TaxTMI 
TaxTMI 
2014 (4) TMI 1119
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....mine the facts of this case. The appeal (@ SLP(C) No. 29882 of 2011) has been filed by the candidate who was elected in the Assembly elections in the State of Maharashtra. The results of the election to the Assembly were declared on 22.10.2009. The Respondent No. 1 was one of the candidates who contested the said election as against the Appellant. The Appellant was declared elected and the Respondent No. 1 was an unsuccessful candidate. As per the provisions of the Representation of the People Act, 1951 and the Conduct of Election Rules, 1961 (hereinafter called "the Act and the Rules"), within one month from the date of publication of the results, a statement of election expenses has to be filed by the candidate with the District Election Officer (hereinafter called "DEO"). The Appellant stated to have filed his statement of election expenses on 17.11.2009, i.e., within one month of the date of election. It is also brought to our notice that on 24.11.2009, the DEO, Nanded forwarded his report to the Election Commission of India and that according to the Appellant, nothing adverse was stated in the said report. However, on 02.12.2009, the Respondent No. 1 filed a complaint with the....
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.... No. 1, the successful election of the Appellant was the subject matter of challenge in an Election Petition, which was dismissed by the Election Tribunal (High Court) for want of material particulars and upheld by this Court in Civil Appeal No. 9271 of 2012, there is total lack of jurisdiction for the Election Commission to deal with said issue all over again. The learned Senior Counsel also brought to our notice the old Section 7(c) of the 1950 Act, which was a provision for disqualification prior to the 1966 amendment by which Section 10A was introduced and also referred to the earlier judgment of this Court reported in Sucheta Kripalani v. S.S. Dulat and Ors. - : AIR 1955 SC 758, as well as the subsequent decision reported in L.R. Shivaramagowda and Ors. v. T.M. Chandrashekar (D) by L.Rs. and Ors. - : 1999 (1) SCC 666. The learned Senior Counsel then contended that when the Election Petition, as preferred Under Section 86 of the Act was dismissed for want of material particulars, which is a binding judgment, having regard to the principles laid down in the decisions of this Court reported in Dipak Chandra Ruhidas v. Chandan Kumar Sarkar - : 2003 (7) SCC 66 and Azhar Hussain ....
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....ers in an Election Petition. According to learned Senior Counsel, the law declared in Sucheta Kripalani (supra) which held the field prior to the various amendments introduced viz to Sections 7, 8, 8A, 10, 10A, 11, 77, 85, 101(b) and 126, continue to hold good. The learned Senior Counsel also finally brought to our notice the amended Rule 89 after the 1966 amendment in which Sub -rule (5) was introduced. This Rule empowers the Election Commission to take a decision in the event of the contesting candidates failing to lodge their account of election expenses within the time and in the manner required by the Act, as well as the Rules by which the Election Commission can call upon the candidate concerned to show cause why he should not be disqualified Under Section 10A for his failure. The learned Senior Counsel then referred to the order impugned in the appeal (@ SLP(C) No. 29882 of 2011) passed by the Election Commission holding that the Election Commission is fully empowered to pass an order of disqualification for the failure of the elected candidate to lodge the account as per the Act and the Rules. ( 7. ) THE sum and substance of the submission of Mr. Gopal Subramani....
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....by exercising its power Under Section 10A, the consequences would be very severe. (e) The Election Commission, who was impleaded as a party in the election petition itself sought for its deletion, that the Complainants Mukhtar Abbas Naqvi or Kirit Somaiya, neither being voters nor candidates who lost in the election, had no locus standi to seek for an enquiry Under Section 10A, inasmuch as an election petition can only be as against an elected candidate. Further, the scope of holding any enquiry by the Election Commission can be referable only to Article 191(1)(e) read with Article 192(2) of the Constitution and not otherwise by invoking Section 10A of the said Act. (f) The scope of invalidating an election is available Under Section 100(1)(d)(iv) of the said Act which would cover all illegality. (g) Law of the election being a special law, its intendment as well as effects will have to be found in the given law and not outside of it. The doctrine of equitable consideration will not apply and where the Constitution leaves any ambiguity, the benefit of the doubt should be given to the subject as against the legislature. (h) The power of Elec....
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....terpretation of Section 10A, which is purely a legal question, in the light of the judgment of this Court in P. Nallammal and Anr. v. State Rep. by Inspector of Police - : (1999) 6 SCC 559 such a stand of the Union of India cannot be faulted. The learned Additional Solicitor General contended that Section 10A only covers some procedural aspects and not substantive aspects. After referring to Section 10A and the expressions used in the said Section, namely, 'manner' the learned Additional Solicitor General contended that the said expression has to be interpreted only as a mode or a procedure and not a substance of correctness of the return to be filed. The learned Additional Solicitor General after referring to the dictionary meaning of the expression 'manner', relied on a decision of this Court reported in Sales Tax Officer v. K.I. Abraham - : 1967 (3) SCR 518 wherein, this Court held that the expression 'manner' only refers to the mode and not substance. His contention was that since the provision is penal in nature, it calls for strict interpretation. The learned Additional Solicitor General, therefore, contended that when such an interpretation is made to....
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....O the Election Commission can exercise its powers Under Section 10A. On the other hand, the satisfaction which could be arrived at by the Election Commission Under Section 10A may be based on a report of the DEO or after hearing the parties or upon an enquiry by the Election Commission as per Rule 89, which uses the expression 'as it thinks fit'. (d) The present allegation against the Appellant is paid news and advertisements, which were not accounted for and which having not been disclosed by the Appellant in the return, have now come to light through the Press Council and other sources. Therefore, it could not have been within the knowledge of the DEO in order to state that it is only at the instance of the DEO that the Election Commission can hold any enquiry Under Section 10A of the Act. (e) The scope of jurisdiction of the Election Tribunal in considering the validity of the Election of a member is different from the power of disqualification that can be passed by the Election Commission Under Section 10A and, therefore, the dismissal of the Election Petition for want of particulars cannot be a ground to thwart the exercise of the power and jurisdicti....
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....ccording to him, while lodgment is mere form, maintenance of accounts is one of substance. The learned Senior Counsel submitted that Section 78 along with Rules 86(3) and 89, only talk of lodgment of account and not correctness of the account. According to the learned Senior Counsel, after a reading of paragraph 22 of the L.R. Shivaramagowda (supra) judgment, it can only be said that failure of lodgment is a matter of form and the correctness or otherwise of lodgment of accounts was not spelt out. The learned Senior Counsel further contended that Section 77 only talks of maintenance of accounts. It is a matter of substance which will attract Section 123(6) in which event the issue would be outside the jurisdiction of the Election Commission. The learned Senior Counsel relied upon certain decisions of this Court in Somnath Sahu v. The State of Orissa and Ors. - : 1969 (3) SCC 384 and Common Cause (A Registered Society) v. Union of India and Ors. - : (1996) 2 SCC 752 in support of his submissions. The learned Senior Counsel apart from arguing about the scope of jurisdiction of the Election Commission Under Section 10A of the Act also challenged the order of the Election Commission da....
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....hat the Election Commission has got every jurisdiction to hold an enquiry and pass appropriate orders of disqualification and the remedy has also been provided for Under Section 11 for the Election Commission to pass appropriate orders for stated reasons to reverse the order of disqualification. ( 13. ) MR . Ashok Desai, learned Senior Counsel who appeared for the Election Commission, prefaced his submission by stating that free and fair election is the basic feature of our democracy, which again is the basic structure of the Constitution, that Under Article 324 of the Constitution, the Election Commission is not only invested with plenary powers but has got a constitutional obligation to organize a free and fair election and that Under Section 10A, the power of the Election Commission is much wider when it comes to the question of disqualification in contrast to an election petition, where the validity of an election can be challenged. The learned Senior Counsel referred to the nature of allegations levelled against the Appellants in the above appeals, namely, Mr. Ashok Shankarrao Chavan, Ms. Madhu Kora and Mr. Umlesh Yadav, wherein the complaint disclosed the enormous unaccoun....
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.... parties, it would be necessary to find out whether the impugned order of the Election Commission is correct or not. For this, the various provisions of the Constitution as well as the relevant provisions as they originally existed prior to 1956 and 1966, the amendments made to the Act and the provisions which are existing as on date are required to be noted. In fact, the various provisions under the Act both prior to the 1956 and 1966 amendments and the provisions which are existing as on date, were adverted to by the learned Counsel appearing for their respective parties, as there is a need to find out the implication of those provisions. The purpose is to find out an answer to the question posed for consideration, namely, whether Under Section 10A of the Act, the Election Commission has been empowered to hold an enquiry to ascertain the correctness or otherwise of the election expenses incurred by a returned candidate for the purpose of passing the order of disqualification, either at the instance of the candidate who also contested in the said election or by any other person or based on any other information received by the Election Commission through some reliable sources. For....
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....sp;(b) xxx xxx xxx (c) xxx xxx xxx (d) xxx xxx xxx (e) If he is so disqualified by or under any law made by Parliament. 192. Decision on questions as to disqualifications of members. (1) If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in Clause (1) of Article 191, the question shall be referred for the decision of the Governor and his decision shall be final. (2) Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion. 324. Superintendence, direction and control of elections to be vested in an Election Commission. (1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice -President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission). 327. Power of Parliament to make provisio....
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.... have elapsed from the date by which the return ought to have been lodged or the Election Commission has removed the disqualification; Section 8. Savings (a) xxx xxx xxx (b) a disqualification Under Clause (c) of that section shall not take effect until the expiration of two months from the date by which return of election expenses ought to have been lodged or of such longer period as the Election Commission may in any particular case allow; Section 143. Disqualification arising out of failure to lodge return of election expenses. - If default is made in making the return of the election expenses of any person who has been nominated as a candidate at an election to which the provisions of Chapter VIII of Part V apply, or if such a return is found, either upon the trial of an election petition under Part VI or by any court in a judicial proceeding to be false in any material particular, the candidate and his election agent shall be disqualified for voting at any election for a period of five years from the date by which the return was required to be lodged. Section 144. Removal of disqualifications. - Any disqualification under this Chapter may be....
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.... as required Under Articles 103 and 192 of the Constitution is set out. Sections 146A to 146C prescribes the procedure to be followed by the Election Commission while holding the enquiry Under Section 146. Apart from the above provisions in the Act, Rules 86, 87, 88, 89 and 90 in Part VIII of the Rules are required to be noted. The relevant statutory provisions in the Act and the Rules which are required for our purpose are, therefore, extracted hereunder: The Representation of the People Act, 1951 Section 7. Definitions. - (a) xxx xxx xxx (b) "disqualified" means disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State. Section 10A. Disqualification for failure to lodge account of election expenses. - If the Election Commission is satisfied that a person - (a) Has failed to lodge an account of election expenses, within the time and in the manner required by or under this Act, and (b) Has no good reason or justification for the failure, The Election Commission shall, by order published in the Official Gazette, declare him to be disqualified an....
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....urisdiction to try an election petition shall be the High Court. (2) Such jurisdiction shall be exercised ordinarily by a single Judge of the High Court and the Chief Justice, shall, from time to time, assign one or more Judges for that purpose: Provided that where the High Court consists only of one Judge, he shall try all election petitions presented to that Court. (3) xxx xxx xxx Section 81. Presentation of petitions. -(1) 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 to the High Court by any candidate at such election or any elector within forty -five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates. Explanation. In this subsection, "elector" means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not. (3) xxx xxx xxx Section 83. Contents of petition. - (1) An electi....
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.... as evidence; (c) Receiving evidence on affidavits; (d) Requisitioning, any public record or a copy thereof from any Court or officer (e) Issuing commissions for the examination of witnesses or documents. (2) The Commission shall also have the power to require any person, subject to any privilege which may be claimed be that person under any law for the time being in force., to furnish information on such points or matters as in the opinion of the Commission may be useful for or relevant to, the subject -matter of the inquiry. (3) The Commission shall be deemed to be a civil court and when any such offence, as is described in Section 175, Section 178, Section 179, Section 180 or Section 228 of the Indian Penal Code (45 of 1860) is committed in the view or presence of the Commission, the Commission may after recording the facts constituting the offence and the statement of the accused as provided for in the Code of Criminal Procedure, 1898 (5 of 1898) to forward the case to a magistrate having jurisdiction to try the same and the magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as....
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....o his notice board, specifying - (a) the date on which the account has been lodged; (b) the name of the candidate; and (c) the time and place at which such account can be inspected. Rule 88. Inspection of account and the obtaining of copies thereof. - Any person shall on payment of a fee of one rupee be entitled to inspect any such account and on payment of such fee as may be fixed by the Election Commission in this behalf be entitled to obtain attested copies of such account or of any part thereof. Rule 89. Report by the district election officer as to the lodging of the account of election expenses and the decision of the Election Commission thereon. - (1) As soon as may be after the expiration of the time specified in Section 78 for the lodging of the accounts of election expenses at any election, the 1 [district election officer] shall report to the Election Commission - (a) the name of each contesting candidate; (b) whether such candidate has lodged his account of election expenses and if so, the date on which such account has been lodged; and (c) whether in his opinion such account has been lodged within ....
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.... Rule 90. Maximum election expenses. - The total of the expenditure of which account is to be kept Under Section 77 and which is incurred or authorized in connection with an election in a State or Union territory mentioned in column 1 of the Table below shall not exceed - (a) in any one parliamentary constituency of that State or Union territory, the amount specified in the corresponding column 2 of the said Table; and (b) in any one assembly constituency, if any, of the State or Union territory, the amount specified in the corresponding column 3 of the said Table. ( 19. ) HAVING noted the various Articles of the Constitution as well as the provisions of the Act, it will be worthwhile to understand the whole scheme of the above articles and provisions before making any attempt to find out the scope and ambit of Section 10A of the Act. Article 101(3)(a) will have to be read along with Article 102(1)(e). Article 101(3)(a) merely states about the consequences that would follow if a Member of either House of Parliament suffers disqualification as provided Under Article 102(1)(e), namely, that the seat would thereupon become vacant in the Parliament. The pu....
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....y law made by the appropriate legislature. While Articles 101 to 103 and 191 to 192 deals with the disqualification of an elected member either to the Parliament or to the State Legislature, Article 329(b) relates to the validity of a member elected to any constituency in an election held in accordance with law and such validity can be examined only by a prescribed authority under the law made by the appropriate legislature. Reading Article 329(b) and Sections 80 to 116 of the Act together, the position emerges that the status of a validly elected candidate in an election can be called in question only before the Election Tribunal (High Court) by way of an Election Petition and such Election Petition to be decided by the Election Tribunal (High Court) in the manner prescribed under the above referred to provisions by following the procedures laid down therein. It further emerges that the validity of an election to either of the House of Parliament or the State Legislature cannot be called in question in any other manner other than what has been prescribed under the provisions of the Act, as has been set out in Sections 80 to 116 of the Act. Apart from the above Constitutional manda....
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....ause (c) of Section 7, cannot take effect unless the expiration of two months from the date by which return of the election expenses ought to have been lodged or such longer period as the Election Commission may in any particular case allow. A reading of Sections 7(c) and 8(b) as it existed then, vested no specific authority with the Election Commission or for that matter with any other authority as to how a disqualification can be declared for the failure to lodge a return of the election expenses within the time and in the manner required by or under the Act. ( 23. ) IN fact, the subsequent amendment to Section 7(c) only related to the expiration of a period of five years having been altered as three years and in Section 8(c) it is stated that the expiration of two months period would start from the date on which the Election Commission decided that the account of election expenses has not been lodged within the time and in the manner required by or under this Act. Therefore, a conspicuous reading of Sections 7(c) and 8(b), as it originally existed, and after its amendment under Act 27 of 1956, remained the same and the only improvement made was that the decision as regards th....
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.... Under Rule 90 as stipulated Under Section 77(3). ( 26. ) THE next step is lodging of such an account which was maintained as stipulated Under Section 77 read with Rule 90. Section 78 of the Act mandates that every contesting candidate in an election should within 30 days from the date of election of the returned candidate, lodge with the DEO an account of his election expenses, which should be a true copy of the account kept by him or by his election agent as required Under Section 77. The corresponding rules are Rules 87, 88 and 89 of the Rules. Under Rule 87, within two days from the date on which the account of election expenses is lodged by candidate, as stipulated Under Section 78, the DEO should cause a notice to be affixed in the notice board, specifying the date on which the account was lodged, the name of the candidate and the time and place at which such account could be inspected. Under Rule 88 any person would be entitled on payment of a fee of Rs. 1 to inspect any such account and on payment of such fee that may be fixed by the Election Commission, obtain attested copies of such account or any part thereof. Reading Section 78 and Rules 87 and 88, the intention of t....
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....ired under the Act, it will have to be stated that the manner required would certainly include the true and correct accounts to be maintained, a copy of which alone can be stated to mean having been lodged in the manner required. In fact, Under Sub -rule (2) of Rule 89, the DEO if on verification found that the lodging of the account was not in the manner required, should send a report to that effect to the Election Commission along with the accounts lodged by the candidate concerned. The DEO should also publish a copy of his report in the notice board. Under Sub -rule (4) of Rule 89, after the receipt of the report referred to in Sub -rule (1), the Election Commission has to again consider the same and decide whether any contesting candidate failed to lodge the account of election expenses within the time and in the manner required by or under the Act and the Rules. ( 28. ) UNDER Sub -rule (5) of Rule 89 when the Election Commission decides that a contesting candidate failed to lodge his account of election expenses within time and in the manner required by the Act as well as the Rules, it should by notice in writing call upon the candidate to show cause why he should not be di....
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....ch account is a true and correct account of the actual expenses incurred for the election inasmuch as the Act as well as the Rule makes it clear that such furnishing of the account is in the manner required under the Act. ( 30. ) IN our considered opinion if such a onerous responsibility has been imposed on the Election Commission while scrutinizing the details of the accounts of the election expenses submitted by a contesting candidate, it will have to be stated that while discharging the said responsibility, every care should be taken to ensure that no prejudice is caused to the contesting candidate. The Election Commission should also ensure that no stone is left unturned before reaching a satisfaction as to the correctness or the proper manner in which the lodgment of the account was carried out by the concerned candidate. If such a meticulous exercise has to be made as required under the law, it will have to be held that the onerous responsibility imposed on the Election Commission should necessarily contain every power and authority in him to hold an appropriate enquiry. Only such an exercise would ensure that in ultimately arriving at the satisfaction for the purpose of e....
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....ut by the Election Commission with utmost care and caution and not by merely finding that there is a statement of account claimed to be a true copy of the election expenses maintained by the candidate and that it was lodged with the DEO in the appropriate format. In such an event, the concerned candidate can go scot -free even in a case where it can be brought to the notice of Election Commission that apart from the expenses disclosed in the statement of expenses lodged with the Election Commission, the candidate concerned had incurred various other expenses in a clandestine manner by adopting various manipulations and thereby, violating the requirement of law in particular Section 77(1) and (3) of the Act and thereby in effect not only cheat the electorate concerned, but even a constitutional authority in whom a very heavy responsibility has been invested Under Article 324(1) of the Constitution. In fact, the requirement of an enquiry to be made by the Election Commission at the instance of the President of the country Under Article 103 and in the case of Members of Parliament Under Article 192 by the Governor of the State in the case of Member of Legislative Assembly of the State....
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....imposed in the matter of incurring election expenses with a view to woo the electorate concerned and thereby, gaining their votes in their favour by corrupt means viz by purchasing the votes. Therefore, this Court cannot turn a Nelson's eye and state that Section 77(1) and (3), as well as 78 would be relevant only for the purpose of ascertaining the corrupt practices Under Section 123(6) of the Act and that such requirement of incurring bona fide and correct expenditure need not be a requirement for ascertainment for the Election Commission while exercising its powers Under Section 10A of the Act. In fact, ascertainment of the requirement Under Section 77(3) viz the expenses incurred, do not exceed the limit prescribed and can be made both for the purpose of an enquiry Under Section 10A, as well as in the event of a candidate exceeding the limit as a corrupt practice for the purpose of invalidating the election. Therefore, the requirement Under Section 77(3) has got twin objectives to be fulfilled. ( 33. ) ONE other relevant provision under the Act is Section 146 falling under Chapter IV of Part VIII. Section 146 is relatable to Articles 103 and 192 of the Constitution. As w....
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....resident of India or the Governor of the concerned States. In our considered opinion, therefore, the exercise to be made Under Section 10A of the said Act would certainly include the requirement of not a farce of an enquiry but a true and complete one to determine whether the return of election expenses by an elected candidate is a true/correct or false/bogus return and that would not depend upon the decision of the Election Tribunal (High Court), which is provided under the Act for validating the election of a returned candidate on very many grounds set out in Section 123 of the Act, including the one Under Section 123(6) which contemplates the compliance of the requirement Under Sections 77 and 78 of the Act. However, it will have to be stated that if the said issue was squarely dealt with by the Election Tribunal (High Court) based on the entire materials that were also placed before the Election Commission and the Election Tribunal (High Court) had dealt with the said issue in detail and recorded -a finding after examining such materials threadbare, there is no reason for the Election Commission to give due weight to such a finding of the Election Tribunal (High Court) while ex....
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.... the above complaints, the Appellant was called upon to submit his comments by the Commission on 16.01.2010. The Appellant submitted his reply on 29.01.2010 refuting all the allegations of the Complainants. The reply was forwarded to the Complainants on 5th and 9th February, 2010 and the Complainants filed their rejoinders in February and March 2010. The Commission decided to hear the parties on 11.06.2010. In the meanwhile, the Commission also obtained the comments of the Chief Electoral Officer, Maharashtra about the four newspapers and the allegations of publishing 'paid news' relating to the Appellant. The impugned order of the Election Commission states that all the four newspapers denied the allegation of any payment having been made to them by the Respondent for the publication of the alleged 'paid news'. According to the newspaper establishments, the alleged 'paid news' were in fact news or editorials and supplements published by them gratuitously as they had links with or leanings towards the Congress Party and the Appellant. When the matter was posted for hearing, a preliminary objection was raised questioning the jurisdiction of the Election Commi....
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....ause notice to the him Under Rule 89(5) read with Section 10A, stating therein that they were in further receipt of a report from the Income Tax Department, which alleged that prima facie, the account filed by the Appellant was incorrect and as to why he shouldn't be disqualified. The Election Commission along with this notice, sent a copy of the alleged summary of findings by the Income Tax Department, which showed the election expenses incurred to the tune of Rs. 9,32,56,259/ -. The authorized total expenditure of which account is to be kept and can be incurred in one parliamentary constituency in the state of Jharkhand as per Section 77 read with Rule 90 is Rs. 25,00,000/ -. The Appellant replied to this notice by stating that as he was in jail and was having severe health issues, and therefore, requested the Election Commission to grant him more time for inspecting the documents, to which a period of 20 days was granted. The Election Commission subsequently passed an order on 02.02.2011 in the similar and identical case of Ashok Shankarrao Chavan, concluding that the Commission has undoubted jurisdiction Under Section 10A to go into the question of the alleged incorrectness....
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.... items, in reality it was only an advertisement. It further held that the newspapers Amar Ujala and Dainik Jagaran were guilty of ethical violation. Subsequently, after receiving the order dated 31.03.2010 from the Press Council of India vide letter dated 04.05.2010, the Commission called for a report from the Chief Electoral Officer U.P. regarding expenditure on the advertisement dated 17.04.2010 to which the Chief Electoral Officer vide his letter dated 10.05.2010 forwarded the report dated 09.05.2010 of the DEO. The DEO in his report had stated that the expenditure was not clear from the returns submitted by the Appellant, The Election Commission thereby issued a notice dated 22.06.2010 to the Appellant stating that in the account of the election expenses, the expenditure incurred for the two advertisements dated 17.04.2007 were not reflected and thereby, attracted disqualification Under Section 10A for a period of three years. The Appellant thereby submitted a reply on 18.07.2010 stating that the publication of the above items in the newspapers were neither ordered by the Appellant nor by her election agent. On 19.08.2010, the Election Commission requested the newspapers to sen....
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....s, it must be stated that such an authority who is in ultimate control in the matter of holding of the elections should be held to be invested with the widest power of its kind specified in the Act. Therefore, when it comes to the question of interpretation of the extent of such power to be exercised by the said authority, we are convinced that the Court should have a very liberal approach in interpreting the nature of power and jurisdiction vested with the said authority, namely, the Election Commission. This view of ours is more so apt in the present day context, wherein money power virtually controls the whole field of election and that people are taken for a ride by such unscrupulous elements who want to gain the status of a Member of Parliament or the State Legislature by hook or crook. ( 38. ) IN this context, we also keep in mind the Preamble to the Constitution which in liberal words states that the people of India having solemnly resolved to constitute India into a sovereign, social, secular, democratic, republic and to secure to all citizens justice, liberty, equality and fraternity. In such a large democratic country such as ours, if purity in elections is not maintai....
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....he Respondents that the scope and jurisdiction of the Election Tribunal (High Court) is entirely different from the one conferred on the Election Commission Under Section 10A of the Act and, therefore, the dismissal of the Election Petition preferred by one of the Complainant's cannot be a ground to reject the complaint, which is required to be dealt with Under Section 10A of the Act. We find force in the submission of the learned Counsel for the Respondents. As was pointed out by us earlier, the challenge to an election by way of an Election Petition is provided for Under Article 329(b) of the Constitution and the manner in which such Election Petition is to be filed and the procedure to be followed were all set out in Sections 80 to 116 of the Act. ( 39. ) IT is true that Article 329(b) specifically stipulates that no election can be called in question except by way of an Election Petition. When we peruse the various stipulations contained in Sections 80 to 116 of the said Act, we find that Under Section 80 it is reiterated that no election shall be called in question except by an Election Petition presented in accordance with the provisions of this Part, namely, Part VI o....
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....has been specified in Sections 77 and 78 of the Act in an Election Petition. Therefore, simply because such an issue may form part of a corrupt practice as provided Under Section 123(6) and the failure may be in contravention of Section 78 of the Act, it may also be one of the grounds in challenging the successful election of a candidate concerned in an Election Petition. On that score, it cannot be held that the area of disqualification to be considered by the Election Commission, Under Section 10A, is fully covered in an Election Petition and thereby, the power and jurisdiction of the Election Commission would stand excluded. It cannot therefore, be contended that once the Election Petition having been rejected for want of particulars, which order has become final, a complaint Under Section 10A cannot be pursued. We therefore, reject the said contention raised on behalf of the Appellant. The next submission of Mr. Gopal Subramanium, learned Senior Counsel for the Appellant was that the provision for disqualification was originally incorporated in Section 7(c) of the 1950 Act, which has now been restructured in Section 10A, that the provision of Section 7(c) was interpreted by ....
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....thin the time and in the manner required by or under the Act can be examined by an Election Commission in a manner known to law. Therefore, an order of disqualification to be passed based on such examination or enquiry should precede such an order. On the contrary, as has been explained in detail about the scope of Section 10A read along with Section 77(1) and (3), Section 78 and Rules 86 to 90, we find that the failure to lodge an account of election expenses within the time and in the manner required by or under the Act would result in serious consequences and consequently, such a failure would result in an order of disqualification to be passed by the Election Commission. When we read Section 10A as compared to Sections 7(c) and 8(b), as it originally stood, Section 10A in its very opening words, empowers the Election Commission on being satisfied about the defects in the lodging of the account of election expenses as contemplated Under Section 77(1) and (3) read along with Section 78 and the Rules 86 to 90, to pass an order and publish it in the official gazette, as regards the disqualification period of which is prescribed as three years from the date of the order. Such a deta....
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....plication of Section 10A has stated the legal position in uncontroverted terms as under in paragraph 22: 22........in our opinion, Sub -sections (6) of Section 10A takes care of the situation inasmuch as it provides for lodging an account of election expenses in the manner required by or under the Act. Section 77(2) provides that the account shall contain such particulars as may be prescribed. Rule 86 of the Conduct of Election Rules provides for the particulars to be set out in the account. The said rule prescribes that a voucher shall be obtained for every item of expenditure and for lodging all vouchers along with the account of election expenses. Rule 89 provides that the District Election Officer shall report to the Election Commission, the name of each contesting candidate, whether such candidate has lodge his account of election expenses, and if so, the date on which such account has been lodged and whether in his opinion, such account has been lodged within that time and in the manner required by the Act and the Rules. That rule enables the Election Commission to decide whether a contesting candidate has failed to lodge his account of election expenses within the t....
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....d the power of the Election Commission Under Section 10A, it will have to be stated that the said submission no longer survives for consideration. The same is, therefore, rejected. ( 45. ) THE other submission of Mr. Gopal Subramanium, learned Senior Counsel was on the issue of locus standi. The contention was that the Complainants were neither voters nor losing candidates, that the legislative scheme does not provide for an opportunity to a person who wishes to oppose the explanation offered by the candidate and that though Section 10A applies to all candidates, the Election Petition can be filed only against an elected candidate. It was therefore contended that the complainants have no way to invoke Section 10A and that if at all any enquiry can be held by the Election Commission, it can be only Under Articles 103 or 192 at the instance of the President of India or the Governor of the State. ( 46. ) TO counter the said submission, it was contended by Mr. Jayant Bhushan, Ms. Pinki Anand and Mr. Ashok Desai, learned Senior Counsel and Mr. Prashant Bhushan, learned Counsel that such a restricted meaning cannot be applied to Section 10A. The learned Counsel for the Respondents ....
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....kind of illegality or irregularity indulged in by the candidates concerned, irrespective of the various personnel such as Election officers, security personnel, etc. functioning exclusively for the purpose of holding the election under the control of the Election Commission. Therefore, such instances of illegalities committed by the candidates contesting in the election in certain areas of the constituency may come to the notice of some individuals, which may have a serious ramification relating to the conduct of the candidate by abusing the process of the election with the aid of money power available with such candidate. Therefore, if someone is able to assert such misuse of funds in the process of election by a candidate by making an inspection Under Rule 88 and if the concerned individual finds out that such misuse of funds had taken place, which was not disclosed in the statement of account of election expenses, he will have every right to bring it to the notice of the Election Commission and the very purport of providing such a right Under Rule 87 and 88 when read along with Section 10A makes it clear that he would have every locus to prefer a complaint. Also in the course of....
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....the Constitution challenging the rejection of the nomination. Dealing with that situation, this Court held that the word 'election' can be and has been appropriately used with reference to the entire process, which consists of several stages and embraces many steps some of which may have important bearing on the result of the process. Therefore, it was held that if the grounds on which an election can be called in question, could be raised at an earlier stage and the errors, if any, are rectified there will be no meaning in enacting a provision like Article 329(b) and in setting up a Special Tribunal. It was further held that any other meaning ascribed to the words used in the Article would lead to anomalies which the Constitution could not have contemplated, one of them being that conflicting views may be expressed by the High Court at the pre -polling stage and by the Election Tribunal, which is to be an independent body at the stage when the matter is brought up before it. In the light of the situation in which the overall jurisdiction of the Election Tribunal (High Court) relating to a challenge that can be made to an election can be made as provided Under Article 329(b....
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....a member or to be chosen as a Member of Panchayat, the only remedy is by way of an Election Petition and not otherwise. In the said case, one of the contestants was held to be disqualified based on another proceeding where he was found to have encroached public lands and was directed to be ejected from the land in question, which was one of the circumstances under which he came to be disqualified as prescribed Under Section 122(1) of the Act. The person who alleged such disqualification as against the contestant, moved the Deputy Commissioner, who took cognizance of the said complaint and by an order dated 04.06.2002, declared the contestant as disqualified from being chosen as a Member of the Zila Parishad and consequently, his election was set aside. On finding that such a power was not invested with a Deputy Commissioner under the said Act and that the only remedy available to the Complainant was by way of an Election Petition as provided Under Section 163 read with Sections 174 and 175 of the Act, this Court held that such parallel proceedings cannot be permitted. We do not find any scope to apply the said decision to the case on hand. We have elaborately noted the scheme of th....
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....Reliance was then placed upon a Constitution Bench decision of this Court reported in Brundaban Nayak (supra). In the said judgment, which was prior to the introduction of Section 10A and the corresponding Rules, relating to the said section. In Paragraph 19, after noting the observations made by the Chief Election Officer, while rendering its opinion at the request of the Governor as provided Under Article 192 of the Constitution, when relevant facts are in dispute it can be ascertained only after a proper enquiry, this Court observed as under in paragraph 19; 19.......We would like to invite the attention of parliament to these observations, because we think that the difficulty experienced by Election Commission in rendering its opinion Under Article 103(2) or Article 192(2) appears to be genuine and so parliament may well consider whether the suggestion made by the Chief Election Commissioner should not be accepted and appropriate legislation adopted in that behalf. ( 53. ) IN fact, Section 146 of the Act, which came to be introduced with effect from 22.09.1965 apparently was in compliance with the above observations made by this Court under which provision, the Elec....
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.... 55. ) THE learned Senior Counsel also placed reliance upon the decision reported in Kanwar Singh Saini (supra). Reference was made to paragraphs 22 and 23, which are as under: 22. There can be no dispute regarding the settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior court, and if the court passes order/decree having no jurisdiction over the matter, it would amount to a nullity as the matter goes to the roots of the cause. Such an issue can be raised at any belated stage of the proceedings including in appeal or execution. The finding of a court or tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no jurisdiction. Acquiescence of a party equally should not be permitted to defeat the legislative animation. The court cannot derive jurisdiction apart from the statute. 23. When a statute gives a right and provides a forum for adjudication of rights, remedy has to be sought only under the provisions of that Act. When an Act creates a right or obligation and enforces the performance thereof in a specified manner, &....
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....how cause notice calling upon the contesting candidate to submit his reply and after the receipt of the reply to the said show cause notice, consider whether the statement of account was lodged in the manner and as required by or under the Act and only thereafter, pass an order of either disqualification or otherwise. Therefore, the said decision also does not come for the rescue of the Appellant. ( 57. ) THE decision reported in Tukaram S. Dighole (supra) was relied upon to highlight that a charge of corrupt practice envisaged by the Act is equated with the criminal charge and, therefore, the standard of proof would not be the preponderance of probabilities, as in a civil action, but proof beyond reasonable doubt as in a criminal trial. Paragraph 10 of the said decision was relied upon for the above proposition, which reads as under: 10. Mr. K.V. Viswanathan, learned Senior Counsel, appearing on behalf of the Respondent, on the other hand, supported the decision of the Tribunal and submitted that apart from the fact that there was no specific pleading in the election petition with regard to the mode of acquisition of the cassette in question, even if it was assumed tha....
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....on 11 the aggrieved candidate is not able to get his grievance redressed, the Constitutional remedy Under Articles 32 and 226 of the Constitution is always available to question the correctness of any order that may be passed by the Election Commission Under Sections 10A and 11 of the Act. Reliance was placed upon the recent decision of this Court reported in Secretary, A.P.D. Jain Pathshala and Ors. (supra) for the proposition that ad hoc authorities cannot be permitted to exercise judicial functions and that the executive power of the State cannot be extended to creating Judicial Tribunals or Authorities exercising juridical powers and rendering judicial decisions. The said decision came to be rendered while examining the scope of binding nature of a decision rendered by a three member Grievance Redressal Committee constituted under a scheme called Shikshan Sevak Scheme in all recognized private secondary/higher secondary school/junior colleges/B. Ed. colleges in the State of Maharashtra. Such a scheme was not under any statute or was not governed by any statutory provision. In examining the scope of authority of such a committee called Grievance Redressal Committee formed under ....
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....to seek for inspection of the account submitted by a candidate and also get the authenticated copy of such statement. He is also entitled to bring to the notice of the Election Commission any serious flaw in the account of election expenses submitted by a contesting candidate. Our conclusion is, therefore, based on an interpretation of the statutory provisions in the Act, as well as the Rules. Therefore, the reliance placed upon the decisions reported in Bharat Aluminium Co. (supra) and M. Karunanidhi (supra) does not support the case of the Appellant. ( 61. ) THE decision reported in Siddharam Satlingappa Mhetre (supra) was relied upon for the proposition that a decision delivered by a larger Bench is binding on any subsequent Bench of lesser or co -equal strength. The submission was that the decision rendered in Sucheta Kripalani (supra) is a Constitution Bench decision, while the one rendered in L.R. Shivaramagowda (supra) is by three Judge Bench and that since the Constitution Bench decision covered the issue, the same should have been followed and, therefore, the law laid down in L.R. Shivaramagowda (supra) need not be followed. ( 62. ) HAVING considered the said submiss....
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....aph 65 of the said judgment. ( 64. ) THE learned Additional Solicitor General also placed reliance upon a three Judge Bench decision of this Court reported in Sales Tax Officer v. K.I. Abraham (supra). Reliance was placed upon page 522, while interpreting the phrase 'in the prescribed manner' in Section 8(4), read with Section 13 of the Central Sales Tax Act, wherein it was held as under: ...The decision of the question at issue therefore depends on the construction of the phrase 'in the prescribed manner' in Section 8(4) read with Section 13 of the Act. In our opinion, the phrase 'in the prescribed manner' occurring in Section 8(4) of the Act only confers power on the rule -making authority to prescribe a rule stating what particulars are to be mentioned in the prescribed form, the nature and value of the goods sold, the parties to whom they are sold, and to which authority the form is to be furnished. But the phrase 'in the prescribed manner' in Section 8(4) does not take in the time -element. In other words, the section does not authorize the rule -making authority to prescribe a time -limit within which the declaration is to be filed ....
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....ith or not, we fail to see any ground to apply the ratio of the above decision to the case on hand. Therefore, the said decision also does not support the stand of the Union of India. ( 65. ) WHEN we consider the submission of Mr. Jayant Bhushan, learned Senior Counsel pointing out the distinguishing feature in the case of Sucheta Kripalani (supra), which came to be rendered when Section 7(c) was as it originally stood was to be applied along with Section 143 of the Act, this Court in paragraph 11 stressed the point that Under Section 143, which specifically prescribes that a return is found to be in accordance with Section 77 of the Act, the jurisdiction was vested with the Election Tribunal (High Court) in an election petition to find out whether the return contained falsity in material particulars. The learned Senior Counsel, therefore, submitted that what was held in paragraph 30 that in the light of the said Section 143, which was prevailing then, this Court when examining the jurisdiction of the Election Commission to pass an order of disqualification, stated in paragraph 30 that it is a question of form and not of substance. The learned Senior Counsel also pointed out tha....
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.... (Retd.) and Ors. - : 2013 (3) SCC 1, to which one of us was the party (F.M. Ibrahim Kalifulla, J.). Paragraph 96 of the said judgment is to the following effect; 96. In the process of statutory construction, the court must construe the Act before it bearing in mind the legal maxim ut res magis valeat quam pereat which means it is better for a thing to have effect than for it to be made void i.e. a statute must be construed in such a manner so as to make it workable. Viscount Simon, L.C. in Nokes v. Doncaster Amalgamated Collieries Ltd. stated as follows: (AC p. 1022) ...if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result. ( 67. ) APPLYING the above well known principle to the facts of this case, we are not persuaded to accept the submission of Mr. Gopal Subramanium, learned Senior Counsel. If the submissions were to be accepted and it will have to be held that....
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....ssion and it should be interpreted in a broad perspective as held by this Court in various decisions. ( 69. ) IN the light of the above categoric statement made while holding that the rule of law and free and fair elections are the basic features and facts of our democracy, Article 324 should be interpreted in a wide perspective giving power to the Election Commission which has to be recognized in a broad sense and not in a narrow one. We fully approve of the submissions of Mr. Ashok Desai, learned Senior Counsel on the above lines and we have already held that in order to ensure free and fair elections, the power vested with the Election Commission Under Section 10A read along with the other provisions of the Act and the Rules, it should be held that Election Commission does possess the requisite powers Under Section 10A to hold the necessary enquiry to ascertain the fact about the compliance of the statutory requirements in the matter of submission of accounts of the election expenses, i.e. the true, correct and bona fide expenses and that such expenses were within the prescribed limit of the Act. ( 70. ) WE also wish to refer to the decision of this Court reported in Peopl....
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.... -checking through the income tax returns filed by the candidates, parties and their well -wishers. At the end of the election each candidate should submit an audited statement of expenses under specific heads. EC should devise specific formats for filing such statements so that fudging of accounts becomes difficult. Also, the audit should not only be mandatory but it should be enforced by the Election Commission. We only refer to the said paragraphs as has been relied in the above judgment and keep the same in mind when we interpret the power of the Election Commission Under Section 10A. The same will have to be kept in mind when we interpret the power of the Election Commission Under Section 10A of the Act. When we do so we are convinced that the interpretation placed by us on Section 10A would be the proper manner of interpretation, in order to ensure that such misuse of money power in the field of public elections are to be curbed. ( 71. ) MR . Prashant Bhushan, learned Counsel for the intervenor by relying upon the decision reported in Dalchand Jain (supra) in paragraph 14, pointed out that while Section 123(6), which relates to corrupt practice, is referable to Se....
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....f Explanation I to Section 77 of the RP Act. 6. That the expenditure, (including that for which the candidate is seeking protection under Explanation 1 to Section 77 of the RP Act) in connection with the election of a candidate - -to the knowledge of the candidate or his election agent - -shall be presumed to have been authorised by the candidate or his election agent. It shall, however, be open to the candidate to rebut the presumption in accordance with law and to show that part of the expenditure or whole of it was in fact incurred by the political party to which he belongs or by any other association or body of persons or by an individual (other than the candidate or his election agent). Only when the candidate discharges the burden and rebuts the presumption he would be entitled to the benefit of Explanation 1 to Section 77 of the RP Act.... ( 73. ) THE submission apparently was that there was every right in the candidate concerned to demonstrate that the candidate did not really incur such expenditure and that he was not to be blamed for any unauthorized expenditure made by the party concerned. Assuming such a stand of any of the Appellants is to be believed, it i....
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....with law. In order to ensure that within the said period the Election Commission is not prevented from passing the orders due to non -cooperation of any of the parties, it will open for the Election Commission to hold the proceedings on a day to day basis and conclude the same within the said period. ( 75. ) IN so far as the appeal (@ SLP(C) No. 21958 of 2013) is concerned, apart from holding that the Election Commission has got every jurisdiction to hold the enquiry Under Section 10A for the purpose of disqualification, since the Election Commission has already passed its orders on merits and disqualified the Appellant for a period of three years, we also examined the reasoning of the Election Tribunal (High Court) for passing the said order, as well as the judgment of the Division Bench. Since, the order of Election Commission has now been confirmed by the Division Bench and since the Division Bench has dealt with the said issue on merits extensively, we wish to refer to the said part of the judgment to find out whether the grievance of the Appellant on merits deserves any consideration. The Division Bench has recorded the plea raised on behalf of the Appellant by stating that....
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....writ petition. In the account of expenditure submitted by the Petitioner neither it is claimed that amount incurred in the above advertisement was shown by the Petitioner in her account of expenditure not it is even claim that expenditure was incurred by the Petitioner. The Petitioner's clear case is that the aforesaid expenditure was incurred by the political party of which Petitioner was a candidate. As per the law laid down by the Apex Court in the above noted cases and the pleadings on the record, it is clear that the aforesaid expenses cannot be treated to be expenses which were not required to be shown in the account of expenditure of the Petitioner. The Petitioner, thus, has to be held to have incurred/authorize the expenses for publication of the aforesaid advertisement which having not been shown in her account, the account of expenditure submitted by the Petitioner is clearly untrue and breach was committed by the Petitioner of Section 77 of the Representation of People Act, 1951. ( 77. ) BEFORE reaching the above conclusion, the Division Bench has also taken note of the various factual details observed by the Election Commission in its order, as to the nature of e....
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....bill of Rs. 8,000/ - in the name of D.P. Yadav was issued and paid. Both the newspapers have submitted that materials for publication of advertisement was provided on behalf of the Petitioner and the material was not collected by correspondents of the newspapers. The Petitioner's case before the Election Commission of India was that only an appeal was published by the party from which the Petitioner was contesting on 17th April, 2007 for which an amount of Rs. 840/ - was paid and bill was also issued by the newspapers of Rs. 840/ -. Petitioner's case is that the said bill was drawn in the name of D.P. Yadav, the husband of the Petitioner who was also the president of Rashtriya Parivartan Dal. The Petitioner in this writ petition has come with specific plea that aforesaid two news publications were published by the party i.e. the Rashtriya Parivartan Dal and the expenditure of the aforesaid news publication was paid and borne by the party. Paragraph 6 of the writ petition which contains the said pleading is quoted below: 6. That at this juncture, it may be stated here that the aforesaid two news publications were published by the Party, which the Petitioner belong t....