Mangani Lal Mandal Vs.
Bishnu Deo Bhandari
[Civil Appeal No(s).
10728 of 2011]
J U D G M E N T
R.M. Lodha, J.
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.
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
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.
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
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 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.
have heard Mr. A. Sharan, learned senior counsel for the appellant, and Mr.
S.B.K. Manglam, learned counsel for the respondent.
Appeal deserves to be allowed on the short ground which we indicate immediately
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 (2002) 5 SCC 294 (2003) 4
SCC 399CIVIL APPEAL NO(s). 10728 OF 2011 4reproduced 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
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"
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-CIVIL APPEAL NO(s). 10728 OF 2011 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 CIVIL
APPEAL NO(s). 10728 OF 2011 affected. The view that we have taken finds support
from the three decisions of this Court in (1) Jabar Singh Vs. Genda Lal (2) L.R.
Shivaramagowda and Others Vs. T.M. Chandrashekhar (dead) by LRs. and Others. and
(3) Uma Ballav Rath (Smt.) Vs. Maheshwar Mohanty (Smt) and others.
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 357CIVIL APPEAL NO(s). 10728 OF 2011
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.
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).
(SUDHANSU JYOTI MUKHOPADHAYA)