TaxTMI 
TaxTMI 
2021 (12) TMI 1316
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.... Bagh, NCT of Delhi [hereafter referred to as "Karol Bagh Constituency"] held on 08.02.2020 be declared null and void, is founded on the assertions which do not disclose any cause of action. 2.1 In this context, applicant/respondent no. 1 has averred that the petitioner has made two principal allegations against him: (i) First, that the applicant/respondent no. 1 has disclosed in his affidavit filed in the prescribed form i.e., Form-26 along with his nomination, that his educational qualification is "Matric (10th) passed from National Institute of Open Schooling (NIOS) (2003)"; which according to the petitioner is false. (ii) Second, that there is no disclosure concerning the pendency of the First Information Report (FIR) registered at Police Station, Paharganj, Delhi in Form-26. 2.2. Insofar as the first allegation is concerned, reference is made to paragraph 12(iii) of the election petition. 2.3. As regards the second allegation, the applicant/respondent no. 1, says that registration of an FIR does not tantamount in law to pendency of the criminal proceedings, and therefore, would also not furnish any cause of action against him. 2.4. It is also asse....
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.... (iii) As per various judgments rendered by the Supreme Court and High Court, the applicant/respondent no. 1 was required to disclose material facts concerning his criminal antecedents and education. (iv) Thirdly, the petition has been properly verified, as per the provisions of Order VI Rule 15(2) of the CPC. (v) Fourthly, the assertion that since full particulars of corrupt practices have not been set forth in the election petition, it is liable to be dismissed due to non-compliance of the provisions of Section 83(1)(b) of the 1951 Act, is untenable. (vi) Fifthly, the affidavit which has been filed along with the election petition conforms to Form 25, prescribed under Rule 94A of the 1961 Rules. (vii) In sum, the petitioner asserts that the application is liable to be dismissed. 4. The arguments on behalf of the applicant/respondent no. 1 were advanced by Mr. Anupam Srivastava, while the arguments on behalf of the petitioner were advanced by Mr. Abhijat. 5. Mr. Srivastava's arguments can be, broadly, paraphrased as follows: (i) A bare perusal of the documents placed on record by the petitioner, in support of the assertion....
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....rue to the knowledge of the affiant i.e., the petitioner and those that are based on information, received and believed to be true. [See R.P. Moidutty vs. P.T. Kunju Mohammad and Ors. AIR 2000 SC 388] (v) Since the petitioner claims that applicant/respondent no. 1 is guilty of corrupt practices in terms of Section 123(4) of the 1951 Act, he was required to give full particulars qua this assertion; an aspect which does not find mention. (vi) Insofar as the alleged false declaration of educational qualification is concerned, in law, it does not constitute a corrupt practice [See M.J. Zakharia Sait vs. T.M. Mohammed and Ors. (1990) 3 SCC 396 @ paragraphs 6 & 10 and Anil Vasudev Salgaonkar vs. Naresh Kushali Shigaonkar (2009) 9 SCC 310] (vii) Lastly, the affidavit accompanying the election petition is not framed in accordance with Form-25, as prescribed under Rule 94A of the 1961 Rules. 6. On the other hand, Mr. Abhijat contended that while adjudicating upon an application under Order VII Rule 11 of the CPC, the Court has to look only to the assertions made by the petitioner and the documents filed in support of the same. In other words, this Court is not ....
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....no. 1 is given as 19.05.1983 and the name of the father is set forth as "Krishan Chand Ravi", whereas the document placed on record, to which a reference is made above by the petitioner, the date of birth of the applicant/respondent no. 1 is indicated as 19.05.1984 and the father's name as "Kishan Chand Ravi"; the alphabet "R" is missing from the father's first name. 6.6. Information received through inquiries made under the Right to Information Act, 2005 reveal that both the documents concern the same person, although they bear two different enrolment numbers i.e., 91771200133 and 27026922399. However, both enrolment numbers are not valid because the learner's admission is valid only for five years [See Nand Kishore Garg vs. Jitender Singh Tomar and Bidisa Chakraborty vs. Indira Gandhi National Open University.] 6.7. The submission of the applicant/respondent no. 1 that the election petition ought to be rejected because the verification made is not in accordance with the provisions of Order VI Rule 15(2) of the CPC or that there is a failure to comply with the provisions of Section 83(1)(b) of the 1951 Act, or even that the affidavit filed along with the said pet....
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....cation is as under: Matric (10th) Passed from National Institute of Open Schooling (NOIS) [2003] 11. Highest educational qualification: Matric (10th) Passed from National Institute of Open Schooling 2003..." 8.3. On 22.01.2020, the petitioner filed objections qua the nomination filed by applicant/respondent no. 1. The Returning Officer rejected the objections filed by the petitioner, vide order dated 22.01.2020. 8.4. Being aggrieved by the decision of the Returning Officer, the petitioner filed a writ petition in this Court i.e., W.P. (C) No. 1238/2020. This writ petition was dismissed by the court on 03.02.2020. The petitioner assailed the said order of the learned Single Judge by way of an appeal i.e., LPA No. 70/2020. It is claimed on behalf of the petitioner that the appeal is pending adjudication. 8.5. In consonance with the poll notification, elections were held on 08.02.2020. The election result was declared on 11.02.2020. The applicant/respondent no. 1 was declared successful, from the Karol Bagh Constituency. The declaration of the result was, formally, notified on 12.02.2020. 8.6. It is in this backdrop that the instant election petition was ....
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....ovable, bank balance, etc.) of a candidate and of his/her spouse and that of dependants. (4) Liabilities, if any, particularly whether there are any overdues of any public financial institution or government dues. (5) The educational qualifications of the candidate." 10.2. It appears that the 1951 Act was amended which led to the insertion of Section 33A and 33B of the 1951 Act. The sum total of this exercise was that the amendments made to the 1951 Act did not carry through the directions issued by the Supreme Court in the Association of Democratic Reforms case, which led to the second round of litigation. In the matter of People's Union for Civil Liberties vs. Union of India & Anr., (2003) 4 SCC 399, the Supreme Court, via a majority decision, reaffirmed the disclosure requirements stipulated in its earlier judgment rendered in Association of Democratic Reforms case. 10.3. Therefore, what emerges, is that as per the law which obtains at present the candidate who files his nomination is required, inter alia, to disclose his educational qualifications as also his past convictions including fines imposed, imprisonments suffered, acquittals/discharge, if a....
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....closure of information by a candidate while filing his nomination. 11. Insofar as the submission made by Mr. Srivastava that the allegation made against the applicant/respondent no. 1 that he had falsely claimed that he had passed Class-X examination in 2003 was not liable to be sustained [since the document filed in support of the same was a copy of the Academic Examination Result ostensibly issued by NIOS for May 2002, wherein the applicant/respondent no. 1 was shown as having absented himself and not failed], is not tenable, as at this stage, the apparent dissonance between the pleading and the document would not be enough to reject the election petition. 11.1. The reason being that a careful perusal of the election petition would show that there are assertions made in paragraph 12, which seek to demonstrate that applicant/respondent no. 1 has been taking inconsistent stands concerning the highest educational qualification secured by him. 11.2. It is averred that as per Form-26 filed in 2013, the applicant/respondent no. 1 claimed that he had obtained a degree in B.Com.in 2008 from CCS University, whereas in Form- 26 filed in 2015, the applicant/respondent no. 1 claimed....
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....so to Section 83(1) of the Act is fatal to the election petition is no longer res Integra in the light of a three-Judge Bench decision of this Court in Sardar Harcharan Singh Brar v. Sukh Darshan Singh. In that case a plea based on a defective affidavit was raised before the High Court resulting in the dismissal of the election petition. In appeal against the said order, this Court held that noncompliance with the proviso to Section 83 of the Act did not attract an order of dismissal of an election petition in terms of Section 86 thereof. Section 86 of the Act does not provide for dismissal of an election petition on the ground that the same does not comply with the provisions of Section 83 of the Act. It sanctions dismissal of an election petition for non-compliance with Sections 81, 82 and 117 of the Act only. Such being the position, the defect if any in the verification of the affidavit filed in support of the petition was not fatal, no matter the proviso to Section 83(1) was couched in a mandatory form." 44. The issue having been considered several times by this Court must now be allowed to rest at that." 24. We may take note of the Constitution Bench judgmen....
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.... defect by filing an affidavit in the prescribed form. 26. The arguments of learned counsel for respondent No. 1 were predicated on the distinction between the absence of an affidavit and a defective affidavit. This presupposes that for an opportunity of cure to be granted, there must be the submission of a Form 25 affidavit which may be defective. This would be very narrow reading of the provisions. Once there is an affidavit, albeit not in Form 25, the appropriate course would be to permit an affidavit to be filed in Form 25. We have to appreciate that the petition is at a threshold stage. It is not as if the appellant has failed to cure the defect even on being pointed out so. This is not a case where the filing of an affidavit now in Form 25 would grant an opportunity for embellishment as is sought to be urged on behalf of respondent No. 1. 27. The appellant states the case clearly and in no uncertain terms with supporting material in the election petition. Whether the violation is made out by respondent no. 1 or not would be a matter of trial but certainly not a matter to be shut out at the threshold."] In any event, these are the aspects that can be put t....