Page 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 2649 of 2016  

SRI MAIREMBAM PRITHVIRAJ @ PRITHVIRAJ SINGH

.... Appellant(s) Versus

SHRI PUKHREM SHARATCHANDRA SINGH

….Respondent(s)

With

CIVIL APPEAL No. 2829 of 2016  

PUKHREM SHARATCHANDRA SINGH  

.... Appellant(s) Versus

SRI MAIREMBAM PRITHVIRAJ @ PRITHVIRAJ SINGH

….Respondent(s)

J U D G M E N T

L. NAGESWARA RAO, J.

CIVIL APPEAL No. 2649 of 2016  

1

Page 2

The Appellant has filed this appeal  aggrieved by the

judgment of the High Court of Manipur at Imphal by which

his  election  to  the  Manipur  Legislative  Assembly  from

Moirang Assembly constituency was declared as void.   

2. A  Notification  was  issued  for  election  to  the  10th

Manipur  Legislative  Assembly  on  04.01.2012.   The

Appellant belonging to the Nationalist Congress Party (NCP)

and  the  Respondent  who  was  sponsored  by  the  Indian

National Congress (INC) filed their nominations within the

time prescribed.  There was no other nomination filed.   The

Respondent objected to the nomination of the Appellant at

the time of scrutiny on the ground that a false declaration

relating  to  educational  qualification  was  made  by  the

Appellant.  The Returning Officer directed the Appellant to

submit documents in proof of his educational qualification

as  declared  in  the  affidavit  filed  under  Form  26.    The

Appellant  failed  to  produce  any  document  to  prove  his

educational  qualification  in  spite  of  which  the  Returning

Officer  accepted  the  nomination  of  the  Appellant.  Polling

took place on 28.01.2012 and the counting  of  votes was

2

Page 3

held on 06.03.2012.  The result was declared on the same

day.   The  Appellant  secured  14,521  votes  and  the

Respondent  secured  13,363  votes.   The  Appellant  was

declared elected as MLA, Moirang Constituency.    

3. The  Respondent  challenged  the  election  of  the

Appellant by filing an election petition in the Guwahati High

Court  seeking  a  declaration  that  the  Appellant’s  election

was null and void, that the Respondent should be declared

as duly elected and that a criminal proceeding should be

directed to be initiated against the Appellant under Section

125-A  and  127  of  the  Representation  of  the  People  Act,

1951 (hereinafter referred to as ‘the Act’).  Apart from the

ground  of  improper  acceptance  of  nomination,  the

Respondent  also  alleged  corrupt  practices  against  the

Appellant.    

4. The  Appellant  denied  the  allegation  of  false

declaration.   According  to  the  Appellant,  the  declaration

made  by  him  that  he  passed  Master  of  Business

Administration (MBA) in 2004 from Mysore University was a

clerical error.  The Respondent abandoned the allegation of

3

Page 4

corrupt  practices  and other  electoral  malpractices  during

the trial of the election petition in the High Court.      The

High Court framed six issues which are as follows:  

i) “Whether the Returning Officer of 27th Moirang AC

has illegally accepted the nomination paper of the

respondent or not? ii) Whether the election of the respondent had been

materially  affected  by  the  acceptance  of  the

nomination paper of the respondent by the R.O. of

27th Moirang A/C or not? iii) Whether the respondent had filed false affidavit in

respect  of  the  highest  education  qualification  in

the Form, in which the respondent had mentioned

“MBA  Mysore  University”  or  whether  it  was

merely a clerical error? iv) Whether the petition lacks material facts or not? v) Whether  the  election  petition  is  liable  to  be

dismissed for not putting the words “attested to be

true copy of the petition” on each and every page

of the petition by the petitioner himself or not; or

on any of the defects raised by the respondent in

his written statement? vi) Whether  the  petitioner  is  entitled  to  the  relief

claimed in the writ petition?”

5. Issue No. 5 pertains to attestation of the petition not

being made properly.  The objection raised by the Appellant

to the maintainability of the election petition was that only

4

Page 5

the  front  page  of  the  election  petition  had  the  words

“Attested to be true copy.”  Issue No. 5 was answered in

favour of the Respondent. The High Court considered the

main controversy pertaining to the filing of  false  affidavit

regarding the educational qualification by the Appellant in a

detailed manner.   There is no doubt that the Appellant filed

Form  26  in  which  he  mentioned  his  educational

qualification as MBA from Mysore University in 2004.  After

careful consideration of the material on record and various

judgments cited by the parties, the High Court concluded

that  the  declaration  made  by  the  Appellant  in  Form  26

about  his  educational  qualification  as  MBA from Mysore

University was false.   The plea of the Appellant that the

defect in Form 26 was due to a clerical error was rejected.

The  contention  of  the  Appellant  that  providing  wrong

information about the educational  qualification was not a

defect  of  substantial  character  was  also  rejected.   The

Appellant  contended  that  the  Respondent  failed  to  plead

and  prove  that  the  result  was  ‘materially  affected’  as

required under  Section 100 (1)  (d)  of  the Act.   The High

5

Page 6

Court did not accept the said contention on the ground that

there were only two candidates in the fray in which case it

was not necessary to prove that the result of election of the

returned candidate was materially affected.  The High Court

further held if it is found that the Appellant’s nomination

was  improperly  accepted,  the  result  of  his  election stood

automatically affected materially.   The High Court on the

basis  of  the  above  reasons  declared  the  election  of  the

Appellant  as  void.   The  Appellant  has  filed  this  appeal

challenging the same.    

6. We have heard Mr. V. Giri, learned Senior Counsel for

the  Appellant  and  Ms.  Meenakshi  Arora,  learned  Senior

Counsel for the Respondent.   Mr. Giri submitted that the

declaration pertaining to the educational qualification of the

Appellant was merely a clerical error and cannot be termed

as  a  false  declaration.   In  any  event,  the  declaration  of

educational  qualification  is  not  a  defect  of  substantial

nature warranting rejection of  his  nomination.    Mr.  Giri

also  submitted  that  the  election  petition  was  filed  under

Section 100 (1) (d) (i) and (iv) of the Act.   He stated that

6

Page 7

there is neither pleading nor proof in the election petition

that the improper acceptance of the Appellant’s nomination

had materially affected the result.  According to Mr. Giri,

the Appellant’s election cannot be set aside on the ground of

improper  acceptance  of  his  nomination  without  the

requirement of Section 100 (1) (d) of the Act being satisfied.

He referred to Durai Muthuswami v. N. Nachiappan and

Ors.   reported in 1973 (2) SCC 45 and submitted that the

said judgment should be restricted to the facts of that case.

He also attempted to distinguish the said judgment as not

applicable to the facts of this case by submitting that it was

a case of disqualification under Section 9-A of the Act.  He

further submitted that the said case was one filed under

Section 100 (1) (a) of the Act. He contended that there is no

need for pleading or proving that the result was materially

affected if the election is challenged under Section 100 (1)

(a) to (c) whereas it is compulsory in a petition filed under

Section 100 (1) (d).  

7. Ms. Meenakshi Arora, learned Senior Counsel, argued

that the Respondent pleaded in the election petition that the

7

Page 8

result  of  the  election  was  materially  affected  by  the

improper  acceptance  of  the  nomination  of  the  Appellant.

She took us through the pleadings and evidence, both oral

and  documentary,  to  contend  that  the  declaration  of

educational  qualification  by  the  Appellant  was  not  a

mistake.    She submitted that  the  same declaration was

made by the Appellant even when he contested the earlier

election  to  the  Legislative  Assembly  in  2008.   She  also

highlighted  the  contradictory  stands  relating  to  the

declaration taken by the Appellant.  She submitted that it

was not necessary to show that the result of the election

was materially affected when there were only two contesting

candidates for one seat.   She relied upon the judgment in

Durai  Muthuswami  (supra)  which  according  to  her,  was

approved in Jagjit Singh v. Dharam Pal Singh  , reported

in 1995 Supp (1) SCC 422.   She further relied upon Union

of  India  v.  Association  for  Democratic  Reforms,

reported in 2002 (5) SCC 294,  People’s Union for Civil

Liberties (PUCL) v. Union of India, reported in 2003 (4)

SCC  399,  Kisan  Shankar  Kathore  v.  Arun  Dattatray

8

Page 9

Sawant reported in 2014 (14) SCC 162 and Resurgence

India v. Election Commission of India and Anr. reported

in 2014 (14) SCC 189 in support of her submission that a

voter  has  a  right  to  know  about  the  educational

qualification  of  the  candidate  and  any  false  or

mis-declaration would result in rejection of the nomination

of  the  candidate.  Ms.  Meenakshi  Arora  also  cited  Hari

Krishna Lal v.  Babu Lal Marandi  reported in 2003 (8)

SCC 613  to contend that the false declaration relating to

the educational  qualification of a candidate is a defect of

substantial character.   

8. Two  issues  fall  for  our  consideration  in  this  appeal

which are: (a)Whether  a  false  declaration  relating  to  the

educational  qualification is  a defect of  substantial

character warranting rejection of a nomination? (b)Whether it is necessary to plead and prove that the

result was materially affected when the nomination

of the returned candidate was found to have been

improperly accepted, moreso, when there are only

two candidates contesting the election?

9

Page 10

9.   Chapter  I  of  Part  V  of  the  Act  deals  with  the

nomination of candidates. Section 33 of the Act provides for

presentation  of  nomination  paper  and  requirements  of  a

valid  nomination.   A  nomination  paper  complete  in  the

prescribed form, signed by a candidate and by an elector of

the  constituency  as  proposer  should  be  delivered  to  the

Returning  Officer  within  the  prescribed period.    Section

33-A which was inserted by Act 72 of 2002 with effect from

24.08.2002 contemplates that  a candidate has to provide

additional information, apart from the information provided

by him under Section 33 (1).  The information mentioned in

Section  33-A  relates  to  the  criminal  antecedents  of  a

candidate.  Section 36 deals with scrutiny of nomination.

Section 36(4) which is relevant for adjudication of this case

is as follows:

“36. Scrutiny of nomination. – (4) The Returning Officer shall not reject any nomination paper on the

ground of any defect which is not of a substantial

character.”  

10

Page 11

10. Rule  4  (A)  of  the  Conduct  of  Election  Rules,  1961

which was inserted with effect  from 03.09.2002 reads as

under:   “[4A. Form of affidavit to be filed at the time of delivering  nomination  paper.—The  candidate  or his proposer, as the case may be, shall, at the time of

delivering  to  the  returning  officer  the  nomination

paper under subsection (1) of section 33 of the Act,

also  deliver  to  him  an  affidavit  sworn  by  the

candidate before a Magistrate of the first class or a

Notary in Form 26.]”

11. A  candidate  has  to  file  an  affidavit  along  with  his

nomination paper as prescribed in Form 26 in which one of

the  columns  pertains  to  the  educational  qualification.

Grounds for declaring the election to be void are provided in

Section 100 of the Act which is as under: “100.  Grounds  for  declaring  election  to  be void.—  [(1) Subject to the provisions of sub-section (2) if 3

[the High Court] is of opinion— (a)  that  on  the  date  of  his  election  a  returned

candidate  was  not  qualified,  or  was

disqualified, to be chosen to fill the seat under

the Constitution or this Act 9 [or the Government

of Union Territories Act, 1963 (20 of 1963)]; or

11

Page 12

(b) that any corrupt practice has been committed by

a returned candidate or his election agent or by

any other person with the consent of a returned

candidate or his election agent; or (c)  that  any  nomination  has  been  improperly

rejected; or (d)  that  the  result  of  the  election,  in  so  far  as  it

concerns  a  returned  candidate,  has  been

materially affected—  (i) by the improper acceptance or any nomination,

or (ii)  by  any  corrupt  practice  committed  in  the

interests  of  the  returned  candidate  1  [by  an

agent other than his election agent], or  (iii) by the improper reception, refusal or rejection of

any vote or the reception of any vote which is

void, or  (iv) by any non—compliance with the provisions of

the Constitution or of this Act or of any rules or

orders made under this Act,  [the  High  Court]  shall  declare  the  election  of  the

returned candidate to be void.]  [(2)]  If  in  the  opinion  of  2  [the  High  Court],  a

returned candidate has been guilty by an agent, other

than his election agent, of any corrupt practice 4 ***

but 2 [the High Court] is satisfied—  (a) that no such corrupt practice was committed at

the  election  by  the  candidate  or  his  election

agent,  and  every  such  corrupt  practice  was

committed  contrary  to  the  orders,  and  5

12

Page 13

[without  the  consent],  of  the  candidate  or  his

election agent;  6 * * * * *  (c) that the candidate and his election agent took

all  reasonable  means  for  preventing  the

commission  of  corrupt  7  ***  practices  at  the

election; and  (d) that in all other respects the election was free

from any corrupt 7 *** practice on the part of the

candidate or any of his agents,  then 2 [the High Court] may decide that the election

of the returned candidate is not void.”          12. Section  125-A  prescribes  penalty  for  filing  false

affidavit which is reproduced as under: “[125A. Penalty for filing false affidavit, etc.— A candidate who himself  or through his proposer,

with intent to be elected in an election,— (i) fails  to  furnish  information  relating  to

sub-section (1) of section 33A; or  (ii) give false information which he knows or has

reason to believe to be false; or  (iii) conceals  any  information,  in  his  nomination

paper  delivered  under  sub-section  (1)  of

section 33 or in his affidavit which is required

to be delivered under sub-section (2) of section

33A,  as  the  case  may  be,  shall,

notwithstanding  anything  contained  in  any

other  law  for  the  time  being  in  force,  be

punishable  with  imprisonment  for  a  term

13

Page 14

which may extend to six months, or with fine,

or with both.]”

13. Sir Winston Churchill underlining the importance of a

voter in a democratic form of Government stated as follows: “At  the  bottom  of  all  tributes  paid  to  democracy  is   

the little man, walking into a little booth, with a little   

pencil, making a little cross on a little bit of paper — no  

amount  of  rhetoric  or  voluminous  discussion  can   

possibly diminish the overwhelming importance of the   

point.”

14. In  Union  of  India  v.  Association  for  Democratic

Reforms  (supra)  this  Court  held  that  the  voter  has  a

fundamental  right  to  information  about  the  contesting

candidates.   The voter has the choice to decide whether he

should  cast  a  vote  in  favour  of  a  person  involved  in  a

criminal  case.    He  also  has  a  right  to  decide  whether

holding  of  an  educational  qualification  or  holding  of

property  is  relevant  for  electing  a  person  to  be  his

representative.  Pursuant to the judgment in Union of India

v. Association for Democratic Reforms (supra) Section 33-A

was  inserted  in  the  Representation  of  the  People  Act

providing  for  right  to  additional  information  by  an

14

Page 15

Ordinance.   The challenge to the said Ordinance was dealt

with  by  this  Court  in  People’s  Union  for  Civil  Liberties

(PUCL) v.  Union of  India (supra) in which it  was held as

follows: “78. What emerges from the above discussion can be summarised thus:   (D)  The  contention  that  as  there  is  no  specific

fundamental right conferred on a voter by any statutory

provision to know the antecedents of a candidate, the

directions given by this Court are against the statutory

provisions is, on the face of it, without any substance.

In  an  election  petition  challenging  the  validity  of  an

election  of  a  particular  candidate,  the  statutory

provisions would govern respective rights of the parties.

However,  voters'  fundamental  right  to  know  the

antecedents of a candidate is independent of statutory

rights under the election law. A voter is first citizen of

this  country  and  apart  from  statutory  rights,  he  is

having  fundamental  rights  conferred  by  the

Constitution.  Members of  a democratic  society should

be  sufficiently  informed  so  that  they  may  cast  their

votes  intelligently  in  favour  of  persons  who  are  to

govern them. Right to vote would be meaningless unless

the citizens are well informed about the antecedents of

a candidate. There can be little doubt that exposure to

public gaze and scrutiny is one of the surest means to

15

Page 16

cleanse our democratic governing system and to have

competent legislatures.”

15. It is relevant to mention that the Election Commission

of India issued a press note on 28.06.2002 in which there

was a reference to the judgment of this Court in Union of

India v. Association for Democratic Reforms in which it was

held that information on five aspects has to be provided to

the  voter.   One  of  the  five  aspects  pertains  to  the

educational qualification of the candidates.  An order was

issued by the Election Commission of India on 28.06.2002

directing that full and complete information relating to the

five aspects which were mentioned in the judgment has to

be  furnished.  Providing  incomplete  information  or

suppression  of  material  information  on  any  of  the  five

aspects  was  to  be  treated  as  a  defect  of  substantial

character by the Returning Officers.    

16. In Resurgence India v. Election Commission of India

and Anr.  (supra)  this  Court  held  that  every  candidate  is

obligated to file an affidavit with relevant information with

regard to their criminal antecedents, assets and liabilities

and educational qualification.  The fundamental right under

16

Page 17

Article  19  (1)  (a)  of  the  voter  was  reiterated  in  the  said

judgment and it was held that filing of affidavit with blank

particulars  would  render  the  affidavit  as  nugatory.   In

Kisan  Shankar  Kathore  v.  Arun  Dattatray  Sawant

reported in 2014 (14) SCC page 162 this Court considered

the  question  as  to  whether  it  was  incumbent  upon  the

Appellant to have disclose the information sought for in the

nomination  form and  whether  the  non-disclosure  thereof

render the nomination invalid and void.  It was held that

non-furnishing of the required information would amount to

suppression/non-disclosure.     

17. It  is  clear  from the  law laid  down by this  Court  as

stated above that  every voter has a fundamental  right to

know about the educational qualification of a candidate.   It

is also clear from the provisions of the Act, Rules and Form

26 that there is a duty cast on the candidates to give correct

information about their educational qualifications.  It is not

in  dispute  that  the  Appellant  did  not  study  MBA in  the

Mysore  University.   It  is  the  case  of  the  Appellant  that

reference  to  MBA  from  Mysore  University  was  a  clerical

17

Page 18

error.   It  was contended by the Appellant that he always

thought  of  doing  MBA  by  correspondence  course  from

Mysore University.  But, actually he did not do the course.

The  question  which  has  to  be  decided  is  whether  the

declaration given by him in Form 26 would amount to a

defect  of  substantial  nature  warranting  rejection  of  his

nomination.   Section 36 (4) of the Act mandates that the

Returning Officer shall not reject a nomination paper on the

ground of any defect which is not of a substantial character.

The declaration made by the Appellant in Form 26, filed in

2012  is  not  a  clerical  error  as  contended  by  him.   The

Appellant  contested  election  to  the  same constituency  in

2008  and  in  the  affidavit  filed  by  him  in  Form  26  he

declared  that  he  passed  MBA from Mysore  University  in

2004.  In the affidavit filed by him in this election petition

by way of  examination-in-chief,  the Appellant  stated that

his  nomination  paper  and  the  enclosed  affidavit  were

prepared and filed by his counsel Chakpam Bimolchandra

Singh on the instructions of  his agent Ph. Shamu Singh.

He also stated that his counsel filled the prescribed affidavit

18

Page 19

in his own hand-writing.  The Appellant also stated that he

signed  the  affidavit  without  reading  the  contents  and he

came to know about the error only when the Respondent

raised  his  objection  to  the  nomination.   The  Appellant

further  stated  that  he  was  working  in  Projeon,  Infosys

Company and IBM till 2007 and because of his job many

local  friends  and  elders  thought  that  he  was  an  MBA

degree-holder.  His election agent also thought that he was

holding  an  MBA  degree  due  to  which  he  instructed  the

Advocate Chakpam Bimolchandra Singh to fill up column 9

of  the  affidavit  by  stating  that  the  Appellant  is  an  MBA

degree-holder.    In  his  cross-examination,  the  Appellant

gave  evasive  replies  to  the  questions  relating  to  his

educational  qualification.   He  stated  that  he  does  not

remember  whether  he  had  undergone  MBA from Mysore

University and he does not remember whether he possesses

MBA  degree.   Chakpam  Bimolchandra  Singh  who  was

examined as DW-3 in his cross-examination denied having

filled up the entries in Form 26.  He stated that he entered

the educational qualifications of the Appellant on the basis

19

Page 20

of instructions given by the election agent Shamu Singh. He

also  stated  that  he  was  not  present  before  the  Oath

Commissioner when the Appellant signed the affidavit.    18. The contention of  the Appellant  that  the declaration

relating to his educational qualification in the affidavit is a

clerical  error  cannot  be  accepted.    It  is  not  an  error

committed once.  Since 2008, the Appellant was making the

statement  that  he  has  an MBA degree.   The information

provided  by  him in  the  affidavit  filed  in  Form 26  would

amount to a false declaration.  The said false declaration

cannot be said to be a defect which is not substantial.  He

was  given  an  opportunity  by  the  Returning  Officer  to

produce  the  relevant  document  in  support  of  his

declaration.  At least at that point of time he should have

informed the Returning Officer that an error crept into the

declaration.  He did not do so. The false declaration relating

to his educational qualification cannot be stated to be not of

a substantial character.  It is no more res integra that every

candidate  has  to  disclose  his  educational  qualification  to

subserve the right to information of the voter.  Having made

20

Page 21

a false declaration relating to his educational qualification,

the  Appellant  cannot  be  permitted  to  contend  that  the

declaration  is  not  of  a  substantial  character.   For  the

reasons stated supra, we uphold the findings recorded by

the  High Court  that  the  false  declaration  relating  to  the

educational  qualification  made  by  the  Appellant  is

substantial in nature.   

19. Having  answered  the  first  question  against  the

Appellant,  we  proceed  now  to  deal  with  the  next  point.

Section 100 (1) (a) to (c) deals with disqualification, corrupt

practices and improper rejection of nominations respectively

which are grounds for setting aside the election.  The sine

qua non for setting aside an election under Section 100 (1)

(d) is that the result of the election, in so far as it concerns

a  returned  candidate,  has  been  materially  affected.  The

contention  of  Mr.  Giri,  learned  Senior  Counsel  for  the

Appellant is that even if it is held that the nomination of the

appellant was improperly accepted, his election cannot be

set aside in the absence of any pleading or proof that the

result was materially affected by the improper acceptance of

21

Page 22

the nomination.    He relied upon  Magani Lal Mandal v.

Bishnu Deo  Bhandari,  reported  in  2012 (3)  SCC page

314 to contend that every defect cannot be a ground for

setting aside an election under Section 100 (1) (d) without

further proof that it had materially affected the result of the

returned candidate.  He also referred to  Shambhu Prasad

Sharma v. Charandas Mahant and Ors. reported in 2012

(11) SCC page 390 in which it was held as follows: “20. Coming to the allegation that other candidates had also not submitted affidavits in proper format, rendering

the acceptance of their nomination papers improper, we

need to point out that the appellant was required to not

only  allege  material  facts  relevant  to  such  improper

acceptance,  but  further  assert  that  the  election  of  the

returned candidate had been materially affected by such

acceptance.  There  is  no  such assertion  in  the  election

petition.  Mere  improper  acceptance  assuming  that  any

such improper acceptance was supported by assertion of

material  facts  by  the  appellant-petitioner,  would  not

disclose a cause of action to call for trial of the election

petition  on  merit  unless  the  same  is  alleged  to  have

materially affected the result of the returned candidate.”

20. There  is  no  dispute  that  an  election  cannot  be  set

aside  on  the  ground  of  improper  acceptance  of  any

22

Page 23

nomination without a pleading and proof that the result of

the returned candidate was materially affected.  The point

to be considered is whether the law as laid down by this

Court relating to the pleading and proof of the fact of the

result  of  the returned candidate being materially  affected

applies  to  a  case  where  the  nomination  of  the  returned

candidate is declared to have been improperly accepted. A

situation  similar  to  the  facts  of  this  case  arose  for

consideration of this Court in Durai Muthuswami’s case.  It

is necessary to deal with this case in detail as the Counsel

for the Appellant submitted that the said judgment is not

applicable to the facts of the present case and that finding

in the said case have to be treated as obiter.    21. The facts, in brief, of the case of Durai Muthuswami

are that the Petitioner in the election petition contested in

the election to the Tamil  Nadu Legislative Assembly from

Sankarapuram constituency.  He challenged the election of

the  First  Respondent  on  the  grounds  of  improper

acceptance  of  nomination  of  the  returned  candidate,

rejection  of  101  postal  ballot  papers,  ineligible  persons

23

Page 24

permitted to vote, voting in the name of dead persons and

double  voting.  The  High  Court  dismissed  the  election

petition by holding that the Petitioner failed to allege and

prove that the result of the election was materially affected

by the improper acceptance of the nomination of the First

Respondent as required by Section 100 (1) (d) of the Act.

The Civil Appeal filed by the Petitioner therein was allowed

by this Court in Durai Muthuswami (supra) in which it was

held as follows:  “3. Before  dealing  with  the  question  whether  the learned Judge was right in holding that he could not go

into  the  question  whether  the  1st  respondent's

nomination  has  been  improperly  accepted  because

there was no allegation in the election petition that the

election had been materially affected as a result of such

improper  acceptance,  we  may  look  into  the  relevant

provisions  of  law.  Under  Section  81  of  the

Representation  of  the  People  Act,  1951  an  election

petition  calling  in  question  any  election  may  be

presented on one or more of the grounds specified in

sub-section (1) of Section 100 and Section 101. It is not

necessary  to  refer  to  the  rest  of  the  section.  Under

Section  83(1)  (a),  insofar  as  it  is  necessary  for  the

purpose of this case, an election petition shall contain a

24

Page 25

concise  statement  of  the  material  facts  on  which  the

petitioner relies. Under Section 100(1) if the High Court

is of opinion— (a) that on the date of his election a returned candidate

was not qualified, or was disqualified, to be chosen to

fill the seat under the Constitution or this Act …. (b)-(c) * * * (d) that the result of the election, insofar as it concerns a

returned candidate, has been materially affected— (i) by the improper acceptance of any nomination, or (ii)-(iii) * * * the High Court shall declare the election of the returned

candidate  to  be  void.  Therefore,  what  Section  100

requires is  that  the High Court  before it  declares the

election of  a returned candidate  is  void should be of

opinion  that  the  result  of  the  election  insofar  as  it

concerns  a  returned  candidate  has  been  materially

affected by the improper acceptance of any nomination.

Under Section 83 all that was necessary was a concise

statement of the material facts on which the petitioner

relies. That the appellant in this case has done. He has

also  stated  that  the  election  is  void  because  of  the

improper acceptance of the 1st respondent's nomination

and  the  facts  given  showed that  the  1st  respondent

was  suffering  from  a  disqualification  which  will  fall

under  Section  9-A.  That  was  why  it  was  called

improper  acceptance.  We do  not  consider  that  in  the

circumstances  of  this  case  it  was  necessary  for  the

petitioner to have also further alleged that the result of

25

Page 26

the  election  insofar  as  it  concerns  the  returned

candidate has been materially affected by the improper

acceptance of the 1st respondent's nomination. That is

the  obvious  conclusion  to  be  drawn  from  the

circumstances of this case. There was only one seat to

be filled and there were only two contesting candidates.

If  the allegation that  the 1st  respondent's  nomination

has  been  improperly  accepted  is  accepted  the

conclusion that would follow is that the appellant would

have been elected as he was the only candidate validly

nominated. There can be, therefore, no dispute that the

result of the election insofar as it concerns the returned

candidate has been materially affected by the improper

acceptance  of  his  nomination  because  but  for  such

improper acceptance he would not  have been able to

stand for the election or be declared to be elected. The

petitioner had also alleged that the election was void

because  of  the  improper  acceptance  of  the  1st

respondent's  nomination.  In  the  case  of  election  to  a

single-member constituency if there are more than two

candidates and the nomination of one of the defeated

candidates had been improperly accepted the question

might arise as to whether the result of the election of

the returned candidate had been materially affected by

such improper reception. In such a case the question

would arise as to what would have happened to the

votes  which had been cast  in favour  of  the  defeated

26

Page 27

candidate  whose  nomination  had  been  improperly

accepted if  it  had not  been accepted.  In  that  case  it

would  be  necessary  for  the  person  challenging  the

election not merely to allege but also to prove that the

result  of the election had been materially affected by

the improper acceptance of the nomination of the other

defeated candidate. Unless he succeeds in proving that

if  the  votes  cast  in  favour  of  the  candidate  whose

nomination had been improperly accepted would have

gone in the petitioner's favour and he would have got a

majority  he  cannot  succeed  in  his  election  petition.

Section 100(1)(d)(i) deals with such a contingency. It is

not intended to provide a convenient technical plea in a

case like this where there can be no dispute at all about

the election being materially affected by the acceptance

of the improper nomination. “Materially affected” is not

a  formula  that  has  got  to  be  specified  but  it  is  an

essential  requirement  that  is  contemplated  in  this

section. Law does not contemplate a mere repetition of

a formula. The learned Judge has failed to notice the

distinction between a ground on which an election can

be  declared  to  be  void  and  the  allegations  that  are

necessary in an election petition in respect  of  such a

ground. The petitioner had stated the ground on which

the 1st respondent's election should be declared to be

void. He had also given the material facts as required

under Section 83(1)(a). We are, therefore, of opinion that

27

Page 28

the  learned  Judge  erred  in  holding  that  it  was  not

competent for him to go into the question whether the

1st  respondent's  nomination  had  been  improperly

accepted.” (Underlining ours)

22. It  is  clear  from the  above  judgment  that  there  is  a

difference between the improper acceptance of a nomination

of  a  returned  candidate  and  the  improper  acceptance  of

nomination  of  any  other  candidate.   There  is  also  a

difference  between  cases  where  there  are  only  two

candidates in the fray and a situation where there are more

than  two  candidates  contesting  the  election.  If  the

nomination  of  a  candidate  other  than  the  returned

candidate is found to have been improperly accepted, it is

essential that the election Petitioner has to plead and prove

that the votes polled in favour of such candidate would have

been  polled  in  his  favour.   On  the  other  hand,  if  the

improper  acceptance  of  nomination  is  of  the  returned

candidate, there is no necessity of proof that the election

has  been  materially  affected  as  the  returned  candidate

would  not  have  been  able  to  contest  the  election  if  his

nomination was not accepted.   It is not necessary for the

28

Page 29

Respondent to prove that result of the election in so far as it

concerns  the  returned  candidate  has  been  materially

affected by the improper acceptance of his nomination as

there were only two candidates contesting the election and

if  the  Appellant’s  nomination  is  declared  to  have  been

improperly accepted, his election would have to be set aside

without any further enquiry and the only candidate left in

the fray is entitled to be declared elected.  The judgment of

this Court in Durai Muthuswami (supra)  was referred to in

Jagjit Singh v. Dharam Pal Singh, 1995 Supp (1) SCC

422 page 429 in which it was held as follows: “21. The trial Judge has held that since there is no averment in the petition that the result of the election

was  materially  affected  by  improper  rejection  or

acceptance of votes, it is devoid of cause of action.

We are unable to agree that the absence of such an

averment in the facts of this case is fatal. As pointed

out  by  this  Court,  there  may  be  cases  where  the

obvious  conclusion  to  be  drawn  from  the

circumstances is that the result  of the election has

been materially affected and that Section 100(1)(d) of

the  Act  is  not  intended  to  provide  a  convenient

technical  plea  in  a  case  where  there  can  be  no

29

Page 30

dispute at all about the result of the election being

materially  affected  by  the  alleged  infirmity.

(See: Durai  Muthuswami v. N.  Nachiappan [(1973)  2

SCC 45 : (1974) 1 SCR 40] .) In the present case, the

appellant in the election petition has stated that he

has  lost  by  a  margin  of  80  votes  only.  From  the

various  averments  in  the  election  petition  it  was

evident  that  the  number  of  valid  votes  of  the

appellant which are alleged to have been improperly

rejected is much more than 80. From the averments

contained in the election petition it is thus obvious if

the  appellant  succeeds in  establishing his  case as

set  out  in  the  election  petition  the  result  of  this

election,  insofar  as  it  concerns  the  returned

candidate, would be materially affected.”

It was held by this Court in Vashist Narain Sharma v. Dev Chandra, reported in 1955 (1) SCR 509 as under:

“9. The  learned  counsel  for  the  respondents concedes  that  the  burden  of  proving  that  the

improper acceptance of a nomination has materially

affected  the  result  of  the  election  lies  upon  the

petitioner but he argues that the question can arise

in one of three ways: (1)  where  the  candidate  whose  nomination  was

improperly accepted had secured less votes than the

difference between the returned candidate and the

candidate securing the next highest number of votes,

30

Page 31

(2) where the person referred to above secured more

votes, and (3)  where  the  person whose nomination has been

improperly  accepted  is  the  returned  candidate

himself. It  is agreed that in the first case the result  of the

election is not materially affected because if all the

wasted  votes  are  added  to  the  votes  of  the

candidate securing the highest votes, it will make no

difference to the result and the returned candidate

will  retain  the  seat.  In  the  other  two  cases  it  is

contended that the result is materially affected.  So

far as the third case is concerned it may be readily

conceded that such would be the conclusion. But we

are not prepared to hold that the mere fact that the

wasted votes are greater than the margin of votes

between the returned candidate and the candidate

securing the next highest number of votes must lead

to  the  necessary  inference  that  the  result  of  the

election  has  been  materially  affected.  That  is  a

matter  which  has  to  be  proved  and  the  onus  of

proving  it  lies  upon  the  petitioner.  It  will  not  do

merely to say that all or a majority of the wasted

votes might have gone to the next highest candidate.

The casting of votes at an election depends upon a

variety of factors and it is not possible for any one to

predicate how many or which proportion of the votes

31

Page 32

will go to one or the other of the candidates. While it

must be recognised that the petitioner in such a case

is  confronted  with  a  difficult  situation,  it  is  not

possible to relieve him of the duty imposed upon him

by Section 100(1)(c) and hold without evidence that

the duty has been discharged. Should the petitioner

fail  to  adduce  satisfactory  evidence  to  enable  the

Court  to  find  in  his  favour  on  this  point,  the

inevitable result would be that the Tribunal would

not  interfere  in  his  favour  and  would  allow  the

election to stand.” (Underlining ours).

This Court in  Kisan Shankar Kathore v. Arun Dattatray

Sawant (supra) dealt with a situation similar to that of

this  case.   In  that  case,  the  election  of  the  returned

candidate was successfully challenged on the ground of

non-disclosure of material information.  The appeal filed

by the returned candidate was dismissed by this Court

by observing as follows: “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,

32

Page 33

namely,  such  a  candidate  was  not  entitled  to

contest and the election is void.”  

23. Mere  finding  that  there  has  been  an  improper

acceptance  of  the  nomination  is  not  sufficient  for  a

declaration that the election is void under Section 100 (1)

(d).   There has to be further pleading and proof that the

result  of  the  election  of  the  returned  candidate  was

materially affected.   But,  there would be no necessity of

any  proof  in  the  event  of  the  nomination  of  a  returned

candidate  being  declared  as  having  been  improperly

accepted,  especially  in  a  case  where  there  are  only  two

candidates  in  the  fray.   If  the  returned  candidate’s

nomination is declared to have been improperly accepted it

would mean that he could not have contested the election

and that the result of the election of the returned candidate

was materially affected need not be proved further.   We do

not find substance in the submission of Mr. Giri that the

judgment in Durai Muthuswami (supra) is not applicable to

the  facts  of  this  case.  The  submission  that  Durai

Muthuswami is a case of disqualification under Section 9-A

33

Page 34

of the Act and, so, it is not applicable to the facts of this

case  is  also  not  correct.   As  stated  supra,  the  election

petition  in  that  case  was  rejected  on  the  ground  of

non-compliance of Section 100 (1) (d).  The said judgment

squarely applies to this case on all fours.  We also do not

find force in the submission that the Act has to be strictly

construed and that the election cannot be declared to be

void under Section 100 (1) (d) without pleading and proof

that the result of the election was materially affected.  There

is no requirement to prove that the result of the election of

the  returned  candidate  is  materially  affected  once  his

nomination is declared to have been improperly accepted.     24. For  the  aforementioned  reasons,  the  Civil  Appeal  is

dismissed.  No costs.  

Civil Appeal No. 2829 of 2016

25.  This appeal is filed by the Petitioner in the election

petition  challenging  that  part  of  the  judgment  dated

29.02.2016 of the High Court Manipur at Imphal, by which

the  relief  that  he  should  be  declared  to  be  elected  was

rejected.  The  Appellant  contested  the  election  as  a

34

Page 35

candidate  of  the  Nationalist  Congress  Party  (NCP).

Respondent  No.1  was  declared  to  have  been  elected  on

28.01.2012.  The election of the First Respondent was set

aside by the High Court in the election petition filed by the

Appellant.   The Appellant also sought for a relief  that he

should be declared to have been elected.  Such relief was

rejected by the High Court.  Hence, this appeal.  

26. After  the  result  of  the  election  was  declared  on

28.01.2012,  the  Appellant  resigned from NCP and joined

Bhartiya Janta Party  (BJP).   To a question posed by the

Court during the recording of  his evidence, the Appellant

stated that he tendered resignation from NCP in the latter

part of 2013, that he joined BJP and he continued to be a

member of the BJP. In January, 2016, the Appellant filed

an application for amendment to the election petition.  He

intended  to  insert  additional  submissions  relating  to  his

expulsion from NCP on 23.12.2013 and the representation

made by him to the President NCP Manipur to cancel the

expulsion order.  He also wanted to bring on record the fact

that his enrolment to the membership of BJP was rejected

35

Page 36

on 18.01.2016.  He further stated in the application that

the order of expulsion by the NCP was revoked by an order

dated 21.01.2016.

27. The  arguments  in  the  election  petition  filed  by  the

Appellant were concluded on 25.02.2016.  The High Court

recorded a finding in the impugned judgment that all the

pending miscellaneous applications were disposed of with

the consent of both sides and the election petition was to be

adjudicated on the basis of existing material on record.  As

the miscellaneous application filed by the Appellant was not

considered, the High Court decided the matter on the basis

of  the  material  on  record  which  clearly  showed  that  the

Appellant  resigned  from  NCP  and  joined  BJP.   After  a

careful  consideration of  the  material  on  record,  the  High

Court  refused  to  grant  the  declaration  as  sought  by  the

Appellant.  The High Court held that having joined BJP, the

Appellant was not entitled for a declaration as he contested

the  election in 2012 on behalf  of  NCP.   The High Court

highlighted  the  fact  that  the  Appellant  will  be  an  MLA

belonging to BJP, if declared elected after having contested

36

Page 37

the election on behalf of the NCP.  Taking into account the

spirit  of  law as expressed in paragraph no.  2 of  the 10 th

Schedule of the Constitution of India the High Court did not

grant the relief sought by the Appellant that he should be

declared elected.  

28. Ms.  Meenakshi  Arora,  learned  Senior  Counsel

appearing  for  the  Appellant  submitted  that  the  10th

Schedule  to  the  Constitution  is  not  applicable  to

adjudication  of  an  election  petition.    She  relied  upon

Section  53  (2)  of  the  Act  to  contend  that  the  Appellant

should  be  declared  as  duly  elected  as  he  was  the  only

person  remaining  in  the  fray  after  the  election  of

respondent/returned candidate was declared void.   Section

101 of the Act provides for declaration of the Petitioner to

have been duly elected if the High Court is of the opinion

that the Petitioner received majority of the valid votes.  

29. According to Section 80 (A) of the Act, the High Court

will have the jurisdiction to try an election petition.  It is

well  settled  law that  the  High  Court  hearing  an  election

petition is not an ‘authority’ and that it remains the High

37

Page 38

Court while trying an election petition under the Act.  (See

T.  Deen  Dayal  v.  High  Court  of  A.P.,  1997  (7)  SCC

535 at page 540.  This Court in  Hari Shanker Jain v.

Sonia Gandhi, 2001 (8) SCC 233 at page 244 upheld the

decision  of  a  Full  Bench  of  the  Rajasthan  High  Court

wherein  it  was  decided  that  the  jurisdiction  of  the  High

Court  to  try  an  election  petition  is  not  by  way  of

constituting a special jurisdiction and conferring it upon the

High Court.  It is an extension of the original jurisdiction of

the High Court to hear and decide the election disputes.  It

is  clear from the above judgments of  this  Court  that  the

inherent power of the High Court is not taken away when

the election disputes are adjudicated.   Section 53 (2) is a

power  conferred  on  the  Returning  Officer  to  declare  a

candidate elected when the number of candidates is equal

to the number of seats to be filled. The power of the High

Court is not fettered by Section 53 (2).  The High Court has

taken into consideration an anomalous situation that would

arise by a candidate belonging to one party being declared

elected after having crossed the floor.  We are in agreement

38

Page 39

with the High Court and we do not intend to interfere with

the discretion exercised by the High Court.    

30. For  the  aforesaid  reasons,  the  Civil  Appeal  is

dismissed.  No order as to costs.                                         

.…............................J.                  [ANIL R. DAVE]

               ................................J. [L. NAGESWARA RAO]

New Delhi, October 28, 2016

39