TaxTMI 
TaxTMI 
2014 (4) TMI 1119
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....(@ 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 Election Commission alleging violation ....
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....lant 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 v. Rajiv Gandhi - : 1986 (Supp) SCC 315, such ....
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....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 Subramanium, learned Senior Counsel is: (a) By virtue of Arti....
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.... (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 Election Commission Under Article 324 of the Constitution can be invoked only where it is unoccupied and when ther....
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....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 Section 10A, the failure to submit the accounts in time is for the satisfaction of the Election Commission, which is merely a....
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....mmission 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 jurisdiction of the Election Commission to pass orders Under Section 10A. (f) The case on hand is covered by the decision of this Court reported in L.R. Shivaramagowda (su....
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....alk 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 dated 20.10.2011, disqualifying the Appellant for a period of three years on merits which order was also confirmed by the Division Bench in the impugned order in this appeal. Mr. Suni....
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....r 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 unaccounted expenses incurred by them. This was brought to the notice of the Election Commission by the contestants in the case of Mr. Ashok Shankarrao Chavan, by the Central Board of Direct Ta....
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....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 the said purpose, in our considered view, the following provisions under the Constitution and the various sections under the Act and Rules are required to be noted. ( 15. ) AS far as the provisions of the C....
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....cle 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 provision with respect to elections to Legislatures. Subject to the provisions of this Constitution, Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters nec....
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....ion 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 removed by the Election Commission for reasons to be recorded by it in writing. After the 1956 amendment, there was an amendment to Section 7(c) and Section 8(b). The amendment to Section 7(c) was relating to the alteration of the period, namely, from 5 years to 3 years within which time the occurrence of the event of disqualification would lapse. Under the amended Section 8(b), the power to decide the nature of default mentioned in Section 7(c) was entrusted with the Election Commission, Further, Se....
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....ion 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 and any such person shall be disqualified for a period of three years from the date of the order. Section 11. Removal or reduction of period of disqualification. - The Election Commission may, for reasons to be recorded, remove any disqualification under this Chapter (except Under Section 8A) or reduce the period of any such disqualification. Section 77. Account of election expenses and maximum thereof. - (1) Every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expen....
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....gh 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 election petition - (a) shall contain a concise statement of the material facts on which the Petitioner relies; (b) shall set forth full particulars of any corrupt practice that the Petitioner alleged including as full statement as possible of the names of the parties alleged to have commission such corrupt practice and the date and place of the commission of each such practice; and (c) shall be signed by the Petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings: [Provided that where the Petitioner alleges any corrupt practice, the petition shall also be accompanie....
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....tted 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 if the case had been forwarded to him Under Section 482 of the Code of Criminal Procedure, 1898 (5 of 1898). (4) Any proceeding before the Commission shall be deemed to be Judicial proceeding within the meaning of Section 193 and Section 228 of the Indian Penal Code (45 of 1860). Section 146B. Procedure to be allowed by the Election Commission. - The Election Commission shall have the power to regulate its own procedure (including the fixing of places and times of its sittings and deciding whether to sit in public or in private.) The Conduct of Election Rules, 1961 Rule 86. Particulars of account of election expenses. -(1) The account of election expenses to be kept by a candidate or his election agent Under Section 77 shall contain the following particulars in respect of each item o....
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.... - (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 the time and in the manner required by the Act and these rules. (2) Where the district election officer is of the opinion that the account of election expenses of any candidate has not been lodged in the manner required by the Act and these rules, he shall with every such report forward to the Election Commission the account of election expenses of that candidate and the vouchers lodged along with it. (3) Immediately after the submission of the report referred to in Sub -rule (1) the district election officer shall publish a copy thereof affixing the same to his notice board. (4) As soon as may be after the receipt of the report referred to in Sub -rule (1) the Election Commission shall consider the same and decide whether any contesting candidate has failed to lodge the account of election expenses within the time and in the manner required by the Act and these rules. (5) Where the Election Commission decides that a con te....
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.... 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 purport of Article 102(1)(e) is to ensure that any disqualification of a Member of Parliament can be declared only by or under any law made by the Parliament. That apart Under Article 103 of the Constitution, whenever a question arises as to whether a Member of Parliament has been disqualified as provided Under Article 102(1), the decision as to such a disqualification can be reached only by the President of India, which would become absolute and conclusive. However, Under Article 103(2) it is provided that before arriving at such a decision, the President should obtain the opinion of the Election Commission and act based upon such opinion of the Election Commission. Articles 190(3)(a), 191(1)(e) and 192(1) & (2) are the identical provisions, which would be applicable to a Member of a Legislature of the State. The only difference is Under Article 192, it will be the Governor who can take the decision and such a decision should be again based on the opinion rendered by the Election Commission. Therefore, Articl....
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....her 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 mandates, relating to disqualification and validity of an election to be challenged, Under Articles 327 and 328 of the Constitution, provides the power to Parliament to make provisions by law to deal with the elections to Parliament and State Legislature and also by the State if such law does not contain any provision to deal with an election to the said offices. Apparently, in the purported exercise of the above Article 327 of the Constitution, the Representation of the People Act in the year 1950 and subsequently in the year 1951, came to be passed in the Parliament and thereafter, the relevant rules, namely, the Conduct of Election Rules, 1961 were also promulgated. ( 21. ) UNDER Article 324(1) of the Constitution in Part XV, the nature of functions, powers such as superintendence, issuance of directions, control of the preparation of the electoral rolls, the conduct of all elections to Parliament and to the legislature of every State, as well as the elections to the offices of the President and Vice -President....
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....) 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 the failure to lodge the account within the stipulated time limit is to be declared by the Election Commission for Section 7(c) to operate. ( 24. ) THE above prescription which existed prior to introduction of Section 10A has to be necessarily noted in order to appreciate what is the effect that had been brought about by virtue of the introduction of Section 10A to the Act. Before adverting to the scope of Section 10A, it is necessary to note certain other provisions, namely, Sections 77, 78, 123(6) as well as Rules 86, 87, 88, 89 and 90 of the Rules, since, the implication of the above provisions and Rules would arise while examining the effect of Section 10A after its introduction. Section 77 which is under Chapter VIII mandates as to how the account of election expenses are to be maintained and the maximum limit that can be expended as prescribed. ( 25. ) WHEN we read Section 77(1), it is specified therein that every candidate should keep a separate and correct account of all the expenditure in connection wit....
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....t 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 the legislature has been explicitly made clear that the maintenance of the correct account of the election expenses within the time limit prescribed in making such expenses is not for the satisfaction of the Election Commission alone. The purport and intent of the said exercise is to ensure that none of the candidates can take it as a formality and file some return without disclosing their correct particulars, inasmuch as once the true copy of the account maintained is lodged with the DEO it is not only for the candidates who contested in the election but 'any person' meaning thereby, any citizen of this country can have access to verify the account lodged with the DEO and also get a authenticated copy of such a statement. In fact, such a stipulation contained in Sections 77(1) and (3), 78, Rule 90, as well as Rules 87 and 88 were brought into the statute book in order to ensure that the purity in the election is maintained at any cost and nobody is allowed to take the voting public of this country for a ride. It wil....
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....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 disqualified Under Section 10A for such default. Under Sub -rule (6) of Rule 89, once the notice to show cause is issued as per Sub -rule (5), within 20 days of receipt of such notice, the candidate concerned should submit a representation in writing to the Election Commission and simultaneously forward a copy to the DEO together with the complete account of his election expenses, if he had not already furnished such an account. Under Sub -rule (7) of Rule 89, the DEO should forward his report on the representation so submitted by the candidate, if any, with such comments which he wishes to make on the said representation. Under Sub -rule (8) of Rule 89, the Election Commission after such enquiry, as he thinks fit, on being satisfied that no good reason or justification was shown for the failure to lodge the account, can pass an order of disqualification as provided Under Section 10A for a period of three years from the date of the order and publish such order in the official gazette. We find in Sub -rules (1) to (5), specific r....
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....uthority in him to hold an appropriate enquiry. Only such an exercise would ensure that in ultimately arriving at the satisfaction for the purpose of examining whether an order of disqualification should be passed or not as stipulated Under Section 10A, the high expectation of the electorate, that is the citizens of the country reposed in the Election Commission is fully ensured and also no prejudice is caused to the contesting candidate by casually passing any order of disqualification without making proper ascertainment of the details of the accounts, the correctness of the accounts and the time within which such account was lodged by the candidate concerned. When we examine Section 10A in this context, it makes it clear that the Election Commission has to find out whether a person has failed to lodge an account of election expenses within the time and in the manner required by or under this Act. The specific expression 'by or under' used in Section 10A(a) emphasizes that wherever the Act stipulates as regards the maintenance and the lodgment of the account, such stipulations in its substance would be the requirement for the verification to be made while holding an enqui....
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.... 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, fortifies our above conclusion that even the President of the country and the Governor of a State can rely upon the report of the Election Commission based on an enquiry before taking a decision Under Article 103(2) and Under Article 192(2) of the Constitution. Therefore, to call the Election Commission's responsibility before passing an order Under Section 10A only to see the form and not substance as canvassed by the Appellant is a proposition too difficult to accept. ( 32. ) WHEN we come to Section 143 falling under Chapter I of Part VII, the said provision needs to be examined alongside the explanation to Sub -section (1) and (6) of Section 123. When we read the explanation to Sub -section (1), 'bribery' is stipulated as one form of corrupt practices and yet proceeds to state that the act of bribery cannot be attributed to the payment of any expenses bona fide incurred for the purpose of any election and duly entered into the account of election expenses referred to in Section 78, i.e. the provision under which a conte....
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.... 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 was noted earlier Under Articles 103 and 192 of the Constitution in the case of a Member of Parliament or a Member of State Legislature for the purpose of ascertaining the fact about a member vacating his seat as a member, one of the requirements would be that such a member is disqualified by or under any law made by the Parliament. It is needless to state that the act of disqualification referred to in Articles 102 or 190 of the Constitution, can be mainly referable to the law made by the Parliament viz the Representation of the People Act. The decision of the President of India and the Governor of a State depends upon the opinion of the Election Commission. Section 146 of the Act prescribes the procedure to be followed before rendering the opinion to the President of India or the Governor of a State. ( 34. ) WHEN it is stipulated Under Articles 102(1)(e) and 191(1)(e) to the effect that the ascertainment of vacation of a seat of a Member of Parliament or a Member of a State Legislature would depend upon a disqualification suffered by or un....
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....hreadbare, there is no reason for the Election Commission to give due weight to such a finding of the Election Tribunal (High Court) while exercising its jurisdiction Under Section 10A. With this we wish to deal with the various submissions of the respective counsel. Before adverting to the submissions of the learned Counsel for the respective parties, it will be in order to note the alleged violations committed by the Appellants in the above appeals, which prompted the Election Commission to initiate the present proceedings Under Section 10A of the Act. Insofar as the Appellant in the appeal (@ SLP(C) No. 29882 of 2011) is concerned, there were three complaints at the instance of (i) Shri Mukhtar Abbas Naqvi, Member of Parliament, Bhartiya Janata Party and five others, (ii) Dr Madhavrao Kinhalkar, one of the rival contestants at the aforesaid general elections from 85 Bokar Assembly Constituency and (iii) Dr. Kirit Somaiya, Vice -President, Bhartiya Janata Party, Maharashtra and four others. In their complaints submitted to the Election Commission towards the end of November 2009 and beginning of December 2009, it was alleged that the Appellant Ashok Shankarrao Chavan got several....
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.... Appellant. When the matter was posted for hearing, a preliminary objection was raised questioning the jurisdiction of the Election Commission to hold an elaborate enquiry in exercise of its powers Under Section 10A and while dealing with said preliminary issue, the Election Commission relied upon the decision of this Court in L.R. Shivaramagowda (supra) and reached a conclusion that the commission had every jurisdiction Under Section 10A to go into the question of alleged incorrectness or falsity of the election expenses maintained by the Appellant Under Section 77(1) and (2) and lodged by him Under Section 78 of the Act. The Commission, therefore, decided to hear the matter on merits to be held on 29.04,2011 at 4 p.m. in the Commission Secretariat. The said order was the subject matter of challenge. The said order of the Election Commission came to be upheld by the Division Bench of the Delhi High Court in the order impugned dated 30.09.2011 in Writ Petition (C) No. 2511 of 2011. ( 36. ) INSOFAR as the Appellant in the appeal (@ SLP(C) No. 14209 of 2012) is concerned, he submitted his accounts of election expenses along with the register and vouchers to the tune of Rs. 18,92,353....
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....havan, concluding that the Commission has undoubted jurisdiction Under Section 10A to go into the question of the alleged incorrectness or falsity of the return by the candidate Under Sections 77(1) and 77(2), lodged Under Section 78. Aggrieved by this order, the Appellant herein filed Writ Petition(C) No. 4662 of 2011 before the Delhi High Court, which was thereby dismissed by the Court in view of the order already passed by it in Writ Petition (C) No. 2511 of 2011. In so far as the appeal (@ SLP(C) No. 21958 of 2013) is concerned, the Appellant was a candidate from 24 Bisauli Assembly Constituency U.P. in the General Assembly Election of 2007 from a party, namely, Rashtriya Parivartan Dal. Sri Yogendra Kumar, the 2nd Respondent, was also a contesting candidate from the said constituency. The polling in the constituency was scheduled to take place on 18.04.2007. A day before the date of polling, a publication was made in a newspaper 'Amar Ujala' dated 17.04.2007 mentioning that there is a wave in favour of the Appellant in the election and the voters have made up their mind to support the Appellant. A similar publication was also made in the newspaper 'Dainik Jagaran&....
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....re neither ordered by the Appellant nor by her election agent. On 19.08.2010, the Election Commission requested the newspapers to send copies of all the relevant documents pertaining to the publication dated 17.04.2007. On 06.01.2011, the Election Commission again wrote to the Appellant stating that the account of election expenses lodged by her as per Section 78 of the Act had not reflected the proper and correct expenditure and a hearing was thereby fixed on 04.02.2011. In the hearing it was submitted by the Appellant that the advertisement given by her party was only in a small box size 7 x 6 cms. for which an amount of Rs. 840 was paid to the Daily Amar Ujala vide bill dated 17.04.2007. The Election Commission after hearing the Appellant and the Respondent No. 2, vide its order dated 20.10.2011 held the Appellant to be guilty of breach of the provisions 78 and 10A of the Act and accordingly disqualified her for a period of three years. Subsequent to this order, a writ petition was filed by her on 05.11.2011, challenging the order of the Election Commission in Writ Petition No. 63965 of 2011 before the Hon'ble High Court of Allahabad, which dismissed the said writ petition v....
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....justice, liberty, equality and fraternity. In such a large democratic country such as ours, if purity in elections is not maintained and for that purpose when the constitution makers in their wisdom thought it fit to create an authority, namely, the Election Commission and invested with it the power of superintendence, control and also to issue directions, it must be stated that such power invested with the said constitutional authority should not be a mere empty formality but an effective and stable one, in whom the citizens of this country can repose in and look upon to ensure that such unscrupulous elements and their attempts to enter into political administration of this vast country are scuttled. In that respect, since the ruling of this vast country is always in the hands of the elected representatives of the people, the enormous powers of the Election Commission as the guardian of democracy should be recognized. It is unfortunate that those who are really interested in the welfare of society and who are incapable of indulging in any such corrupt practices are virtually sidelined and are treated as totally ineligible for contesting the elections. Having noted the above featu....
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....called in question except by an Election Petition presented in accordance with the provisions of this Part, namely, Part VI of the Act. Section 83 stipulates that an Election Petition should contain a concise statement of the material facts on which the Appellant relies, set -forth full particulars of any corrupt practice that the Appellant alleges, including a full statement of the possible names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice, which should be signed by the Appellant concerned and verified in a manner as provided in the Code of Civil Procedure for verification of pleadings. The proviso to Section 83(1) states that where the Appellant alleges any corrupt practice, the Petition should also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. It is based on such contents in the Election Petition as provided Under Section 83, the trial of Election Petition will be made by the Election Tribunal (High Court) and the various other provisions describe the procedures which are to be followed, including the relief ....
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....) of the 1950 Act, which has now been restructured in Section 10A, that the provision of Section 7(c) was interpreted by this Court in Sucheta Kripalani (supra), wherein this Court has ruled that the requirement of lodgment of the account of election expenses is only in form and not in substance and that the said legal position continued even after the introduction of Section 10A. The learned Senior Counsel while referring to the subsequent decision of this Court on Section 10A reported in L.R. Shivaramagowda (supra) contended that having regard to the fact that the decision in Sucheta Kripalani (supra) is the decision of a Constitution Bench of this Court, a contrary view expressed in L.R. Shivaramagowda (supra), a three Judge Bench decision calls for reconsideration. ( 41. ) MEETING the above submissions of the learned Counsel for the Appellant, Mr. Bhushan, learned Senior Counsel and Mrs. Pinki Anand, learned Senior Counsel for the contesting Complainants before the Election Commission and Mr. Ashok Desai, learned Senior Counsel appearing for the Election Commission, contended that the scope and ambit of Section 7(c) as it originally stood, as well as the subsequent amendments ....
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.... as regards the disqualification period of which is prescribed as three years from the date of the order. Such a detailed nature of power, now prescribed Under Section 10A, was not provided for Under Section 7(c) read along with Section 8(b), as it originally stood. Further, a consideration of the implication of Articles 101(3)(a), 102(1)(e) and 103, as well as 190(3)(a), 191(1)(e) and 192 of the Constitution read along with Section 146 of the Act having been exhaustively noted by us in the earlier part of the judgment, it will have to be held that the power Under Section 10A is wide enough for the Election Commission to deal with the issue of disqualification on the ground of failure to lodge the account of election expenses within the time and in the manner required by or under the Act for deciding the issue whether an order of disqualification should be passed against a contesting candidate. In fact, while the scope of consideration by the Election Tribunal (High Court) will be in relation to the validity of election of a successful candidate by the other contesting candidates and the ultimate conclusion by the Election Tribunal (High Court) may be either validating the electio....
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....to decide whether a contesting candidate has failed to lodge his account of election expenses within the time and in the manner required by the Act after adopting the procedure mentioned therein. If an account is found to be incorrect or untrue by the Election Commission after enquiry Under Rule 89, it could be held that the candidate had failed to lodge his account within the meaning of Section 10A and the Election Commission may disqualify the said person. Hence, we do not find any substance in the argument of learned Counsel for the first Respondent. ( 44. ) THEREFORE , the said conclusion reached by this Court in the said decision fully covers the issue raised and we hold that the order of the Election Commission, which has now been upheld by the High Court in stating that it has got every jurisdiction to enquire into the complaint made before it as regards the incorrect and untrue statement of accounts of election expenses lodged by the Appellant can be enquired into for the purpose of passing an order of disqualification Under Section 10A, is perfectly justified. The contention of Mr. Gopal Subramanium, learned Senior Counsel that the proposed action of the Election Commis....
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.... a restricted meaning cannot be applied to Section 10A. The learned Counsel for the Respondents by referring to Section 10A and the Rules, in particular Rule 88 pointed out that Under Rule 88, after the account of election expenses are lodged with the DEO, as stipulated Under Rule 87, any person is entitled on payment of nominal fee of Rs. 1 to inspect such account and on payment of such other fee prescribed or fixed by the Election Commission, is also entitled to obtain attested copies of such accounts or of any part thereof. The learned Counsel, therefore, contended that the very right given to a citizen or a voter to seek for inspection of the account of election expenses submitted by a candidate and also get attested copies of such account, would show that the said person who seeks for such inspection and gets a copy will have every consequential right to move the appropriate authorities to point out any illegality committed in the submission of the account of election expenses. When we consider the above submission, we find force in the submissions of the learned Counsel for the Respondents. Reading Section 10A along with Rules 87 to 90, in particular, the right conferred on ....
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....A makes it clear that he would have every locus to prefer a complaint. Also in the course of an enquiry made Under Section 10A, the Election Commission can call upon the concerned individual to substantiate the complaint with relevant materials to enable the Election Commission to pass appropriate orders of disqualification under the said Section. Therefore, the contention of learned Senior Counsel for the Appellant that the Complainants have no locus cannot be accepted. ( 48. ) IN fact, apart from the complaints of the individuals, in the case of the Appellant in the appeal (@ SLP(C) No. 29882 of 2011) and in the case of the Appellants in the other appeals, such illegality in the matter of accounts of the election expenses was brought to the notice of the Election Commission by the Press Council of India in one case and by the Board of Direct Taxes in the other. Even if some motive can be attributed to the complaints made by the individuals, we see no reason why bodies like the Press Council of India and the statutory body, namely, Board of Direct Taxes should have any malice or motive against the candidates concerned, namely, the Appellants while bringing the illegalities commit....
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....nge that can be made to an election can be made as provided Under Article 329(b), this Court having held that the word 'election' would include very many process till the completion of the polling and the declaration of the result and, therefore, there cannot be a piecemeal challenge permitted to be made by way of a Writ Petition Under Article 226. The said proposition of law, as declared by this Court, can never be controverted. In the case on hand, there was no attempt made by anyone to challenge the election of the Appellant by resorting to a complaint which has emanated in the form of proceeding Under Section 10A by the Election Commission. In fact, in a proceeding Under Section 10A, there is no scope or power vested with Election Commission to declare the election as invalid. Therefore, there is no question of any violation of Article 329(b) that would arise in the case on hand. We, therefore, do not find any support from the said decision for the Appellant. ( 50. ) THE Appellant then relied upon the decision reported in Surinder Singh Banolta (supra). In the said decision, reliance was placed upon Paragraph 18, wherein it was stated as under: 18. If a candidate or ....
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....sion to the case on hand. We have elaborately noted the scheme of the Act by which the scope of the Election Petition as contained in Sections 79 to 116 was noted, as against the power and jurisdiction of the Election Commission to pass an order of disqualification Under Section 10A, which does not deal with the validity of the election but is only concerned with the failure to lodge a statement of election expenses in the manner as required by or under the Act, for the purpose of passing an order of disqualification. ( 51. ) IN the light of such statutory prescription contained in the Act clearly distinguishing the different role to be played by an Election Tribunal (High Court) and the Election Commission as compared to the provisions contained in the Himachal Pradesh Panchayat Raj Act, 1994, the said decision also does not support the stand of the Appellant. ( 52. ) RELIANCE was also placed upon Dalchand Jain (supra) to contend that suppression of certain expenses incurred in the election while submitting the return as stipulated Under Section 77 would amount to a corrupt practice as specified in Section 123(6) and consequently, in that case on finding that such non -disclosur....
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....ions made by this Court under which provision, the Election Commission has now been invested with all the powers. Apart from the above observations, it will be worthwhile to note the conclusion arrived at by this Court in Brundaban Nayak (supra) in paragraph 18, which reads as under: 18. In this connection, we ought to point out that so far the practice followed in respect of such complaints has consistently recognised that the enquiry is to be held by the Election Commission both Under Article 192(2) and Article 103(2). In fact, the learned Attorney -General for Respondent 1 stated before us that though on several occasions, the Election Commission has held enquiries before communicating its opinion either to the President Under Article 103(2) or to the Governor Under Article 192(2), no one ever thought of raising the contention that the enquiry must be held by the President or the Governor respectively Under Article 103(1) and Article 192(1). He suggested that the main object of the Appellant in taking such a plea was to prolong the proceedings before Respondent 1. In the first instance, the Appellant asked for a long adjournment and when that request was refused by Respondent ....
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....ereof in a specified manner, 'that performance cannot be enforced in any other manner'. Thus for enforcement of a right/obligation under a statute, the only remedy available to the person aggrieved is to get adjudication of rights under the said Act. ( 56. ) NO one can quarrel with the proposition as laid down in the above paragraphs. The question is whether Under Section 10A and the other alleged provisions under the Act, as well as, the Rules, such a power has been invested with the Election Commission. We have elaborately referred to the various provisions in the Act, as well as the Rules in particular Section 10A, Section 77(1) and (3), Section 78 read along with Rules 86 to 90 and have held that such a power to hold an enquiry before passing an order of disqualification Under Section 10A has been invested with the Election Commission. Therefore, even applying the above said principles, we do not find any scope to take a different view. We do not find any support from the decision relied upon by the learned Senior Counsel on Andhra Provincial Potteries Ltd. and Ors. (supra). Reliance was placed upon the principle stated In paragraph 7, wherein it was held that in inte....
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....t was assumed that the said cassette was a public document yet in order to attract the provisions of Section 123 of the Act, the Appellant was required to prove with cogent evidence that the speeches recorded therein were, in fact, made by the Respondent and his agents. In support of the proposition that unless a document is exhibited at the trial and is put in evidence it cannot be looked into, reliance was placed on a decision of this Court in Amar Nath Agarwalla v. Dhillon Transport Agency, learned Counsel asserted that the finding recorded by the Tribunal on the issue, being a pure finding of fact, no interference is called for. ( 58. ) IN the first place, the enquiry to be held Under Section 10A is not to examine any allegation of corrupt practice falling Under Section 123 of the Act. The only area of examination to be made in an enquiry Under Section 10A is with regard to the lodging of the account of election expenses and whether such lodgment was done in the manner and as required by or under the Act. In the second place, when such an enquiry is held, the scope would be as contained in Section 77(1) and (3) as well as Section 78. The said provisions require a contesting ca....
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....e formed under a scheme in the purported exercise of executive authority, this Court held that constitution of a Grievance Committee, as a public adjudicatory forum whose decisions are supposedly binding on the parties to the dispute pursuant to executive order of the Government, was impermissible. We do not find any scope to apply the said decision, inasmuch as, there is a world of difference as between the Constitution of a Grievance Redressal Committee under a Scheme with no statutory support and the existence of a Constitutional Authority, viz the Election Commission, created under the Constitution of India, which has been invested with the powers of superintendence, control and issuance of directions for the purpose of holding public elections in this country, apart from the entrustment of specific powers under the Act, inter alia, Under Section 10A and 11 and such powers are to be exercised in accordance with the Rules, viz the Conduct of the Election Rules. The said decision also, therefore, does not help the Appellant. ( 59. ) WE find that the reliance placed upon the decision reported in Election Commission of India Through Secretary (supra) is not applicable to the case ....
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....submission of the learned Senior Counsel Mr. Gopal Subramanium in the earlier part of the judgment while examining the then existing Section 7(c) and 8(b) and insertion of Section 10A replacing the earlier Section 7(c) and 8(b), we have held that the ratio laid down in Sucheta Kripalani based on Section 7(c) and 8(b), cannot be applied and that decision in L.R. Shivaramagowda (supra), which came to be rendered after the insertion of Section 10A alone would apply. We have examined in detail as to how the insertion of Section 10A in the place of Section 7(c) and 8(b) has widened the powers and scope of the Election Commission for passing an order of disqualification which was squarely considered by this Court in L.R. Shivaramagowda (supra). In the light of the said position, the reliance placed upon Siddharam Satlingappa Mhetre (supra) is also of no assistance to the Appellant. Mr. L. Nageshwar Rao, learned Additional Solicitor General relied upon Bharat Aluminum Co. (supra), a Constitution Bench decision of this Court. Our attention was drawn to paragraph 65 where the decision of the House of Lords has been quoted reported in Duport Steels Ltd. v. Sirs -, (1980) 1 WLR 142. The speci....
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.... by the registered dealer.............................This makes it clear that the Legislature was conscious of the fact that the expression 'in the manner' would denote only the mode in which an act was to be done, and if any time -limit was to be prescribed for the doing of the act, specific words such as 'the time within which' were also necessary to be put in the statute. In Stroud's Judicial Dictionary it is said that the words 'manner and form' refer only 'to the mode in which the thing is to be done, and do not introduce anything from the Act referred to as to the thing which is to be done or the time for doing it.... We do not find any scope to apply the said decision to the case on hand. What was highlighted in the said decision was that though the phrase mentioned 'in the prescribed manner' in Section 8(4), yet significantly there was no prescription of any time limit. The authority on its own prescribed the time limit, and therefore, it was held that when such a prescription was not found in the Act, it was not within the authority of the concerned assessing authority to prescribe any time limit. In fact, there was no challenge to....
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....ince now Section 143 itself has been removed from the Act and the scope of power of Election Commission has been incorporated in Section 10A as against the then Section 7(c) and 8(b), the decision in Sucheta Kripalani (supra) can have no application to the case on hand. A reading of the decision in Sucheta Kripalani (supra), particularly paragraphs 11 and 12 really support the above stand of the learned Senior Counsel. Paragraphs 11 and 12 are as under: 11. Section 76 of the Act requires every candidate to file a return of election expenses in a particular form containing certain prescribed particulars. The form and particulars are set out in the Rules. Section 143 prescribes the penalty for failure to observe those requirements. It is disqualification. This ensues if there is a 'default' in making the return. It also ensues; if such a return is found... upon the trial of an election petition under Part VI... to be false in any material particular. 12. That places the matter beyond doubt. The trial of an election petition is conducted by an Election Tribunal and this section makes it incumbent on the Tribunal to enquire into the falsity of a return when that is a matter....
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....ve no jurisdiction to make an enquiry for the purpose of ascertaining the fulfillment of the requirement as contained in Section 10A then the very provision, namely, Section 10A will have to be rendered otiose. We are, therefore, not able to accede to the said submission. On the other hand, if Section 10A has to operate, the conclusion of ours that the Election Commission has the required jurisdiction to make the enquiry into the complaint alleged as against the Appellant is well justified. ( 68. ) TO the same effect is the decision reported in Afjal Imam v. State of Bihar and Ors. - : 2011 (5) SCC 729 which was also relied upon by Ms. Pinki Anand, learned Senior Counsel. We can also usefully refer to the decision referred to before us by Mr. Ashok Desai, learned Senior Counsel for the Election Commission Union of India v. Association for Democratic Reforms and Anr. - : 2002 (5) SCC 294, wherein this Court has highlighted the dire need for maintaining purity in the elections and for that purpose Article 324 to be interpreted in a broad perspective, acknowledging the wide powers invested with the Election Commission. Paragraph 17 of the said decision which is relevant for our purpo....
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....v. Union of India and Anr. - : 2003 (4) SCC 399 which was brought to our notice by Mr. Ashok Desai, learned Senior Counsel. In paragraph 20 of the said decision, this Court has practically acknowledged the report of the National Commission to Review the Working of the Constitution appointed by the Union Government submitted in March, 2002. Paragraph 20 (4.14.1) and (4.14.3) can be usefully referred to show how as a matter of fact money power is playing a very detrimental role in the matter of elections which requires to be curbed, which are as under: 20..........4.14.1. One of the most critical problems in the matter of electoral reforms is the hard reality that for contesting an election one needs large amounts of money. The limits of expenditure prescribed are meaningless and almost never adhered to. As a result, it becomes difficult for the good and the honest to enter legislatures. It also creates a high degree of compulsion for corruption in the political arena. This has progressively polluted the entire system. Corruption, because it erodes performance, becomes one of the leading reasons for non -performance and compromised governance in the country. The sources of some of ....
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....ect accounts with the prescribed particulars, contravention of which, it can be examined only by the Election Commission Under Section 10A. The said submission is perfectly justified and the reliance placed upon the above decision in paragraph 14 also fully supports the stand of the learned Counsel. Para 14 reads as under: 14. Section 123(6) lays down that 'the incurring or authorising of expenditure in contravention of Section 77' is a corrupt practice. Every contravention of Section 77 does not fall within Section 123(6). Section 77 consists of three parts. Section 77, Sub -section (1) requires the candidate to keep a separate and correct account of all election expenses incurred or authorised by him within certain dates. Section 77, Sub -section (2) provides that the account shall contain such particulars as may be prescribed. Section 77, Sub -section (3) requires that the total of the said expenditure shall not exceed the prescribed amount. Section 123(6) is related to Section 73(3). If the candidate incurs or authorises expenditure in excess of the prescribed amount in contravention of Section 77(3) he commits corrupt practice Under Section 123(6). The contravention ....
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....levant materials and convince the Election Commission that on that score, no order of disqualification can be passed. The said decision cannot however be relied upon to hold that the Election Commission has no power or jurisdiction to enquire into the complaint, which has now been made against the Appellant. ( 74. ) AT the end we can profitably refer to the basics of our democracy, which have been succinctly stated by His Lordship Justice V.R. Krishna Iyer in the Constitution Bench decision reported in Mohinder Singh Gill and Anr. v. Chief Election Commission, New Delhi and Ors. - : 1978 (1) SCC 405. To borrow His Lordship's expression stated in paragraph 2, the same are as under: 2. Every significant case has an unwritten legend and indelible lesson. This appeal is no exception, whatever its formal result. The message, as we will see at the end of the decision, relates to the pervasive philosophy of democratic elections which Sir Winston Churchill vivified in matchless words: 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 volum....
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....ublication was borne by the party and, therefore, the question to be considered was as to whether the expenses incurred by the party for publishing the advertisement can be held to be expenses incurred or authorized by the Appellant. The Division Bench also took note of the decision of this Court in Common Cause (A Registered Society) (supra), wherein it was held that even if expenses are claimed by the party, the presumption should be that the said expenses shall be incurred or authorized by the candidate, which presumption however is rebuttable. The relevant paragraph of the abovementioned decision on this proposition has been extracted in the earlier part of the judgment. ( 76. ) AFTER noting the above settled principle, the Division Bench proceeded to find out whether the said expenses claimed to have been incurred by the party can be treated to be expenses incurred or authorized by the Appellant. The Division Bench thereafter reached the following conclusion: Section 77 of the Representation of People Act, 1951, as amended by Act No. 46 of 2003, Explanation -I, clearly provides that expenditure incurred by the leaders of political party on account of travel by air or by any....
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....s as to whether the expenditure expenses incurred for publishing two advertisements on 17th April, 2007 in the newspapers 'Amar Ujala' and Dainik Jagaran' were shown in the account of expenses submitted by the Petitioner Under Section 78 of the Representation of People Act, 1951. There is no dispute between the parties that advertisement was published on 17th April, 2007 in the aforesaid two newspapers. Copy of the advertisements have been filed as Annexure - 1 and 2 to the writ petition. The election Commission of India has specifically considered the advertisement published in the newspaper 'Dainik Jagran' on 17th April, 2010. The advertisement in the newspaper is in a block and in the bottom of the block the word 'Advt' has been mentioned. However, the advertisement has been disguised as a news item and the newspaper publication mentions that leaning of voters of Bisauli constituency is in favour of Smt. Umlesh Yadav, the Petitioner. In the advertisement name of Petitioner has been mentioned in several places and also the names of large number of persons have been mentioned quoting their view that they are in favour of the Petitioner. The said publica....
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....hotostat copies of the aforesaid two news publications as published in 'Amar Ujala' and 'Dainik Jagaran' dated 17.04.2007 are being annexed herewith and marked as Annexure -1 and 2, respectively, to this writ petition. In the writ petition, the Petitioner has now having come with the plea that advertisements were got published by Rashtriya Parivartan Dal and the payment of publication was borne by the party, now the question to be considered is as to whether expenses incurred by the party for publishing the advertisement can be held to be expenses incurred or authorized by the Petitioner. ( 78. ) APART from noting the above factual aspects relating to the expenses claimed to have been incurred by the party, which claim of the Appellant was rejected by the Election Commission and also confirmed by the Division Bench of the High Court, the High Court considered the various decisions relied upon by on behalf of the Appellant and held as under: The Election Commission of India considered the entire facts and circumstances of the present case, the reply submitted by the Petitioner on 22nd July, 2011 as well as the supplementary reply dated 4th April, 2011 and has righ....