent  No.1  and  Shri  Mishra  Saurabh,  learned counsel for the respondent No.2.

5. As  no  cross  appeal  has  been  filed  by  the respondent-election  petitioner  challenging  the findings of the High Court adverse to him, the scope of the present appeal is confined to the correctness of the order of the High Court insofar as the third question set forth above is concerned.

6. At the outset the relevant part of the pleadings contained in the election petition insofar as the said issue is concerned may be set out as hereunder :-

1.11 That,  the  election  of  the respondent  as  a  member  of  M.P. Legislative  Assembly  for  Devsar Constituency deserves to be declared as void  for  the  reason  that  the  Returning Officer  has  wrongly  rejected  the petitioner's nomination form as candidate sponsored by Indian National Congress and also for wrongly accepting the nomination from the respondent. It is also submitted that  the  respondent  not  only  failed  to submit  order  by  Competent  Authority accepting his resignation but also failed to furnish a certified copy of the voter list  to  entitle  him  to  contest  the election from Devsar constituency as he is  registered  voter  of  80,  Singrauli constituency and  without  filing  the certified copy of relevant part of voter list he was not eligible to contest from other  constituency.  Acceptance  of respondent's  nomination  form  has

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materially affected the election result. 1.12 That the respondent has been illegally allowed to contest the election while  the  petitioner  has  been  wrongly denied the right to contest the election and therefore, this petition. 1.13 That,  the  rejection  of nomination  form  of  the  petitioner  was illegal and contrary to election law and rules  framed  thereunder  and  as  such declaring  the  respondent  No.1  (one)  as returned  candidate  from  81,  Devsar constituency deserves to be quashed and deserves to be declared as null and void. 1.14 That, the nomination form of the respondent has been wrongly accepted by  the  Returning  Officer  ignoring  the legal provision. It is submitted that the respondent  has  not  produced  any  valid documents  to  prove  that  he  was  not  in service  on  the  date  of  filing  of  his nomination  form  and  he  has  also  not furnished  the  certified  copy  of  the relevant part of the voter list of the constituency in which he was registered as  voter  to  entitle  him  to  contest election from other constituency i.e. 81, Devsar Constituency.”

7. In  a  written  statement  filed  by  the  returned candidate,  all  the  aforesaid  averments  have  been denied. On the basis of the pleadings of the parties the following issues were framed by the Court:-

(1) Whether the returning officer has malafidely  rejected  the  petitioner's nomination  form  as  the  candidate sponsored by the Indian National Congress under  the  influence  of  the  then  ruling party ?

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(2) Whether  respondent  No.1  was  in government  service  at  the  time  of acceptance of his nomination form by the returning officer ? (3) Whether  respondent  No.2  has committed  illegality  in  accepting  the nomination form of respondent No.1 ? (4) Whether respondent No.1 has failed to prove that his name was in the voter list of 80 Singrauli Constituency ? (if so, effect) (5) Whether respondent No.1 has failed to  submit  valid  Caste  Certificate  for contesting  the  election  from  the constituency reserved for scheduled caste category ? (6) Whether result of election of 81 Deosar  Constituency  was  materially affected  due  to  improper  acceptance  of nomination of respondent No.1 ? (7) Relief and costs ?

8. As issue Nos.1 and 2 extracted above, have been answered in favour of the returned candidate and there is no cross appeal, it is only the remaining issues that survive for consideration. All the said issues center round the question of improper acceptance of the nomination form of the returned candidate. In this regard,  issue  No.6  which  raises  the  question  of material  affect  of  the  improper  acceptance  of nomination of the returned candidate on the result of

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the election may be specifically noticed.

9. Under Section 100 (1)(d), an election is liable to be declared void on  the ground of improper acceptance of a  nomination if  such improper  acceptance of  the nomination has materially affected the result of the election. This is in distinction to what is contained in  Section  100(1)(c)  i.e.  improper  rejection  of  a nomination  which  itself  is  a  sufficient  ground  for invalidating  the  election  without  any  further requirement  of  proof  of  material  effect  of  such rejection on  the result  of the  election. The  above distinction must be kept in mind. Proceeding on the said  basis,  we  find  that  the  High  Court  did  not endeavor to go into the further question that would be required to be determined even if it is assumed that the  appellant-returned  candidate  had  not  filed  the electoral  roll  or  a  certified  copy  thereof  and, therefore,  had  not  complied  with  the  mandatory provisions of Section 33(5) of the 1951 Act. In other words, before setting aside the election on the above ground, the High Court ought to have carried out a further  exercise,  namely,  to  find  out  whether  the improper acceptance of the nomination had materially

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affected the result of the election. This has not been done  notwithstanding  issue  No.6  framed  which  is specifically  to  the  above  effect.  The  High  Court having failed to determine the said issue i.e. issue No.6, naturally, it was not empowered to declare the election of the appellant returned candidate as void even if we are to assume that the acceptance of the nomination of the returned candidate was improper.

10. An argument has been advanced on behalf of the respondent-election petitioner that the High Court has also  found  the  election  to  be  void  on  the  grounds mentioned in Section 100(1)(a). In this regard it has been  submitted  that  the  failure  of  the  returned candidate  to  furnish  the  electoral  roll  of  the constituency where his name appears as a voter or the certified  copy  thereof  would,  by  itself,  establish that he was not qualified to take part in the election as  he  had  failed  to  prove  that  he  is  a  voter. Therefore his election was liable to be declared void under Section 100(1)(a) of the 1951 Act which the High Court had done.

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11. Under Section 100(1)(a)  the  election  of  the returned candidate is liable to be declared void if, inter alia,  he was  not qualified  for membership  of Parliament or the State Legislature as may be. Section 5  of  the  1951  Act  deals  with  qualifications  for membership of a Legislative Assembly of a State which, inter alia, requires a candidate to be an elector of any Assembly constituency of the State. To declare an election  void  under  Section  100(1)(a),  it  must, therefore, be established that the returned candidate is not a voter of any assembly constituency of the State.  

12. After  the  receipt  of  nomination,  the  election petitioner  has  objected  to  the  acceptance  of  the nomination of the appellant-returned candidate on the ground that the returned candidate was a Government servant and therefore disqualified from contesting the election.  This was rejected by the Returning Officer on 11.11.2013 holding that the returned candidate had duly  submitted  his  resignation  which  was  accepted before the date of filing of nomination.  No objection to  the  effect  that  the  returned  candidate  was  not qualified  to  contest  the  election  as  he  was  not  a

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voter of any assembly Constituency of the State was raised  in  the  objection  filed.  Neither  was  any objection  taken  to  the  effect  that  the  returned candidate  was  not  eligible  to  participate  in  the election as he had not furnished the electoral roll of the  Constituency  in  which  he  was  a  voter  or  a certified  copy  thereof.  However,  in  the  election petition filed, it was pleaded in para 1.11 of the election petition, (extracted above) that the returned candidate had “failed to furnish a certified copy of the voter list to entitle him to contest the election from Devsar constituency as he is registered voter of 80,  Singrauli  constituency and  without  filing  the certified copy of relevant part of voter list he was not  eligible  to  contest  from  other  constituency.” There was no pleading at all to the effect that the appellant is not a voter of any assembly constituency and therefore is not qualified.

13. From the above, it is clear that it was not the case  of  the  respondent-election  petitioner  that  the appellant-returned  candidate  was  not  qualified  to contest the election.  It is only before this Court, and that too in the oral arguments made, that it has

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been urged, by relying on the order of the High Court, that  the  returned  candidate  was  not  qualified  to contest the election under Section 100(1)(a) of the 1951 Act and therefore his election was rightly set aside by the High Court.

14. The trial of an election petition, as per Section 87  of  1951  Act  has  to  be  in  accordance  with  the provisions of the Code of Civil Procedure, 1908. When no  pleadings  that  the  election  of  the  returned candidate  was  void  on  grounds  mentioned  in  Section 100(1)(a) were made and no issue on this score was struck and no opportunity to the returned candidate to adduce relevant evidence was afforded, the High Court, in our considered view, could not have found that the election  of  the  returned  candidate  was  void  under Section 100(1)(a).  In fact,  from a  reading of  para 1.11 of the election petition as extracted above, it clearly  appears  that  the  election  petitioner  had stated  that  the  appellant-returned  candidate  is  a voter  of  No.80  Singrauli  constituency  but  he  had omitted to enclose the electoral roll or a certified copy thereof along with his nomination papers which made him ineligible to contest the election. This part

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of  the  pleading  must  be  seen  in  the  light  of  the provisions of Section 33(4) and 33(5) of the 1951 Act. Under Section 33(4) the returning officer must satisfy himself  that  a  candidate’s  name  and  electoral  roll numbers  is  the  same  as  claimed/entered  in  the nomination paper.  If the candidate is a voter of the same constituency from which he seeks election, there is no difficulty the electoral rolls would be readily available  with  the  returning  officer.  But  if  the candidate  is  a  voter  of  another  constituency,  then Section 33(5) requires him to enclose along with the nomination or at the time of scrutiny, the electoral roll or certified copy of the same pertaining to that constituency.  The  entire  case  of  the  election petitioner as pleaded is that the appellant-returned candidate  was  a  voter  of  another  constituency  i.e. No.80 Singrauli constituency but he had not enclosed or produced the electoral roll of that constituency or a certified copy thereof thereby making him ineligible to contest the election.      

15. In view of the state of the pleadings as noticed above; the issues framed and the evidence led by the parties, we cannot agree with the High Court that the

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respondent-election petitioner had made out a case for declaration that the result of the election in favour of  the  returned  candidate  was  void  under  Section 100(1)(a)  of  the  1951  Act.  Having  reached  our conclusion on above said basis, it is not necessary to go  into  the  question  raised  on  behalf  of  the respondent-election petitioner that failure to produce the copy of the electoral roll of the constituency in which  a  candidate  is  a  voter  or  a  certified  copy thereof, by itself, would amount to a proof of lack of/absence  of  qualification  under  Section  5  of  the 1951 Act.  All that would be necessary for us to say in this regard is that any such view would not be consistent  with  the  legislative  intent  expressed  by the enactment of two separate and specific provisions contained in Section 100 (1) (a) and 100 (1) (d) of the 1951 Act.   

16. Though a number of precedents have been cited on behalf  of  the  respondent-election  petitioner  to sustain  the  arguments  advanced,  it  will  not  be necessary  for  us  to  take  any  specific  note  of  the principles of law laid down in any of the said cases inasmuch as all the said cases relate to rejection of

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nominations on account of failure to comply with the provisions of Section 33(5) of the Act of 1951 which is not in issue before us in the present appeal.   

17. Consequently  and  for  the  aforesaid  reasons,  we cannot  sustain  the  order  of  the  High  Court. Accordingly, the same is set aside and the appeal is allowed.   The  election  of  the  appellant-returned candidate is declared to be valid in law.  

..............,J.  (RANJAN GOGOI)

...............,J. (PRAFULLA C. PANT)

NEW DELHI OCTOBER 03, 2016