TaxTMI 
TaxTMI 
2025 (11) TMI 499
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....der the provisions of The Madhya Pradesh Municipalities Act, 1961. The revision application preferred by the petitioner having been dismissed, she has preferred the present Special Leave Petition. 2. In the elections held for the post of Councillor at Nagar Parishad, Bhikangaon, the petitioner came to be elected from Ward No.5 securing the highest number of votes. Notification to that effect dated 04.10.2022 came to be issued. The first respondent filed an election petition under Section 20 of the Madhya Pradesh Municipalities Act, 1961 (hereinafter, "the Act of 1961") read with The Madhya Pradesh Nagar Palika Nirvachan Niyam, 1994 (hereinafter "the Rules of 1994") and sought a declaration that the petitioner be held disqualified for holding the post of Councillor and that her seat be declared as vacant. In the election petition, it was pleaded by the first respondent that on 07.08.2018, the petitioner had been convicted in proceedings filed under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter, "the Act of 1881"). She had been sentenced to suffer rigorous imprisonment for a period of one year and also ordered to pay compensation. The fact of her conviction, how....
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....ose the fact of her conviction in her affidavit filed along with the nomination form. This resulted in breach of Rules 24-A of the Rules of 1994. Consequently, the provisions of Section 22(1) (d) (iii) of the Act of 1961 were attracted and the same was the ground for declaring the election of the petitioner to be void. While arriving at this finding, it was observed that the petitioner did not enter into the witness box to establish that by failing to disclose her conviction, her election was not materially affected nor did it influence the election. The judgment of the trial Court was thus upheld by recording a finding that by failing to disclose her conviction in the affidavit filed along with nomination form, there was a breach of Rule 24-A of the Rules of 1994 and the petitioner's election was rightly set aside. The revision application was thus dismissed. Being aggrieved, the petitioner has approached this Court under Article 136 of the Constitution of India 6. Mr. Vivek Tankha, learned Senior Advocate for the petitioner made the following submissions: a. The election of the petitioner was wrongly declared as null and void. Assuming that there was a failure on the ....
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....this submission the learned Advocate placed reliance on the decisions in Resurgence India Vs. Election Commission of India and another 2013 INSC 617 and Krishnamoorthy Vs. Shivakumar and others 2015 INSC 960. b. Since the petitioner was convicted on 07.08.2018 and the said conviction continued to operate when the nomination form was filed, the subsequent acquittal of the petitioner on 30.12.2022 after the elections were held was of no consequence. The eligibility of a candidate was required to be determined as on the date of submission of the nomination form. Both the Courts had rightly found that the conviction of the petitioner was operating when she had submitted the nomination form. c. After the election of the petitioner was set aside, fresh elections were held to fill in the vacancy as caused. The petitioner had again contested the said election but was unsuccessful. Since the petitioner had lost the subsequent election, the challenge raised by her to the order passed by the trial Court had now been rendered infructuous. On these grounds, it was urged that there was no case made out to interfere with the impugned adjudication. 8. We have heard the lear....
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....proper acceptance of any nomination; or (ii) by the improper acceptance or refusal of any vote or reception of any vote which is void; or (iii) by the non-compliance with the provisions of this Act or of any rules or orders-made there under save the rules framed under Section 14 in so far as they relate to preparation and revision of list of voters; he shall declare the election or nomination of the returned candidate to be void." The aforesaid statutory provisions indicate that the election of returned candidate can be declared to be void on account of improper acceptance of his/her nomination form or on account of non-compliance with the provisions of the Act of 1961 or the Rules of 1994 or orders made thereunder. 10. Rule 24-A of the Rules of 1994 requires each candidate to furnish information with regard to declaration of criminal antecedents, assets, liabilities and educational qualifications. The said provision insofar as it is relevant for the present purpose reads as under: "24-A. (1) Each candidate shall furnish the information relating to -Declaration of criminal antecedent, assets, liabilities and educational qualification- ....
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....is affidavit are true and correct to the best of my knowledge and belief and no part of it is false and nothing material has been concealed there from. I further declare that: (a) There is no case of conviction or pending case against me other than those mentioned in items 5 and 6 of part A and B above; (b) I, my spouse, or my dependents do not have any asset or liability, other than those mentioned in items 7 and 8 of Part A and items 8, 9 and 10 of Part B above. Verified at this day of 09/09/2022 DEPONENT (emphasis supplied by us) 12. Undisputably, the petitioner was convicted on 07.08.2018 under Section 138 of the Act of 1881. The conviction was in force when the petitioner submitted her nomination form on 09.09.2022. In the affidavit filed under Rule 24-A of the Rules of 1994, the petitioner failed to disclose her conviction as stated above. To that extent, the plea raised by the first respondent and accepted by both Courts that there was a failure on the part of the petitioner in not disclosing her conviction in the affidavit filed under Rule 24-A of the Rules of 1994 which in turn resulted in non-compliance with the provisions of the Act of....
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....ormation only is bound to affect the democracy seriously. Freedom of speech and expression includes right to impart and receive information which includes freedom to hold opinions. Entertainment is implied in freedom of 'speech and expression' and there is no reason to hold that freedom of speech and expression would not cover right to get material information with regard to a candidate who is contesting election for a post which is of utmost importance in the democracy." It thereafter concluded as under: "Under our Constitution, Article 19(1)(a) provides for freedom of speech and expression. Voters' speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is must. Voter's (little man citizen's) right to know antecedents including criminal past of his candidate contesting election for MP or MLA is much more fundamental and basic for survival of democracy. The little man may think over before making his choice of electing law breakers as law makers." 15. It is an admitted position that, the petitioner failed to dis....
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....er the Act of 1961. To substantiate this contention he sought to derive support from the decisions of this Court in Ravi Namboothiri and Karikho Kri (supra). Having considered both these decisions, we find that the same are clearly distinguishable in view of the statutory provisions involved therein as well as the relevant factual aspects. In Ravi Namboothiri (supra), the appellant therein was finally convicted for the offence punishable under Section 38 read with Section 52 of the Kerala Police Act, 1961 and was sentenced to a fine of Rs. 200/-. The said appellant however while filing his nomination for the elections to the Panchayat failed to disclose the fact of his conviction under Section 38 read with Section 52 of the Kerala Police Act, 1961. On this count his election to the Panchayat was set aside as he had suppressed information with regard to his past conviction. The appellant challenged his disqualification before this Court. It was found that what was required to be disclosed under Section 52(1A) of the Kerala Panchayat Raj Act, 1994 were the details with regard to criminal cases in which the candidate was involved at the time of submission of his nomination. Referen....
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....2 of the Kerala Police Act, 1961. There was no sentence of imprisonment. In the present case, the petitioner after her conviction was sentenced to an imprisonment for a period of one year. The affidavit required to be filed under Rule 24-A (1) of the Rules of 1994 specifically requires furnishing of details as regards any sentence of imprisonment for a period of one year or more. The statutory requirement in the present case is thus distinct from the requirements in Ravi Namboothiri (supra) which makes the said decision distinguishable. 18. In Karikho Kri (supra), the successful candidate in the assembly elections was found to have not disclosed in his affidavit details with regard to ownership of vehicles, failure to submit no dues certificate with regard to electricity charges and municipal dues. His election was declared to be void under Section 100 (1)(d)(i) of the Representation of the People Act, 1951. While considering the challenge to the judgment of the High Court, this Court found that the vehicles in question had either been gifted or sold by the appellant prior to filing of his nomination and hence the said vehicles could not be considered to be owned by his famil....
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....uch information along with an affidavit as prescribed visits a candidate with the consequence of non-compliance of the provisions of the Rules of 1994. This in turn is a ground to challenge the election of the returned candidate. In absence of any provision in the Rules of 1994 that would enable the Court to condone such non-compliance or exempt its compliance on the ground that the conviction was for a non-serious offence or one not involving moral turpitude, adopting such course as urged would do violence to the Act of 1961 and the Rules of 1994. 20. At this stage, we may refer to the decision of this Court in Krishnamoorthy (supra) wherein this Court considered the effect of non-disclosure of criminal cases in respect of serious offences including those involving moral turpitude. After noting that the right to contest an election was neither a fundamental right nor a common law right, it was observed as under: "The controversy which has emanated in this case is whether non-furnishing of the information while filing an affidavit pertaining to criminal cases, especially cases involving heinous or serious crimes or relating to corruption or moral turpitude would tantamo....
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....fence was always intended to be condoned and not viewed seriously. 21. The plea raised by the petitioner that her election could not be set aside in the absence of it being proved that the result of the election had been materially affected on account of the improper acceptance of her nomination form need not detain us. Once it is found that there has been non-disclosure of a previous conviction by a candidate, it creates an impediment in the free exercise of electoral right by a voter. A voter is thus deprived of making an informed and advised choice. It would be a case of suppression/non-disclosure by such candidate, which renders the election void. 22. In this regard, we may refer to the decision in Kisan Shankar Kathore vs. Arun Dattatray Sawant & Others 2014 INSC 384. Therein the election of the returned candidate to the Legislative Assembly was challenged by a voter from the constituency on the ground that the nomination form of the returned candidate had been improperly accepted by the Returning Officer and that the election was void due to non-compliance of the provisions of the Representation of the People Act, 1951. There were in all five candidates in the fray. In ....
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....d offences). Those are matters which are fundamental to the accomplishment of free and fair election. It is the fundamental right of the voters to be informed about all matters in relation to such details for electing candidate of their choice. Filing of complete information and to make truthful disclosure in respect of such matters is the duty of the candidate who offers himself or who is nominated for election to represent the voters from that Constituency. As the candidate has to disclose this information on affidavit, the solemnity of affidavit cannot be allowed to be ridiculed by the candidates by offering incomplete information or suppressing material information, resulting in disinformation and misinformation to the voters. The sanctity of disclosure to be made by the candidate flows from the constitutional obligation." Affirming the said finding, it was held in paragraph 38 as under:- "...Once it is found that it was a case of improper acceptance, as there was misinformation or suppression of material information, one can state that question of rejection in such a case was only deferred to a later date. When the Court gives such a finding, which would have....
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....tion pertaining to criminal antecedents has the effect of causing undue influence which creates an impediment in the free exercise of electoral right by a voter. When there is such non-disclosure of criminal antecedents, this Court held in paragraph 86(e) that the question whether the election is materially affected or not would not arise in such a case. It is thus clear that by failing to disclose her conviction under Section 138 of the Act of 1881, the petitioner suppressed material information and thus failed to comply with the mandatory requirements of Rule 24-A(1) of the Rules of 1994. The acceptance of her nomination form has therefore been rightly held to be improper. She being the returned candidate, her election was rendered void. It is thus obvious that on account of such wrongful acceptance of her nomination form, the election was materially affected. This contention of the petitioner also fails. 25. We may now indicate why discretion under Article 136 of the Constitution of India does not deserve to be exercised in the present case. The Constitution Bench in Pritam Singh vs. State 1950 INSC 9 while explaining the scope and powers of the Court under Article 136 has....