TaxTMI 
TaxTMI 
2020 (12) TMI 1416
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.... in these appeals are as follows: - (i) By a notification dated 05.03.2018, the Election Commission of India notified the biennial elections for two seats in the Council of States from the State of Jharkhand; (ii) Three candidates by name Pradeep Kumar Sonthalia, Samir Uraon and Dhiraj Prasad Sahu, filed their nominations on 12.03.2018. It is stated that the first two candidates belonged to the Bharitya Janata Party (BJP), and the third candidate belonged to the Indian National Congress (INC); (iii) On 23.03.2018, the election was held between 9.00 A.M. and 4.00 P.M. at the Vidhan Sabha. A total of 80 members of the Legislative Assembly of the State of Jharkhand cast their votes; (iv) One Shri Amit Kumar Mahto who was an elected member of the Assembly belonging to Jharkhand Mukti Morcha Party (JMM) admittedly cast his vote at 9.15 A.M. on 23.03.2018; (v) As fate (not of the voter but of the contestant) would have it, Shri Amit Kumar Mahto was convicted by the Court of the Additional Judicial Commissioner XVIII, Ranchi, in Sessions Trial No.481 of 2010, for the offences punishable under Sections 147, 323/149, 341/149, 353/149, 427/149 and....
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....tence of two years in Sessions Trial No. 481 of 2010 by the Additional Judicial Commissioner-XVIII, Ranchi, Shri Amit Kumar Mahto ceased to be a Member of Legislative Assembly and his disqualification came into effect immediately from the date of his conviction and sentence of two years and, therefore, the vote of Shri Amit Kumar Mahto could not have been taken into consideration at the time of counting? 3. Whether the disqualification of Shri Amit Kumar Mahto rendered his vote void/illegal that was cast to respondent no.1 and, therefore, reception of his vote was improper and, thus, in terms of Section 100 (1) (d) (iii) of the Representation of People Act, 1951, the election of respondent no. 1 is liable to be declared void? 4. Whether the communication from the Returning Officer (e-mail dated 24.03.2018) rejecting the objection made on behalf of the petitioner on the ground that the Returning Officer had not received the judgment of conviction of Shri Amit Kumar Mahto till the declaration of the results, is absolutely illegal and unlawful? 5. Whether disqualification of Shri Amit Kumar Mahto in terms of Section 8 (3) of the Representation of People Act,....
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....ri Dhiraj Prasad Sahu. Unless Shri Amit Kumar Mahto had cast his vote in favour of Shri Dhiraj Prasad Sahu, the entire edifice on which the election petition was built could have crumbled. Therefore, the Returning Officer, Mr. Binay Kumar Singh was examined as PW-1 and through him the original ballot paper by which Shri Amit Kumar Mahto cast his vote was marked as Exhibit-9. On the basis of the same, the High Court came to the conclusion that Shri Amit Kumar Mahto cast his vote in favour of Shri Dhiraj Prasad Sahu, the Congress candidate. It was also clear from the evidence of PW-1 and Exhibit-9 that Shri Amit Kumar Mahto did not cast his 2nd, 3rd and 4th preference vote. Therefore, the validity of the vote cast by Amit Kumar Mahto assumed significance, especially in view of the margin of victory. 6. Since the factual position that Amit Kumar Mahto cast his vote in favour of Dhiraj Prasad Sahu has now become unassailable, many of the issues framed by the High Court have now paled into insignificance. There are only 2 issues which now survive for consideration and they are: - (i) Whether the vote admittedly cast by Shri Amit Kumar Mahto in favour of Shri Dhiraj Prasad Sa....
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....r to test the veracity of the above contention, it is necessary first to take note of the relevant provisions of the Constitution and the Representation of the People Act, 1951. 11. Article 191 of the Constitution speaks of the circumstances under which a person will be treated as disqualified (i) either for being chosen as (ii) or for being, a member of the State Legislative Assembly. The language of Article 191 makes it clear that it covers both a contest in an election and the continuance in office after getting elected. It reads as follows: - "191. Disqualifications for membership (1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State (a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder; (b) if he is of unsound mind and stands so declared by a competent court; (c) if he is an undischarged insolvent; (d) if he is not a citizen of India, or has voluntarily acquired ....
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....e ceases to be an elector in relation to election by assembly member and cannot cast his vote. 14. The Representation of the People Act, 1951 was enacted for the purpose of providing for the conduct of elections of both houses of Parliament and to the House/Houses of State Legislatures, the qualifications and disqualifications for membership of those houses, the corrupt practices etc.,. Section 8 of the Act deals with disqualification on conviction for certain offences. For the purpose of disqualification, the offences are classified in section 8 into 3 categories, namely (i) offences falling under sub-section (1) (ii) offences falling under sub-section (1) and (iii) offences not falling either under sub-section (1) or under subsection (2). 15. The disqualification results in the Member becoming liable to be removed from the list of voters under Section 152 of the Representation of the People Act, 1951, though the actual deletion may take time. In any case, he ceases to be an elector vide Rule 2(d) of the Conduct of Election Rules, 1961 which provides that an elector in relation to an election by assembly members means any person entitled to vote at....
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....hey are ingrained in the statute itself. We may usefully extract the relevant portion of the decision in Jyoti Basu which reads as follows: - "8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An Election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the Common Law nor the principles of Equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statutory creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied". 21. Placing heavy reliance upon the decision of this Court in Pashupati Nath Singh vs. Harihar Prasad Singh AIR 1968 SC 1064, it is contended that ....
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....ntitled to qualify for being chosen to fill a seat till the very end of the date fixed for scrutiny of nominations. If the learned counsel for the petitioner is right, the candidate could ask the Returning Officer to wait till 11.55 p.m. on the date fixed for the scrutiny to enable him to take the oath". 24. In other words, this Court interpreted the words "date" in Pashupati Nath Singh, not necessarily to mean 00.01 A.M. to 24.00 P.M. This was despite the fact that in common parlance a date would mean 24 hours in time. But the running of time got arrested, the moment the nomination of the appellant in Pashupati Nath Singh was taken up for scrutiny. Thus, the benefit of the whole day of 24 hours was not made available by this court in Pashupati Nath Singh to the appellant therein and the act of the Returning officer in drawing the curtains down at the happening of the event namely scrutiny of nomination papers, was upheld by this court in Pashupati Nath Singh. 25. In fact, Pashupati Nath Singh can be said to be a mirror image or the converse of the case on hand. In the case on hand the period of commencement of an event is in question, while in Pashupati Nath Singh the period....
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.... of retirement, he would be taken to have attained the age of superannuation on January 1 by the very same logic, but at 2400 hours on January 1. But Rule 11B mandated that the candidate "must not have attained". Therefore, Prabhu Dayal Sesma also does not go to the rescue of the appellant. 28. Tarun Prasad Chatterjee vs. Dinanath Sharma (2000) 8 SCC 649, relied upon by the learned senior counsel for the appellant concerned the question of computation of the period of limitation for filing an Election petition under section 81(1) of the R.P. Act 1951. Therefore, this Court referred to Section 9 of the General Clauses Act, 1897 that laid down the manner in which statutes prescribing the commencement and termination of time, can be worded by using expressions such as "from" and "to". But this decision is also of no assistance to the appellant for the simple reason that Section 8(3) of the Act uses the word "from" as well as the expression "the date of conviction" and Tarun Prasad Chatterjee concerned the interpretation to be given only to the word "from". 29. In any case, Tarun Prasad Chatterjee need not have gone as far as the General Clauses Act, since Section 12(1) the Limit....
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....e of law which enforces 'minimum standard of fairness both substantive and procedural'. 35. In our view to hold that a Member of the Legislative Assembly stood disqualified even before he was convicted would grossly violate his substantive right to be treated as innocent until proved guilty. In Australia this principle has been described as an aspect of the rule of law "known both to Parliament and the Courts, upon which statutory language will be interpreted" K-Generation Pty. Ltd. vs. Liquor Licensing Court, (2009) 83 ALJR 327 para 47. 36. In the present case, it would be significant to add that it is not necessary to make a declaration incompatible in the use of the word "date" with the general rule of law since the word "date" is quite capable of meaning the point of time when the event took place rather than the whole day. 37. The well-known presumption that a man is innocent until he is found guilty, cannot be subverted because the words can accommodate both competing circumstances. While it is known that an acquittal operates on nativity, no case has been cited before us for the proposition that a conviction takes effect even a minute prior to itself. Moreover, the ....
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....he question that we are now confronted with. It was a case where (i) the effect of several sentences of imprisonment, each for a period of less than 2 years ordered to run consecutively and not concurrently, thereby totalling to more than the period prescribed under section 8(3) of the Act and (ii) the effect of the decision of the Appellate Court rendered in a criminal case after the election was over, were in question. It is in that context that the Constitution Bench held in K Prabhakaran that Section 8 of the R.P Act has to be construed in harmony with the provisions of Cr.P.C so as to give effect to the provisions contained in both. 41. Cases arising under the law of insurance, have no relevance to cases of disqualification. Even under the law of insurance, different principles of interpretation have been carefully nurtured and developed. For instance, New India Assurance Company Limited vs. Ram Dayal & Ors. (1990) 2 SCC 680, this Court was concerned with a case where a vehicle had insurance cover upto 31.08.1984, which was not renewed. However, a fresh policy was taken on 28.09.1984. It was on the very same day that the vehicle got involved in an accident. The Motor Accide....
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....nsequence. A consequence can never precede the cause. If we accept the contention of the appellant, the consequence will be deemed to have occurred even before the cause surfaced. 44. It is contended by the learned Senior Counsel for the Returned candidate, that the Constitution also takes care of the contingency of disqualified persons sitting and voting despite suffering a disqualification and that a court cannot travel beyond what is so prescribed. Article 193 which takes care of this contingency reads as follows: - "193. Penalty for sitting and voting before making oath or affirmation under Article 188 or when not qualified or when disqualified. - If a person sits or votes as a member of the Legislative Assembly or the Legislative Council of a State before he has complied with the requirements of Article 188, or when he knows that he is not qualified or that he is disqualified for membership thereof, or that he is prohibited from so doing by the provisions of any law made by Parliament or the Legislature of the State, he shall be liable in respect of each day on which he so sits or votes to a penalty of five hundred rupees to be recovered as a debt due to t....
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....ne of the questions that arose for consideration was whether a person elected as a member of the Assembly but who has not made and subscribed the prescribed oath or affirmation as required by Article 188 can validly propose a person as a candidate at an election for filling a seat in the Rajya Sabha. This question arose under peculiar circumstances. The elections to the Legislative Assembly of the State of Uttar Pradesh were held in May, 1980 and the notification containing the names of elected members was issued on 09.06.1980 under Section 73 of the Representation of the People Act, 1951. The elected members were notified that they could take oath as required by Article 188 at the Session of the Assembly summoned to meet on 27.06.1980. But in the meantime, election for filling up a vacancy in the Rajya Sabha was notified on 17.06.1980. Therefore, the proposal of the name of a candidate for election to the Rajya Sabha, made by an elected member who was yet to take oath under Article 188, was objected to. The objection was overruled and the nominated candidate won the election. Therefore, the question as stated above arose, before this Court in an Election Petition. 51. Article 1....
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....01 a.m. can be best understood if we apply the same to a reverse situation. If in a hypothetical situation, the conviction and sentence had taken place in the forenoon and Shri Amit Kumar Mahto had cast his vote in the afternoon, the defeated candidate would not have argued that the voting should be deemed to have taken place at 00:01 a.m. 55. In any case the principle that the acts of the officers de facto performed within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally regarded as valid and binding as if they were the acts of the officers de jure, articulated in Pulin Behari Das & Ors. vs. King Emperor (1912) 15 Cal.LJ 517, was invoked by this Court in Gokaraju Rangaraju vs. State of Andhra Pradesh (1981) 3 SCC 132 when a question arose as to the validity of the judgments pronounced by an Additional Session Judge whose appointment was declared by the Court to be invalid subsequently. This Court pointed out that the de facto doctrine is founded on good sense, sound policy and practical expedience and that it is aimed at the prevention of public and private mischief and the protection of p....