TaxTMI 
TaxTMI 
1981 (1) TMI 291
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....e void under Section 100(1) of the Act, on the ground that he was disqualified from being chosen as a candidate within the meaning of Section 8(2) of the Act. The material facts are as follows : The respondent and the appellant contested the election as rival candidates, to the Lok Sabha from No. 18, Mahasamund Parliamentary Constituency in Madhya Pradesh. The last date for filing nominations was December 7, 1979. The scrutiny of the nomination papers took place on December 11. 1979. 3. The respondent raised an objection to the validity of the appellant's nomination before the Returning Officer at the time of the scrutiny. The objection was that the appellant had been convicted and sentenced to imprisonment exceeding two years by the Sessions Judge. Delhi on Feb. 22/27, 1979 and, as such, the appellant was disqualified from being chosen as a candidate in view of Sub-section (2) of Section 8 of the Act. The Returning Officer, by his order dated December 11, 1979, rejected the objection and accepted the appellant's nomination as valid. The result of the election was declared on January 7, 1980. The election result was notified on Jan. 10, 1980. The appellant....
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....and Dilbagh Rai Jarry v. Divisional Superintendent. (3) The invalidity of the appellant's election, in the instant case, was to be test ed under Clause (a) and not under Clause (d)(i) of Section 100(1) of the Act, because: (a)(i) "Election" within the meaning of Section 100(1)(a) connotes the entire process of election commencing with the filing of nominations and ending with the declaration of the result of the poll. The stage of the scrutiny of the nominations and their acceptance or rejection was an important step of the election process and, as such, was an integral part of the 'election' Reliance on this point has been placed on the decisions of this Court in N. P. Ponnuswami v. Returning Officer, Namakkal Constituency [1952]1SCR218 and M. S. Gill v. Chief Election Commr. [1978]2SCR272 . (ii) The term "disqualified" in Clause (a) of Section 100(1), as defined in Section 7(b) means "disqualified for being chosen as, and for being, a member of either House of Parliament, etc.", and the expression "being chosen", (which is the language of Article 102 of the Constitution also) has been interpreted by this Court in Chaturbhuj....
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....ffect of suspension of the sentence made by the trial court and thereafter by the High Court pending the appeal, would be that the disqualification automatically stood eclipsed. (This point was also not pressed). 8. On the other hand, Shri S.N. Kacker, learned Counsel for the respondent, made these submissions: (1) Article 102(1)(e) of the Constitution provides that "a person shall be disqualified for being chosen as, and for being, a member of either House of Parliament... " "if he is so disqualified by or under any law made by Parliament'. Under Section 8(2) of the Representation of the People Act, 1951 which is a law made by Parliament the appellant on account of his conviction and sentence exceeding two years, was disqualified at the date of scrutiny of nominations and the Returning Officer was bound in view of Section 36(2)(a), of the Act, to take into account only such facts as they stood on the date of the scrutiny, which is an integral step in the process of election i.e. process of "being chosen". (Reference has been made in this connection to Chaturbhuj's case [1954]1SCR817 and Chandan Lal v. Ram Dass 41 ELR 214: 1969 SCR 475. (2) ....
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....laid down in Manni Lal's case (ibid) to the effect that subsequent acquittal by the appellate court in a criminal matter has the effect of wiping out the conviction from the date of its very inception, is not applicable to the case in hand because: (a) Manni Lal's case was one under Section 100(1)(a): while the present case is under Section 100(1)(d)(i): (b) in Manni Lal's case the returned candidate was not disqualified on the date of the scrutiny; whereas in the instant case the disqualification of the appellant did in fact exist on the date of the scrutiny, although the same may have ceased to exist in point of law due to his subsequent acquittal; and (c) Section 36(2)(a) fixes a date for judging the qualification of a candidate, and if the legal fiction of retrospective repeal is applied to the case of subsequent acquittal wiping out the disqualification which in fact existed on the date of scrutiny, Section 36(2)(a) could be rendered nugatory and several inconsistent situations could arise. (7) In sum, the instant case, being one under Section 100(1)(d)(i) falls within the ratio of this Court's decision in Amritlal A....
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....appended to this section, which is not material for our purpose. 13. Chapter I of Part V includes Sections 30 to 39 under the main heading "Nomination of Candidates". Section 30 requires the Election Commission to appoint dates for making nominations, scrutiny of nominations, withdrawal by candidates, for poll and also to specify the date before which the election shall be completed. The provision in Clause (b) requires that the date for the scrutiny of nominations shall be the date immediately following the last date for making nominations or, if that day is a public holiday, the next succeeding day which is not a public holiday. Section 32 lays down that any person may be nominated as a candidate for election to fill a seat if he is qualified to be chosen to fill that seat under the provisions of the Constitution and this Act, or under the provisions of the Government of Union Territories Act, 1963 (20 of 1963), as the case may be. 14. Section 36 deals with scrutiny of nominations. Sub-section (2)(a) of the Section is material. It reads thus: (2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made t....
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....the Amendment of 1956, Section 100, so far as material, was as follows : (1) If the Tribunal is of opinion (a) ... (b) ... (c) that the result of the election has been materially affected by the improper acceptance or rejection of any nomination, the Tribunal shall declare the election to be wholly void. Explanation.- ... (2) Subject to the provisions of Sub-section (1) if the Tribunal is of opinion- (a) ... (b) ... (c) that the result of the election has been materially affected by the improper reception or refusal of a vote or by the reception of any vote which is void or by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act or of any other Act or rules relating to the election, or by any mistake in the use of any prescribed form, the Tribunal shall declare the election of the returned candidate to be void. 17. In Durga Shankar Mehta v. Thakur Raghuraj Singh [1955]1SCR267 nominations were filed for a double member Legislative Assembly Constituency in Madhya Pradesh. No objection was....
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....in Durga Shanker Mehta's case [1955]1SCR267 , Parliament in 1956 amended Section 100 along with Sections 36, 123, 124 and 125 of the Act. By this Amendment, the various clauses of Sub-sections (1) and (2) were rearranged and recast and simplified in accordance with the recommendations of the Select Committee of Parliament, "that Sub-sections (1) and (2) of existing Section 100 should be suit ably combined retaining the substance of the existing law and at the same time making the law simple and easily intelligible. 21. Now, Section 100, as amended by the Amending Act of 1956 and subsequent Amendment Acts, reads as under: 100. Grounds for declaring election to be void- (1) Subject to the provisions of Sub-section (2) if the High Court is of opinion- (a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of 1963); or (b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other per son with the consent of a retu....
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....t concerns the returned candidate has been materially affected". The expression "any nomination" occurring in Sub-clause (i) of Clause (d) in the second part may include nomination of a returned candidate as well; but in the case of a returned candidate whose nomination has been improperly accepted, the effect on the result of the election so far as it concerns him, is obvious. However, if the election is challenged on the ground that the nomination of a candidate, other than the returned candidate, has been improperly accepted, the petitioner in order to succeed will be required to prove under Clause (d)(i), in addition to improper acceptance, the further fact that thereby the result of the election so far as it concerns the returned candidate has been materially affected. 23. Clause (a) of Sub-section (1) appears to require that the disqualification or lack of qualification of the returned candidate is to be judged with reference to "the date of his election", which date, according to Section 67A, is "the date on which a candidate is declared by the returning officer under the provisions of Section 53 or Section 66, to be elected to a House of Parliament or of the Legislature ....
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....ase falls under Clause (d)(i) and not under Clause (a) of Section 100(1). Learned Counsel has conceded that if Clause (a) were applicable, the case would have been within the ratio of Manni Lal's case [1971]1SCR798 and that was why at the stage of arguments before the High Court, the challenge under Clause (a) of the sub-section was given up. We will therefore, assume that technically the election-petitioner's case that survives is one under Clause (d)(i), and not under Clause (a) of Section 100(1). Even so, the fact remains that, in sub stance, the election of the appellant is being challenged on the ground that on account of his conviction and sentence exceeding two years, the appellant was under Article 102(1)(e) of the Constitution read with Sections 3(2) and 36(2)(a) of the Act, disqualified for being chosen to fill the seat concerned. Such being the real ground of challenge, apart from Sub-clause (i), Sub-clause (iv) of Clause (d) of Section 100(1) will also be attracted. This is so, because the phrase "noncompliance with the provisions of the Constitution or of this Act etc.", according to the decision of this Court in Durga Shanker Mehta's case [1955]1SCR267 , i....
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....gh Court and his conviction and sentence were set aside. 29. The question for decision before the Court was: What was the effect of the acquittal in appeal of the returned candidate before the decision of the election-petition, on his conviction and sentence, which was the main ground on which he was alleged to be disqualified for being chosen ? The Bench presided over by J.C. Shah, J. (as he then was) answered this question, thus: it is clear that, though the conviction of respondent No. 1 was recorded by the trial court on 11th January, 1969, he was acquitted on 30th Sept. 1969 in appeal which acquittal had the effect of completely wiping out the conviction. The appeal having once been allowed, it has to be held that the conviction and sentence were vacated with effect from the date on which the conviction was recorded and the sentence awarded. In a criminal case, acquittal in appeal does not take effect merely from the date of the appellate order setting aside the conviction it has the effect of retrospectively wiping out the conviction and the sentence awarded by the lower court. The disqualification relied upon by the appellant was laid under Section 8(2) of ....
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....s added) 30. The essence of the decision is in the sentences which have been under lined by us in the above extract. In sum, what was laid down in Manni Lal's case [1971]1SCR798 was that if the disqualification of the returned candidate, viz. his conviction and sentence exceeding two years' imprisonment which existed as a fact at the date of election, is subsequently set aside by the appellate Court, then a challenge to his election on the ground under Section 100(1)(a) of the Act, in an election-petition pending in the High Court at the date of such acquittal, must fail because the acquittal has the effect of retrospectively wiping out the disqualification as completely and effectively as if it never had existed. 31. In other words, the ratio decidendi logically deducible from the above extract, is that if the successful candidate is disqualified for being chosen, at the date of his election or at any earlier stage of any step in the election process on account of his conviction and sentence exceeding two years' imprisonment, but his conviction and sentence are set aside and he is acquitted on appeal before the pronouncement of judgment in the election-petition p....
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.... such disqualification of the successful candidate existed not only at the date of his 'election' as defined in Section 67A, but also at the date of the poll, which was an earlier step in the process of "being chosen". As here, there also, such disqualification had been wiped out with retroactive force on account of his acquittal after the election, but before the decision of the election-petition by the High Court. Similar to the third point raised here, in Manni Lal also, it was contended that under Section 100(1)(a), the question whether the successful candidate was disqualified on the date of his election was to be determined with reference to the situation obtaining on that date only. This contention was repelled with the observation that such opinion had to be formed by the High Court at the time it proceeds to pronounce the judgment in the election-petition and the High Court had at that time before it the order of acquittal which had taken effect retrospectively from the date on which the conviction had been recorded by the trial court. Although the Court did not specifically say so, this reasoning employed by the Court in negativing the contention of the election-p....
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....a similar question under Clause (a) of Section 100(1). If, as laid down in Manni Lal's case [1971]1SCR798 the returned candidate cannot be said to be disqualified at the date of the election, if before or during the pendency of the election petition in the High Court his conviction is set aside and he is acquitted by the appellate Court, it must be held, on the application of the same principle, that, in like circumstances, the returned candidate cannot be said to be disqualified at the date of the scrutiny of the nomination papers. On this view, the appellant could not be said to be disqualified at the date of scrutiny of the nomination paper since his conviction was set aside in appeal by this Court and if that be so, the conclusion must inevitably follow that the nomination of the appellant was properly accepted by the Returning Officer. The position is analogous to that arising where a case is decided by a Tribunal on the basis of the law then prevailing and subsequently the law is amended with retrospective effect and it is then. held by the High Court in the exercise of its writ jurisdiction that the order of the Tribunal discloses an error of law apparent on the face of ....