Supreme Court of India
KISAN SHANKAR KATHOREversusARUN DATTATRAY SAWANT & ORS
- Citation
- 2014 INSC 384
- Decided
- 9 May 2014
- Disposal
- Dismissed
- Bench
- S S NIJJAR
Holding
The Supreme Court held that the appellant’s nomination was improperly accepted because of material non‑disclosure of assets and interests, rendering the election void.
Summary
Kisan Shankar Kathore was elected to the Maharashtra Legislative Assembly, but a voter filed an election petition under RPA s.100(1)(d)(i) and (iv) alleging that Kathore’s nomination was improperly accepted because he failed to disclose government dues, his wife’s bungalow and vehicle, and his interest in a partnership firm. The Bombay High Court set aside the election, holding the non‑disclosure of the spouse’s assets and partnership interest to be material lapses, while treating the electricity dues as a lesser lapse. On appeal, the Supreme Court examined whether the affidavit complied substantially with the statutory format and whether the omissions materially affected the result. It affirmed the High Court’s view that the omissions were material, the nomination was improperly accepted, and consequently the election was void. The appeal was dismissed.
Issues considered
- Whether the appellant’s nomination was improperly accepted due to non‑disclosure of assets, liabilities and interests.
- Whether the non‑disclosure amounted to a material lapse that materially affected the election result.
- Whether the affidavit filed with the nomination achieved substantial compliance with the requirements of the Representation of the People Act.
- Whether the Returning Officer could have rejected the nomination at the stage of scrutiny.
Legislation cited
- Constitution of Indias. Article 141, s. Article 19(1)(a), s. Article 32, s. Article 324
- Representation of the People Act, 1951s. 10, s. 100(1)(d)(i), s. 100(1)(d)(iv), s. 10A, s. 125A, s. 33, s. 33A, s. 34, s. 35, s. 36, s. 8, s. 8A, s. 9, s. 9A
Subjects
election petitionnon‑disclosureaffidavitnomination acceptancematerial lapsesubstantial complianceRepresentation of the People Actvoter's right to information
Judgment
[2014] 7 S.C.R. 258
A KISAN SHANKAR KATHORE
v.
ARUN DATIATRAY SAWANT & ORS
(Civil Appeal No. 4261 of 2007)
MAY 09, 2014
B
[SURINDER SINGH NIJJAR AND A.K. SIKRI, JJ.]
Representation of People Act, 1951 - s. 100(1)(d)(i) and
(iv) - Non-disclosure of information - Election petition by voter
C - Improper acceptance of returned candidate's nomination by
returning officer, despite suppression of material facts, thus,
election void - High Court set aside the election of returned
candidate - On appeal, held: Non-disclosure of the electricity
dues not a serious lapse, but non-disclosure of property and
D vehicle in the name of returned candidate's wife as also
returned candidate's interest/share in the partnership firm
major lapse - Thus, material information about the assets not
disclosed in the affidavits given by the returned candidate
along with the nomination form - There was not a substantial
E compliance in disclosing the requisite information in the
affidavits along with the nomination paper - Once it is found
that it was a case of improper acceptance, as there was
misinformation or suppression of material information, the
rejection can only be at a later date and appropriate stage
F would be in an election petition - When the court gives such
a finding which results in rejection, effect would be that such
candidate was not entitled to contest and the election is void,
otherwise, it would be an anomalous situation, which cannot
be countenanced - Thus, the order passed by High Court is
G upheld.
The appellant was declared successful candidate in I
the election of legislative assembly. The first respondent-/'
voter, filed an election petition uls. 100(1 )(d)(i) and (iv) of
the Representation of People Act, 1951 stating that the
H 258
KISAN SHANKAR KATHORE v. ARUN DATTATRAY 259
SAWANT
appellant's nomination was improperly accepted by the A
returning ,officer and the election was void due to non-
compliance of the provisions of the Constitution and the
Representation of People Act, 1951. The first respondent
contended that the appellant had suppressed his dues
payable to the Government; the assets in the name of B
spouse and outstanding taxes thereof; the vehicle
owned by the spouse; and the property purchased in the
name of the firm of which he is the partner. The High
Court set aside the election of the appellant holding that
the nomination form of the appellant was defective and c
should not have been accepted by the returning officer.
Hence, the instant appeal.
The question which arise for consideration are
whether there is a substantial compliance in disclosing
the requisite information in the affidavits filed by the D
appellant along with the nomination paper; and whether
non-disclosure of the information on account of said four
aspects has materially affected the result of the election?
Dismissing the appeal, the Court E
HELD: 1.1. The reasons recorded by the High Court
on each item of non-disclosure is accepted. Its finding
about non-disclosure of the information qua all the
aspects is without blemif;h. There is a specific format in
which the information is to be given, which was not F
adhered to. [Para 33] [294-8]
1.2. In the given facts of the case, non-disclosure of
the electricity dues, may· not be a serious lapse. No
doubt, the dues were outstanding, at the same time, there G
was a bona fide dispute about the outstanding dues in
respect of the first electricity meter. It would have been
better on the part of the appellant to give the information
along with a note about the dispute, as suggested by the
H
260 SUPREME COURT REPORTS [2014] 7 S.C.R.
A High Court. It is still felt that when the appellant nurtured
belief in a bona fide manner that because of the said
dispute he is not to give the information about the
outstanding amount, as it had not become 'payable', this
should not be treated as a material lapse. Likewise, as far
B as the second electricity meter is concerned, it was in the
premises which was rented out to the tenants and the
dues were payable by the tenants in the first instance.
Again, in such circumstances, one can bona fide believe
that the tenants would pay the outstanding amount. No
c doubt, if the tenants did not pay the amount the liability
would have been that of the owner, i.e. the appellant.
However, at the time of filing the nomination, the appellant
could not presume that the tenants would not pay the
amount and, therefore, it had become his liability. Same
is the position with regard to non-payment of a sum of
0
Rs.1,783/- as outstanding municipal dues, where there
was a genuine dispute as to revaluation and re-
assessment for the purpose of assessing the taxes was
yet to be undertaken. Having said so, it is clarified that it
would depend in the facts and circumstances of each
E case as to whether such a non-disclosure would amount
to material lapse or not. Thus, it is clarified that the said
observation in the facts of the instant case should not be
treated as having general application. [Para 34] [294-D-
H; 295-A-B]
F
1.3. On other non-di.sclosures, the case of the
appellant cannot be accepted. There is a clear case of
non-disclosure of bungalow No. 866 in the name of the
appellant's wife, which is a substantial lapse. So is the
G case about the non-disclosure of vehicle in the name of
appellant's wife. Likewise, non-disclosure of the
appellant's interest/share in the partnership firm is a very
serious and major lapse. On all these aspects, the
defence/explanation furnished by the appellant does not
H
KISAN SHANKAR KATHORE v. ARUN DATIATRAY 261
SAWANT
inspire any confidence. It is simply an afterthought A
attempt to wriggle out of the material lapse on the part of
the appellant in not disclosing the required information,
which was substantial. Therefore, in the affidavits given
by the appellant along with the nomination form, material
information about the assets was not disclosed and, s
thus, it is not possible to accept the submission of the
appellant that information contained in the affidavits be
treated as sufficient/substantial compliance.. [Para 35)
1£295-C-F]
1.4. A conjoint and combined reading of Association C
for Democratic Reforms and People's Union for Civil
Liberties case clearly establishes that the main reason for
issuing directions by this Court and guidelines by the
Election Commission pursuant thereto is that the citizens
have fundamental right under Article 19(1 )(a) of the D
Constitution of India to know about the candidates
contesting the elections and this is the primary reason
that casts a solemn obligation on these candidates to
furnish information regarding the criminal antecedents,
educational qualifications and assets held by the E
candidate, his spouse and dependent children. It is on
that basis that not only Election Commission has issued
guidelines, but also prepared formats in which the
affidavits are to be filed. As a fortiorari, it follows that if
the required information as per the said format in respect F
of the assets of the candidate, his wife and dependent
children is not given, it would amount to suppression/
non-disclosure. [Para 36) [295-H; 296-A-C)
Union of India v. Association for Democratic Reforms &
Anr. (2002) 5 SGC 294; People's Union for Civil Liberties G
(PUCL) & Anr. v. Union of India & Anr. (2003) 4 SCC 399 -
explained.
1.5. When the information is given by a candidate in
the affidavit filed along with the nomination paper and H
262 SUPREME COURT REPORTS [2014] 7 S.C.R.
A objections are raised thereto questioning the correctness
of the information or alleging that there is non-disclosure
of certain important information, it may not be possible
for the returning officer at that time to conduct a detailed
examination. Summary enquiry may not suffice. Instant
8 case demonstrates this. At the same time, it would not be
possible for the Returning Officer to reject the nomination
for want of verification about the allegations made by the
objector. In such a case, when ultimately it is proved that
it was a case of non-disclosure and either the affidavit
C was false or it did not contain complete information
leading to suppression, it can be held at that stage that
the nomination was improperly accepted. The counsel for
the Election Commission rightly submitted that such an
enquiry can be only at a later stage and the appropriate
stage would be in an election petition as in the instant
0 case, when the election is challenged. The grounds
stated in Section 36(2) are those which can be examined
there and then and on that basis the Returning Officer
would be in a position to reject the nomination. Likewise,
where the blanks are left in· an affidavit, nomination can
E be rejected there and then. In other cases where detailed
enquiry is needed, it would depend upon the outcome
thereof, in an election petition, as to whether the
nomination was properly accepted or it was a case of
improper acceptance. Once it is found that it was a case
F 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 resulted in rejection, the effect would
G be same, namely, such a candidate was not entitled to
contest and the election is void. Otherwise, it would be
an anomalous -situation that even when criminal
proceedings under Section 125A of the Act can be
initiated and the selected candidate is criminally
H prosecuted and convicted, but the result of his election
KISAN SHANKAR KAIHORE v. ARUN DATTATRAY 263
SAWANT
cannot be questioned, cannot be countenanced. [Para A
38] (297-E-H; 298-A-E]
Resurgence India v. Election Commission of India & Anr.
(2013) 11 Scale 348; Shaligram Shrivastava v. Naresh Singh
Patel (2003) 2 SCC 176; G.M. Siddheshwar v. Prasanna B
Kumar (2013) 4 SCC 776 - referred to.
Case Law Reference:
(2002) s sec 294 Explained Para 10, 36.
(2003) 4 sec 399 Explained Para 10, 36. c
(2013) 11 Scale 348 Referred to Para 13, 37
(2003) 2 sec 11s Referred to Para 13
(2013) 4 sec 116 Referred to Para 29
D
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4261 of 2007.
From the Judgment and Order dated 16.08.2007 in
Election Petition No. 10/2004 of the High Court of Bombay.
E
B. Adinaryan Rao, Venkteshwar Rao, Ravindra Keshavrao
Adsure, G Ananda Selvam for the Appellant.
Meenakshi Arora, Mohit D. Ram, Vasav Anatharaman,
Kiran Bhardwaj, Aman Ahluwalia, B.V. Balramdas (for B.
F
Krishna Prasad) for the Respondents and
Respondent-In-Person.
The Judgment of the Court was delivered by
A.K. SIKRI, J. 1. The appellant herein was the successful G
candidate in the election of legislative assembly, which he
contested from 56, Ambernath Constituency, Thane District,
Maharashtra. There were five candidates in the fray for which
the elections were held on October 13, 2004 and the results
were declared on October 16, 2004. After he was declared H
264 SUPREME COURT REPORTS [2014] 7 S.C.R.
A elected, his election was challenged by the first respondent, who
is a voter in the said constituency. He filed the election petition
in the High Court of Judicature at Bombay stating that the
appellant's nomination had been improperly accepted by the
Returning Officer and the election was void due to non-
B compliance of the provisions of the Constitution of India, the
Representation of the People Act, 1951 (hereinafter referred
to as 'the Act') as well as Rules and Orders framed under the
said Act.
2. The election petition was filed under Section 100(1 )(d)(i)
C and (iv) of the Act on the ground that in the nomination form
filled in by the appellant he had suppressed his dues payable
to the Government, suppressed the assets of his spouse and
also suppressed the information and assets of a partnership
. firm of which he is a partner. The appellant contested the said
D petition. Evidence was led. After hearing the arguments, the
High Court passed judgment dated August 16, 2007 accepting
the plea of the first respondent that the nomination form of the
appellant was defective and should not have been accepted
by the Returning Officer. Thus, while allowing the election
E petition and setting aside of the election of the appellant, the
High Court recorded the non-disclosure on following counts:
(a) Non-disclosure of dues to Maharashtra State Electricity
Board in respect of two service connections held by him
amounting to Rs. 79,200/- and Rs.66,250/-.
F
(b) The appellant failed to disclose the ownership of
Bungalow No. 866 and the taxes dues thereof amounting
to Rs.3,445/- owned by his wife.
G (c) The appellant failed to disclose the particulars of the
vehicle MH-05-AC-55 owned by the wife.
(d) The appellant is guilty of non-disclosure of property
owned by firm Padmavati Developers of which the
appellant is a partner, which owns two plots of lands
H
KISAN SHANKAR KATHORE v. ARUN DATTATRAY 265
SAWANT [A.K. SIKRI, J.]
measuring 1313 sq.mtrs. and 1292 sq.mts. in Survey No. A
48, Hissa No. 9 of Mouze Kalyan, Taluka Ambarnath,
District Thane, Maharashtra.
Challenging the impugned judgment, the present statutory
appeal is filed, as provided under Section 116A of the Act. 8
3. We may state, at the outset, that there is no dispute on
facts, namely, the appellant had not disclosed certain
informations, as found by the High Court and noted above, in
his nomination form. Entire dispute rests on the issue as to
whether it was incumbent upon the appellant to have disclosed C
such an information and non-disclosure thereof rendered his
nomination invalid and void. The nature of information given by
the appellant in his nomination form, on the basis of which the
appellant contends that it ought to have been treated as
substantial compliance, would be taken note of later at the D
appropriate stage. We deem it appropriate to state the legal
position contained in the Act, Rules and Orders as well as the
judgments of this Court in order to understand as to whether
there was a substantial compliance by the appellant in the form
of information given by him or it amounted to non-disclosure of E
the material information warranting rejection of his nomination.
4. Since the petition filed before the High Court was under
· Section 100(1 )(d)(i) and (iv), we first take note of these
provisions, which are to the following effect:
F
"100. Grounds for declaring election to be void. - (1)
Subject to the provisions of sub-section (2) if the High
Court is of opinion -
xx xx xx G
(d) that the result of the election, in so far as it concerns a
returned candidate, has been materially affected -
(i) by the improper acceptance or any nomination, or
H
266 SUPREME COURT REPORTS (2014] 7 S.C.R.
A xx xx xx
(iv) by any non-compliance with the provisions of the
Constitution or of this Act or of any rules or orders made
under this Act,
B the High Court shall declare the election of the returned
candidate to be void."
5. Section 100(1 )(d) talks of result of election being
'materially affected' by improper acceptance, we would like to
c reproduce here Section 33(1) of the Act, which mandates filing
of a nomination paper completed in the prescribed form in
order to constitute it to be a valid nomination. It reads as under:
"33. Presentation of nomination paper and
requirement for a valid nomination. - (1) On or before
D the date appointed under clause (a) of section 3J) each
candidate shall, either in person or by his proposer,
between the hours of eleven o'clock in the forenoon and
three o'clock in the afternoon deliver to the returning-officer
at the place specified in this behalf in the notice issued
E under section 31 a nomination paper completed in the
prescribed form and signed by the candidate and by an
elector of the constituency as proposer:
xx xx XX:'
F
6. Other relevant provisions are Sections 33A, 34, 35 and
36 of the Act, which are as under:
"33A. Right to information. - (1) A candidate shall, apart
from any information which he is required to furnish, under
G this Act or the rules made thereunder, in his nomination
paper delivered under sub-section(1) of section 33, also
furnish the information as to whether -
(i) he is accused of any offence punishable with
H imprisonment for two years or more in a pending
KISAN SHANKAR KATHORE v. ARLIN DATIATRAY 267
SAWANT [A.K. SIKRI, J.]
case in which a charge has been framed by the A
court of competent jurisdiction;
(ii) he has been convicted of an offence other than any
offence referred to in sub-section (1) or sub-section
(2), or covered in sub-section (3), of section 8 and
B
sentenced to imprisonment for one year or more.
(2) The candidate or his proposer, as the case may be,
shall, at the time of delivering to the returning officer the
nomination paper under sub-section (1) of section 33, also
deliver to him an affidavit sworn by the candidate in a C
prescribed form verifying the information specified in sub-
section (1).
(3) The returning officer shall, as soon as may be after the
furnishing of information to him under sub-section (1),
0
display the aforesaid information by affixing a copy of the
affidavit, delivered under sub-section (2), at a conspicuous
place at his office for the information of the electors relating
to a constituency for which the nomination paper is
delivered."
E
xx xx xx
34. Deposits. - (1) A candidate shall not be deemed to
be duly nominated for election from a constituency unless
he deposits or causes to be deposited. - F
(a) in the case of an election from a Parliamentary
constituency, a sum of twenty-five thousand rupees
or where the candidate is a member of a
Scheduled Caste or Scheduled Tribe, a sum of
twelve thousand five hundred rupees; and · G
(b) in the case of an election from an Assembly or
Council constituency, a sum of ten thousand rupees
or where the candidate is a member of a
H
268 SUPREME COURT REPORTS [2014] 7 S.C.R.
A Scheduled Caste or Scheduled Tribe, a sum of five
thousand rupees:
Provided that where a candidate has been nominated by
more than one nomination paper for election in the same
constituency, not more than one deposit shall be required
B of him under this sub-section..
(2) Any sum required to be deposited under sub-section
(1) shall not be deemed to have been deposited under that
sub-section unless at the time of delivery of the nomination
c paper under sub-section (1) or, as the case may be, sub-
section (1A) of section 33 the candidate has either
deposited or caused to be deposited that sum with the
returning officer in cash or enclosed with the nomination
paper a receipt showing that the said sum has been
D deposited by him or on his behalf in the Reserve Bank of
' India or in a Government Treasury.
xx xx xx
35. Notice of nominations and the time and place for
E their scrutiny. - The returning officer shall, on receiving
the r.omination paper under sub-section (1) or, as the case
may be, sub-section (1A) of section 33, inform the person
or persons delivering the same of the date, time and place
fixed for the scrutiny of nominations and shall enter on the
F nomination paper its serial number, and shall sign thereon
a certificate stating the date on which and the hour at which
the nomination paper has been delivered to him; and shall,
as soon as may be thereafter, cause to be affixed in some
conspicuous place in his office a notice of the nomination
G containing descriptions similar to those .contained in the
nomination paper, both of the candidate and of the
proposer.
36. Scrutiny of nomi'nation. - (1) On the date fixed for
the sc'rutiny of nominations under section 30, the
H
KISAN SHANKAR KATHORE v. ARUN DATTATRAY 269
SAWANT [A.K. SIKRI, J.]
candidates, their election agents, one proposer of each A
candidate, and one other person duly authorised in writing
by each candidate but no other person, may attend at such
time and place as the returning officer may appoint; and
the returning officer shall give them all reasonable facilities
for examining the nomination papers of all candidates B
which have been delivered within the time and in the
manner laid down in section 33.
(2) The returning officer shall then examine the nomination
papers and shall decide all objections which may be made C
to any nomination and may, either on such objection or on
his own motion, after such summary inquiry, if any, as he
things necessary, reject any nomination on any of the
following grounds:-
(a) that on the date fixed for the scrutiny of nominatio_ns D
the candidate either is not qualified or is disqualified
for being chosen to fiil the seat under any of the
following provisions that may be applicable,
namely:-
E
Articles 84, 102, 173 and 191,
Part II of this Act, and sections 4 and 14 of the
Government of Union Territories Act, 1963; or
(b) that there has been a failure to comply with any of F
the provisions of section 33 or section 34; or
(c) that the signature of the candidate or the proposer
on the nomination paper is not genuine.
(3) Nothing contained in clause (b) or clause (c) of sub- G
section (2) shall be deemed to authorise the rejection of
the nomination of any candidate on the ground of any
irregularity in respect of a nomination paper, if the
candidate has been duly nominated by means of another
H
270 SUPREME COURT REPORTS [2014] 7 S.C.R.
A nomination paper in respect of which no irregularity has
been committed.
(4) The returning officer shall not reject any nomination
paper on the ground of any defect which is not of a
substantial character.
B
(5) The returning officer shall hold the scrutiny on the date
appointed in this behalf under clause (b) of section 30 and
shall not allow any adjournment of the proceedings except
when such proceedings are interrupted or obstructed by
c riot or open violence or by causes beyond his control:
Provided that in case an objection is raised by the
returning officer or is made by any other person the
candidate concerned may be allowed time to rebut it not
D later than the next day but one following the date fixed for
scrutiny, and the returning officer shall record his decision
on the date to which the proceedings have been
adjourned.
(6) The returning officer shall endorse on each nomination
E paper his decision accepting or rejecting the same and,
if the nomination paper is rejected, shall record in writing
a brief statement of his reasons for such rejection.
(7) For the purposes of this section, a certified copy of an
F entry in the electoral roll for the time being in force of a
constituency shall be conclusive evidence of the fact that
the person referred to in that entry is an elector for that
constituency, unless it is proved that ~e is subject to a
disqualification mentioned in section 16 of the
G Representation of the People Act, 1950 (43 of 1950).
(8) Immediately after all the nomination papers have been
scrutinized and decisions accepting or rejecting the same
have been recorded, the returning officer shall prepare a
list of validly nominated candidates, that is to say,
H
KISAN SHANKAR KATHORE v. ARUN DATIATRAY 271
SAWANT [A.K. SIKRI, J.]
candidates whose nominations have been found valid, and A
affix it to his notice board."
7. After having taken note of the aforesaid statutory
provisions, let us now proceed to discuss some of the important
judgments of this Court and to cull out legal principles therefrom
8
on the subject, which have a direct bearing on the issue of
disclosure of information.
8. First case that needs a mention, which is a milestone
and trigerred electoral reforms in this country, is Union oflndia
v. Association for Democratic Reforms & Anr., (2002) 5 SCC C
294. In this case, the Court held that it was incumbent upon
every candidate, who is contesting election, to give information ·
about his assets and other affairs, which requirement is not only
essential part of fair and free elections, inasmuch as, every
voter has a right to know about these details of the candidates,. D
such a requirement is also covered by freedom of speech
granted under Article 19(1 )(a) of the Constitution of India. The
summing up the entire discussion in the judgment can be found
in the following passage:
E
"46. To sum up the legal and constitutional position which
emerges from the aforesaid discussion, it can be stated
that:
1. The jurisdiction of the Election Commission is wide
enough to include all powers necessary for smooth conduct F
of elections and the word "elections" is used in a wide
sense to include the entire process of election which
consists of several stages and embraces many steps.
2. The limitation on plenary-character of power is when G
Parliament or State Legislature has made a valid law
relating to or in connection with elections, the Commission
is required to act in conformity with the said provisions. IN
case where law is silent, Article 324 is a reservoir of
power to act for the avowed purpose of having free and
H
272 SUPREME COURT REPORTS ~014] 7 S.C.R.
A fair election. The Constitution has taken care of leaving
scope for exercise of residuary power by the Commission
in its own right as a creature of the Constitution in the
infinite variety of situations that may emerge from time to
time in a large democracy, as every contingency coul~ not
be foreseen or anticipated by the enacted laws or the rules.
B
By issuing necessary directions, the Commission can fill
the vacuum till there is legislation on the subject. In Kanhiya
Lal Omar case (1985) 4 SCC 628 the Court construed the
expression "superintendence, direction and control" in
Article 324(1) and held that a direction may mean an order
c .issued to a particular individual or a pre~ept which many
may have to follow and it may be a specific or a general
order and such phrase should be construed liberally
empowering the Election Commission to issue such
orders.
D
3. The word "elections" includes the entire process of
election which consists of several stages and it embraces
many steps, some of which may have an important bearing
on the process of choosing a candidate. Fair election
E contemplates disclosure by the candidate of his past
including the assets held by him so as to give a proper
choice to the candidate according to his thinking and
opinion. As stated earlier, in Common Cause case,
(1996) 2 SCC 752 the Court dealt with a contention that
F elections in the country are fought with the help of money
power which is gathered from black sources and once
elected to power, it becomes easy to collect tons of black
money, which is used for retaining power and for re-
election. If on an affidavit a candidate is required to
disclose the assets held by him at the time of election, the
G
voter can d~cide whether he could be re-elected even in
case where he has collected tons of money.
Presuming, as contended by the learned Senior Counsel
Mr. Ashwani Kumar, that this condition may not be much
H effective for breaking a vicious circle which has polluted
KISAN SHANKAR KATHORE v. ARUN DATTATRAY 273
SAWANT [A.K. SIKRI, J.]
the basic democracy in the country as the amount would A
be unaccounted. May be true, still this would have its own
effect as a step-in-aid and voters may not elect law-
breakers as law-makers and some flowers of democracy
may blossom.
B
4. To maintain the purity of elections and in particular to
bring transparency in the process of election, the
Commission can ask the candidates about the expenditure
incurred by the political parties and this transparency in the
process of election would include transparency of a C
candidate who seeks election or re-election. In a
democracy, the electoral process has a strategic role. The
little man of this country would have basic elementary right
to know full particulars of a candidate who is to represent
him in Parliament where laws to bind his liberty and
property may be enacted. D
5. The right to get information in democracy is recognised
all throughout and it is a natural right flowing from the
concept of democracy. At this stage, we would refer to
Article 19(1) and (2) of the International Covenant on Civil E
and Political Rights, which is as under:
"(1) 6veryone shall have the right to hold opinions without
interference.
(2) Everyone shall have the right to freedom of expression; F
this right shall include freedom to seek, receive and
impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form of
art, or through any other media of his choice."
G
6. On cumulative reading of a plethora of decisions of this
Court as referred to, it is clear that if the field meant for
legislature and executive is left unoccupied detrimental to
the public interest, this Court would have ample jurisdiction
under Article 32 read with Articles 141 and 142 of the H
274 SUPREME COURT REPORTS [2014] 7 S.C.R.
A Constitution to issue necessary directions to the executive
to subserve public interest.
7. Under our Constitution, Article 19(1)(a) provides for
freedom of speech and expression. Voter's speech or
expression in case of election would include casting of
B
votes, that is to say, voter speaks out or expresses by
casting vote. For this purpose, information about the
candidate to be selected is a 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
c 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.
9. On the basis of the aforesaid discussion, this Court
D issued directions for filing affidavit and the nature of information
which was to be given, spetling out the same in para 48 of the
judgment, which reads as under:
"48. The Election Commission is directed to call for
information on affidavit by issuing necessary order in
E
exercise of its power under Article 324 of the Constitution
of India from each candidate seeking election to Parliament
or a State Legislature as a necessary part of his
nomination paper, furnishing therein, information on the
following aspects in relation to his/her candidature:
F
(1) Whether the candidate is convicted/acquitted/
discharged of any criminal offence in the past - if any,
whether he is punished with imprisonment or fine.
G (2) Prior to six months of filing of nomination, whether the
candidate is accused in any pending case, of any offence
punishable with imprisonment for two years or more, and
in which charge is framed or cognizance is taken by the
court of law. If so, the details thereof.
H (3) The assets (immovable, movable, bank balance, etc.)
KISAN SHANKAR KATHORE v. ARUN DATTATRAY 275
SAWANT [A.K. SIKRI, J.]
of a candidate and of his/her spouse and that of A
dependants.
(4) Liabilities, if any, particularly whether there are any
overdues of any public financial institution or government
dues.
8
(5) The educational qualifications of the candidate."
10. The judgment in Association for Democratic
Reforms led to amendment in the Act with the induction of
Section 33A (already reproduced above) as well as Section c
338 therein. Election Commission also laid down guidelines
in the year 2002. Insofar as Section 338 is concerned, it was
struck down by this Court in the case of People's Union for Civil
Liberties (PUCL) & Anr. v. Union of India & Anr., (2003) 4 SCC
399. D
11. In order to bring the directions contained in the
aforesaid two judgments within the statutory framework, revised
guidelines were issued by the Election Commission on March
23, 2006. In para 5 of these guidelines, para 14 of the judgment
in Association for Democratic Reforms is reproduced. E
Likewise, para 13 takes note of the directions given in the case
of People's Union for Civil Liberties. In para 15, it is noted
that the Supreme Court, while striking down Section 338 of the
Act, stated that earlier directions of Election Commission dated
June 28, 2002 would continue to operate subject to the afore- F
mentioned directions of the Court and, therefore, revised
directions had become necessary. In para 16, these directions
are issued in supersession of earlier directions dated June 28,
2002. Paras 1 and 3 of these guidelines/directions are relevant
for us, and, therefore, we reproduce the same as under: G
"(1) Every candidate at the time of filing his nomination
paper for any election to the Council of State, House of
the People, Legislative Assembly of a State of the
Legislative Council of a State having such a council, shall
H
276 SUPREME COURT REPORTS [2014] 7 S.C.R.
A furnish full and complete information in regard to the
matters specified by the Hon'ble Supreme Court and
quoted in paras 13 and 14 above, in an affidavit, the format
whereof is annexed hereto as Annexure-1 to this order.
xx xx xx
B
(3) Non-furnishing of the affidavit by any candidate shall be
considered to be violation of the order of the Hon'ble
Supreme Court and the nomination of the candidate
concerned shall be liable to rejection by the returning officer
C at the time of scrutiny of nomination such non-furnishing of
the affidavit."
12. We would also like to reproduce para 17 of these
guidelines, which concerns the case at hand:
D "17. For the removal of doubt, it is hereby clarified that the
earlier direction contained in para 14(4) of the earlier order
dated 28th June, 2002, in so far as verification of assets
and liabilities by means of summary enquiry and rejection
of nomination paper on the ground of furnishing wrong
E information or suppressing material information is not
enforceable in pursuance of the order dated 13th March,
2003 of the Apex Court. It is further clarified that apart from
the affidavit Annexure-1 hereto referred to in para 16(1)
above, the candidate shall have to comply with the other
F requirements as spelt out in the Representation of the
People Act, 1951, as amended by the Representation of
the People (Third Amendment) Act, 2002 and the Conduct
of Election Rules, 1961, as amended by the Conduct of
Elections (Amendment) Rules, 2002."
G
13. The meaning and scope of these guidelines came up
for discussion before this Court in Resurgence India v. Election
Commission of India & Anr., (2013) 11 Scale 348. That
judgment was rendered in a writ petition filed under Article 32
of the Constitution of India for issuance of specific directions
H
KISAN SHANKAR KATHORE v. ARUN DATTATRAY 277
SAWANT [A.K. SIKRI, J.]
to effectuate meaningful implementation of the judgments in A
jAssociation of Democratic Reforms, People's Union for
~Civil Liberties and also to direct the Election Commission to
make it compulsory for the Returning Officer to ensure that the
affidavits filed by the contestants are complete in all respects
and to reject the affidavits having blank particulars. This petition, B
thus was filed taking note of the practice which had started
'prevailing, namely, many candidates were leaving some of the
columns blank in their affidavits thereby omitting to provide the
required information. As per the petitioner in that case, in such
' an eventuality the Returning Officer should reject the nomination c
whereas the Union of India pleaded that it should be treated at
par with filing false affidavits and the candidate filing such an
affidavit should be prosecuted under Section 125A of the Act.
The Court took note of the provisions of Sections 33A, 36 and
125A of the Act and thereafter referred to the earlier three 0
Judge Bench judgment of this Court in Sha/igram Shrivastava
v. Naresh Singh Patel, (2003) 2 SCC 176, wherein the Court
had discussed the power of rejecting the nomination paper by
the Returning Officer of a candidate filing the affidavit with
particulars left blank. The relevant discussion in this behalf is
E
in paras 15 and 16 of the said judgment, which read as under:
"15. Although, the grounds of contention may not be exactly
similar to the case on hand but the reasoning rendered in
that verdict will come in aid for ariving at a decision in the
given case. In order to arrive at a conclusion in that case, F
this Court traversed through the objective behind filing the
proforma. The proforma mandated in that case was
required to be filed as to the necessary and relevant
information with regard to the candidate in the light of
Section 8 of the RP Act. This Court further held that at the G
time of scrutiny, the Returning Officer is entitled to satisfy
himself whether the candidate is qualified and not
disqualified, hence, the Returning Officer was authorized
to seek such information to be furnished at the time or
before scrutiny. It was further held that if the candidate fails H
278 SUPREME COURT REPORTS [2014] 7 S.C.R.
A to furnish such information and also absents himself at the
time of the scrutiny of the nomination papers, then he is
obviously avoiding a statutory inquiry being conducted by
the Returning Officer under Section 36(2) of the RP Act
relating to his being not qualified or disqualified in the light
B of Section 8 of the RP Act. It is bound to result in defect of
a substantial character in the nomination. This Court further
held as under:
"17. In the case in hand the candidate had failed to furnish
such information as sought on the proforma given to him
c and had also failed to be present personally or through his
representative at the time of scrutiny. The statutory duty/
power of Returning Officer for holding proper scrutiny of
nomination paper was rendered nugatory. No scrutiny of
the nomination paper could be made under Section 36(2)
D of the Act in the light of Section 8 of the Act. It certainly
rendered the nomination paper suffering from defect of
substantial character and the Returning Officer was within
his rights in rejecting the same."
E 16. It is clear that the Returning Officers derive the power
to reject the nomination papers on the ground that the
contents to be filled in the affidavits are essential to
effectuate the intent of the provisions of the RP Act and
as a consequence, leaving the affidavit blank will in fact
F make it impos"'ible for the Returning Officer to verify
whether the candidate is qualified or disqualified which
indeed will frustrate the object behind filing the same. In
concise, this Court in Shaligram (supra) evaluated the
purpose behind filing the proforma for advancing latitude
G to the Returning Officers to reject the nomination papers."
14. The legal position is, thereafter, summarized in para
27, which becomes important for our purpose and, therefore,
we produce the same hereunder:
H
KISAN SHANKAR KATHORE v. ARUN DATIATRAY 279
SAWANT [A.K SIKRI, J.]
"27. What emerges from the above discussion can be A
summarized in the form of following difections:
(i) The voter has the elementary right to know full particulars
of a candidate who is to represent him in the Parliament/
Assemblies and such right to get information is universally
8
recognized. Thus, it is held that right to know about the
candidate is a natural right flowing from the concept of
democracy and is an integral part of Article 19(1)(a) of the
Constitution.
(ii) The ultimate purpose of filing of affidavit along with the C
nomination paper is to effectuate the fundamental right of
the citizens under Article 19(1 )(a) of the Constitution of
India. The citizens are supposed to have the necessary
information at the time of filing of nomination paper and
for that purpose, the Returning Officer can very well compel D
a candidate to furnish the relevant information.
(iii) Filing of affidavit with blank particulars will render the
affidavit nugatory.
(iv) It is the duty of the Returning Officer to check whether E
the information required is fully furnished at the time of filing
of affidavit with the nomination paper since such
information is very vital for giving effect to the 'right to know'
of the citizens. If a candidate fails to fill the blanks even
after the reminder by the Returning Officer, the nomination F
paper is fit to be rejected. We do comprehend that the
power of Returning Officer to reject the nomination paper
must be exercised very sparingly but the bar should not be
laid so high that the justice itself is prejudiced.
G
(v) We clarify to the extent that Para 73 of People's Union
for Civil Liberlies case (supra) will not come in the way of
the Returning Officer to reject the nomination paper when
affidavit is filed with blank particulars.
H
280 SUPREME COURT REPORTS [2014] 7 S.C.R.
A (vi) The candidate must take the minimum effort to explicitly
remark as 'NIL' or 'Not Applicable' or 'Not known' in the
columns and not to leave the particulars blank.
(vii) Filing of affidavit with blanks will be directly hit by
Section 125A(i} of the RP Act. However, as the nomination
B
paper itself is rejected by the Returning Officer, we find no
reason why the candidate must be again penalized for the
same act by prosecuting him/her."
15. Keeping in mind the aforesaid statutory framework as
C well as the legal principles enunciated in the afore-noted
judgments, we now proceed to discuss the nature of information
about which there was non-disclosure by the appellant.
RE - Non-disclosure of Government dues
D 16. The appellant had not disclosed, in his nomination
paper/ affidavit, that he was in arrears in respect of two
electricity meters standing in his name, in respect whereof
electricity connection was given by the Maharashtra State
Electricity Board (for short, 'MSEB'). The outstanding amount
E in these two meters was Rs. 79,200/- and Rs.66,250/-
respectively. It was proved, on the basis of evidence led by the
respondent herein, that the aforesaid dues were outstanding
against these two electricity connections. The defence of the
appellant, however, was that one electricity meter, which was
F in his residential bungalow, was defective and complaints in
this behalf were made to MSEB from time to time and because
of that dispute he was orally advised by the officials of MSEB
not to pay the amount.
G 17. The High Court proceeded on the assumption that
there was a dispute. However, as per the High Court that could
not be a valid reason for not disclosing this information with a
note that the matter w~s pending review at the hands of MSEB.
Thereafter, the High Court posed the question as to whether
such non-disclosure can be treated as a technical defect or it
H
KISAN SHANKAR KATHORE v. ARUN DATIATRAY 281
SAWANT [A.K. SIKRI, J.]
is a substantive one. As per the High Court, the answer could A
be found by adverting to the form and the affidavits to be filed
along with the nomination form. These forms required the
candidates to disclose his liabilities/overdues to public financial
institution and Government dues. Since MSEB is a Government
body, the appellant was supposed to give this inf<?rmation. The B
High Court opined that non-disclosure of this information, which
is very vital to enable the voter to form his opinion about the
candidate's antecedents, resulted in misinformation and
disinformation thereby influencing the voters to take ·an
uninformed decision. The discussion on this aspect is summed c
up by the High Court in the following manner:
"Accordingly, I have no hesitation in taking the view that it
is a case of non-disclosure of liability in respect of
outstanding electricity bills payable to Government
Undertaking (M.S.E.B.); and that non-disclosure is a D
substantive defect in the affidavits filed along with
nomination form. The test to hold .th~t the defect is
:~·"·
substantive, in my opinion, is not the amount involved, but
the conscious act of non-disclosure and suppression of that
fact. It would be a case of technical defect if there was E
some clerical error in the information disclosed by the
candidate or for that matter, a case of omission due to lack
of knowledge of existence of such dues. In the present
case, the Respondent was conscious and aware of the fact
that on the date of filing of the nomination form, there were F
two outstanding electricity bills in relation to two meters
standing in his name, payable to M.S.E.B. It would have
been a different matter if the Respondent was unaware of
that fact or that no such bill was ever issued by the
M.S.E.B. That is not the case of the Respondent. Thus G
. understood, non-disclosure about the outstanding
electricity bill in the sum of Rs. 79,200/- payable by the
Respondent to M.S.E.B. Is a substantive defect in the
affidavit. Resultantly, the nomination form filed along with
such affidavit would become tainted and for which reason, H
282 SUPREME COURT REPORTS [2014] 7 S.C.R.
A it will have to be held that the same has been improperly
accepted within the meaning of Section 100(1 )(d)(i) of the
Act. Besides, the candidate has failed to comply with the
requirements of the order issued by the Election
Commission in exercise of powers under Article 324(1) of
B the Constitution of India which order is founded on the Law
declared by the Apex Court in the case of Union of India
vs. Association for Democratic Reforms (supra) and
binding under Article 141 of the Constitution, therefore,
affecting his nomination as well as the Election being void
c under Section 100(1)(d)(iv) of the Act."
18. Insofar as outstanding dues in respect of the second
electricity meter are concerned, that pertained to premises
which had been let out by the appellant to his tenants. There
was no dispute that the amount was outstanding. However, the
D defence of the appellant was that the primary liability of making
payment was that of the tenants. The High Court had discarded
this defence with the observations that electricity meter stood
in the name of the appellant in relation to which there was an
outstanding, which amount was payable on the date of filing of
E the nomination. Even the premises where this meter had been
installed were owned by the appellant. Therefore, in law, it was
the appellant who was liable to b~ proceeded against for
recovery of the amount and this fact was enough justification
to disclose the aforesaid outstanding. As per the High Court,
F even this non-disclosure amounted to substantive defect.
On that basis, the High Court held that non-disclosure of
these Government dues rendered the nomination paper invalid
and, therefore, it was a case of improper acceptance.
G RE - Non-disclosure of bungalow No. 866 in the name
of spouse and outstanding taxes thereof
19. Bungalow No. 866 at Badlapur in the limits of Kulgaon-
Badlapur Municipal Co\Jncil stands in the name of Kamal
H Kishore Kathore, wife of the appellant. At the time of filing the
KISAN SHANKAR KATHORE v. ARUN DATTATRAY 283
SAWANT [A.K. SIKRI, J.]
nomination, there were municipal dues in the sum of Rs.3,465/ A
-. Allegation of the first respondent was that both the aforesaid
informations were suppressed and not disclosed in the affidavit
filed by the appellant along with the nomination form. According
to him, this was crucial information regarding immovable
property owned by the appellant's wife, suppression whereof B
amounted to filing a defective affidavit and such an affidavit was
no affidavit in the eyes of law.
20. Significantly, the averment of the first respondent in the
election petition that the appellant had suppressed information C
regarding the aforesaid immovable property belonging to his
wife was not specifically denied by the appellant. The appellant
only denied the liability of taxes pertaining to this property, that
too on th~ ground that this property was required to be put to
revaluation and reassessment for the purpose of assessing the
taxes and for this purpose since the measurement of the D
property was undertaken to assess the taxable value, no
demand notices were issued by the municipal authority. Even
hearing regarding re-assessment took place on December 28,
2014 before the Collector and it is only after the completion of
the reassessment work the municipal authority had issued tax E
demand notices.
21. In view of the aforesaid, the High Court observed that
as far as the ownership of the property in the name of the wife
of the appellant is concerned, it was a clear case of non- F
disclosure and the ownership was proved even on the basis
of evidence produced before the Court. As far as non-payment
of municipal dues is concerned, the High Court noted that the
appellant merely explained the circumstances in his written
statement as to why the municipal taxes in relation to that G
property had not been paid. However, the municipal taxes were
paid in part on October 28, 2004, after the date of filing of
nomination with the payment of Rs.1,783/- pertaining to the year
2003-04. It would show that the appellant was in arrears. The
Court also discussed the evidence on this aspect, namely,
H
284 SUPREME COURT REPORTS [2014] 7 S.C.R.
A about the purported dispute relating to the reassessment as set
up by the appellant in his defence and has returned a finding
of fact that, in fact, there were arrears of municipal taxes in
relation to that house.
22. As far as non-disclosure of the immovable property is
8
concerned, the only reply given by the appeilant was that there
was a substantial compliance because of the reason that the
appellant in his affidavit had disclosed the value of all the
properties belonging to him and his spouse, in the sum of
Rs.11, 10,000/~. The High Court, however, found that no such
C case was made out in the written statement. Moreover, in the
affidavit filed by the appellant, against the column of immovable
properties, he had disclosed the properties at Badlapur and
Kulgaon, valued at Rs.11, 10,000/-, shown against the column
'Self. Thus, the valuation of the properties given in the affidavit
D was of those properties which belong to the appellant and,
therefore, it was a clear case of non-disclosure of wife's
property. This non-disclosure is also taken as a material defect.
Summing up the discussion on this aspect, the High Court, in
para 74, observed as under:
E
"74. Insofar as the present case is concerned, as is
mentioned earlier, the fact asserted by the Petitioner is that
the Respondent has not disclosed the ownership of his wife
in relation to house No. 866/4 in the affidavit "at all". That
allegation has remained unchallenged and undenied. In my
F
opinion, therefore, there is substance in the stand taken
on behalf of the Petitioner that the affidavit filed by the
Respondent along with the nomination paper is only to do
lip-service and is no affidavit at all as is required by the
mandate of law or the order issued by the Election
G
Commission which is founded on the Law declared by the
Apex Court. As the affidavit filed by the Respondent along
with the nomination form suffers from this substantive
defect, the nomination of the Respondent has been
improperly accepted within the meaning of Section
H
KISAN SHANKAR KATHORE v. ARUN DATTATRAY 285
SAWANT [A.K. SIKRI, J.]
100(1 )(d)(i) of the Act. Besides, the election of the A
Respondent was void also on account of non-compliance
of the order passed by the Election Commission under
Article 324 of the Constitution of India, which is founded
on the Law declared by the Apex Court under Article 141
of the Constitution of India, within the meaning of Section B
100(1)(d)(iv) of the Act."
RE - Non-disclosure of vehicle MH-05-AC-555 owned by
the appellant's wife
23. Here again, from the detailed discussion contained in C
the impugned judgment of the High Court, it becomes clear that
by leading requisite and sufficient evidence, the first respondent
proved that wife of the appellant owned the aforesaid vehicle
and the particulars thereof were not disclosed. The defence of
0
the appellant was that he had mentioned the value thereof in
his affidavit, but accepted that it was against column 'Self' and
not in the independent column of his spouse. His defence is
discussed and rejected by the High Court in the following
manner: E
"89. On analysis of the pleadings, it follows that the
Respondent admits that motor vehicle in question is
owned by his wife. However, it is not his case that in the
nomination form, he has disclosed the ownership of the F
said vehicle of his wife. Perhaps, the Respondent intends
to suggest that he has substantially complied with the
requirements by disclosing the ownership of motor vehicle
valued Rs.5,50,000/- and that it was purchased against
loan given by M & M Financial Services Ltd. G
90. Before we deal with the ocular evidence of the parties,
it will be useful to make reference to the details to be
disclosed by the candidate as per the prescribed affidavit.
The requirement is that the candidate should disclose the H
286 SUPREME COURT REPORTS [2014) 7 S.C.R.
A "details of the motor vehicles" owned and possessed by
him, his wife and/or other dependent members of his family
separately. The Respondent, however, against the said
column has only mentioned figure of Rs.5,50,000/- under
the column 'Self', which gives an impression that the
B Respondent himself owns vehicle valued Rs.5,50,000/- and
nothing more. No details of the motor vehicle such as
number of vehicle, the make, the model such as economic,
luxury or the year of purchase and the like are disclosed
so as to enable the voters to assess whether the details
c disclosed are correct or undervalued, including the
legitimate means and capability of the candidate to
possess such assets. As in the case of disclosure made
by the Respondent in respect of buildings, in similar
manner, the disclosure in respect of vehicle is also
D
incomplete, vague and misleading. The candidate cannot
get away with the explanation that he has disclosed some
amount in one of the columns as sufficient or substantial
compliance. The purpose of disclosure of assets (movable
E and immovable) and liabilities to be made by the
candidate, is to educate the voters about the complete
financial status of the candidate, which information also
facilitates the voter to assess whether the assets (movable
and immovable) declared by the candidate have been
F procured by him out of his legitimate and known source
of income. The voters have a fundamental right to know
and receive such information about the candidate before
they take an informed decision to elect their candidate. As
it is the fundamental right of the voters, there is
G corresponding duty on the candidate to disclose truthful and
complete information regarding the assets (movable and
immovable) as per the prescribed affidavits which forms
integral part of the nomination form."
H
KISAN SHANKAR KATHORE v. ARUN DATTATRAY 287
SAWANT [A.K. SIKRI, J.]
RE - Non-disclosure of property purchased in the name A
of the firm
24. The first respondent had alleged that the appellant has
a right, title and interest in land measuring 1330 sq.mts. being
Survey No. 48, Hissa No. 9, Plot No.2 and also in land B
admeasuring about 1292 sq.mts. being Survey No. 48, Hissa
No. 9, Plot No.3 at Mouje Kalyan, Taluka Ambernath, District
Thane. These properties are purchased in the name of the
partnership firm Mis. Padmavati Developers under agreement
of development and sale. The appellant was one of the partners C
in the said firm. However, the appellant had not disclosed his
interest in the aforesaid assets in the affidavit filed along with
the nomination form. The defence of the appellant in relation to
this allegation was that he had retired from the partnership firm
in the year 2003 and in his letter dated October 28, 2004 sent D
to the Returning Officer, he had stated that the aforesaid two
properties do not belong to him. The High Court noted that
admittedly there was no reference about the two properties in
the affidavits filed along with the nomination form. Further, it was
a common case that M/s. Padmavati Developers was formed E
as a partnership firm in the year 1995, of which the appellant
was one of the partners. There was also no dispute that the
bank account was operated in the name of the said partnership
firm and appellant was one of the joint signatory. Thus, the only F
aspect which needed determination was as to whether the
appellant had retired from the said partnership firm in
November 2003, as claimed by him. However, from the plethora
of documentary evidence placed on record, the High Court
returned a finding that those documents clearly show that the G
appellant continued to remain an active partner even after 2003
and was, in fact, a partner on the date of filing of the nomination.
Apart from various documents revealing and establishing this
fact, most important document was the Deed of Dissolution of
H
288 SUPREME COURT REPORTS [2014] 7 S.C.R.
A the partnership firm, which was dated January 11, 2005 and
at the time of evidence, the appellant had admitted the contents
thereof, as well as the signatures of the three partners
appearing on that document.
8 The High Court summed up the decision on this aspect in
the following manner:
"124. On overall analysis of the evidence, I have no
hesitation in concluding that the Petitioner has established
the .allegation that the Respondent continued to be partner
c
of the partnership firm Padmavati Developers at least till
December 2004. It is also matter of record and admitted
position that neither the Respondent nor any other partner
of Padmavati Developers caused to give public notice of
D the retirement of the partner or for that matter, intimation
to the Registrar of Firms till January 2005. Obviously,
intimation has been sent to the Registrar of Firms only after
the institution and service of the present Election Petition,
having realised the seriousness of the allegation. If so, it
E was obligatory on the part of the Respondent to disclose
his interest in the properties purchased in the name of the
said firm."
25. It would be pertinent to mention here that the first
F respondent had alleged non-disclosure of many other assets,
liabilities, etc. or suppression of other materiai information in
the affidavits. However, apart from the aforesaid four non-
disclosures, other allegations have not been accepted by the
High Court. We would also like to mention at this stage itself
G that on all the four counts the High Court has recorded finding
of facts, which are based on the evidence produced on record.
As would be noted hereinafter, learned senior counsel
appearing for the appellant did not even attempt to argue that
H
KISAN SHANKAR KATHORE v. ARUN DATIATRAY 289
SAWANT [A.K. SIKRI, J.]
these findings are wrong on facts. He only made legal A
submissions and his entire endeavour was that for non-
. disclosure of the aforesaid information, the High Court could
not have held that the nomination was wrongly accepted and
further that since there was a substantial compliance, there was
no reason to set aside the election of the appellant. B
26. On these aspects, the High Court had framed issues
No. 7 and 8, which are as under: ·
"(7) Does the Petitioner proves that the Respondent's c
Nomination Form is improperly accepted by the Returning
Officer"
(8) Whether on account of improper acceptance of the
nomination paper,_ the Election result is materially
0
affected?"
27. On Issue No.7, finding of the High Court is that
nomination was improperly accepted by the Returning Officer
by giving the following reasons:
E
"130. That takes me to the next issue as to whether
Petitioner proves that the Respondent's nomination form
is improperly accepted by the Returning Officer? Insofar
as this issue is concerned, the Respondent may be right
to the extent that the Returning Officer cannot be faulted F
for having accepted the nomination form of the
Respondent. That was required to be accepted inspite of
the objection, in view of the decision of the Apex Court in
the case of PUCL (supra) and the order issued by the
Election Commission on the basis of the Law declared in G
the said Judgment. Inasmuch as, it was not open to the
Returning Officer to enquire into contentious issues raised
in this Petition in the summary enquiry at the stage of
scrutiny of nomination forms. Those matters necessarily H
290 SUPREME COURT REPORTS [2014] 7 S.C.R.
A have to be addressed only after it is disclosed in an
enquiry upon taking evidence on the relevant facts at the
trial of the Election Petition. That does not mean that the
nomination of Respondent was proper and lawful. As the
Respondent's nomination paper suffered from the defects
B already referred to in the earlier part of this decision, it is
plainly a case of improper acceptance of his nomination
paper by the Returning Officer, covered by the rigours of
Section 100(1)(d)(i) of the Act. The issue No.7 will have
to be answered accordingly."
c
28. Issue No. 8 pertains to the question as t6 whether the
election result was materially affected because of non-
disclosure of the aforesaid information. The High Court took
note of provisions of Section 100(1 )(d)(i) and (iv) and
D discussed the same. Thereafter, some judgments cited by the
appellant were distinguished and deciding this issue against
the appellant, the High Court concluded as under:
"137. In my opinion, it is not necessary to elaborate on this
E matter beyond a point, except to observe that when it is a
case of improper acceptance of nomination on account of
invalid affidavit or no affidavit filed therewith, which affidavit
is necessarily an integral part of the nomination form; and
when that challenge concerns the returned candidate and
F if upheld, it is not necessary for the Petitioner to further
plead or prove that the result of the returned candidate has
been materially affected by such improper acceptance.
138. The avowed purpose of filing the affidavit is to make
G truthful disclosure of all the relevant matters regarding
assets (movable and immovable) and liabilities as well as
criminal actions (registered, pending or in respect of which
cognizance has been taken by the Court of competent
jurisdiction or in relation to conviction in respect of
H
KISAN SHAN'l<AR KATHORE v. ARUN DATTATRAY 291
SAWANT [A.K. SIKRI, J.]
specified offences). Those are matters which are A
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 B
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 C
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
D
from the constitutional obligation."
29. As pointed out above, there is no dispute on facts that
information in respect of the aforesaid four aspects was not
disclosed by the appellant in the affidavit filed by him along with
E
the nomination form. The defence and/or justification given for
non-disclosing these particulars is rightly rebuffed by the High
Court. However, submission of Mr. B. Adinarayana Rao,
learned senior counsel appearing for the appellant, was that
having regard to the judgment of this Court in G.M.
F
Siddheshwar v. Prasanna Kumar, (2013) 4 SCC 776, the
Court was required to examine as to whether information given
in the affidavits was substantial compliance of those particulars
regarding Government dues, assets and liabilities, etc. He
submitted that the information amounted to substantial G
compliance. For this purpose, his attempt was to demonstrate
that insofar as electricity dues of MSEB are concerned, there
.was a genuine dispute about the non-payment; as far as
\ownership of bungalow No. 866 in the name of his wife is
H
292 SUPREME COURT REPORTS [2014] 7 S.C.R.
A concerned, it was added to the value of the properties belonged
to the appellant; municipal taxes in respect of this bungalow
were again subject matter of dispute; the value of the vehicle
owned by his wife was also disclosed against his own. name;
and as far as properties owned by the partnership firm are
B concerned, the appellant was simply a partner from which he
had resigned, even whftn this event occurred after the filing of
the nomination form.
30. We may state, in the first instance. that the judgment
C in G.M. Siddheshwar has no application insofar as the present
case is concerned. The Court was dealing with the form of
affidavit that is required to be filed along with the election
petition in order to comply with the provisions of Section 83(1)
proviso of the Act. The very maintainability of the election
D petition was challenged on the ground that the affidavit
furnished by the election petitioner was not in absolute
compliance with the format affidavit (Form 25). The Court,
however, upheld the view of the High Court holding that on
E perusal of the affidavit, there was substantial compliance with
the prescribed format. Even when some defect was found in
the verification to the election petition, it was held that said
defect is also curable and cannot be held fatal to the
maintainability of the election petition. In the present case, we
F are concerned with the affidavit which a candidate seeking
election is required to file along with his nomination form. At
the same time, we proceed on the basis that if there is a
substantial compliance of the requirements contained in the
said affidavits, in the sense that there is a disclosure of required
G particulars, including assets/liabilities etc., it can be treated as
adequate compliance of the provisions of the Act, Rules and
Orders.
31. We have also kept in mind the following observations
H
KISAN SHANKAR KATHORE v. ARUN DATTATRAY 293
SAWANT [A.K. SIKRI, J.]
in G.M. Siddheshwar, while undertaking our analysis of the A
issue in the present case:
"31. The Court must make a fine balance between the
purity of the election process and the avoidance of an
election petition being a source of annoyance to the B
returned candidate and his constituents. In Azhar Hussain
v. Rajiv Gandhi, 1986 Supp SCC 315 this Court observed
(in the context of summary dismissal of an election
petition): (SCC p. 324, para 12)
c
"12 ... So long as the sword of Damocles of the election
petition remains hanging an elected member of the
legislature would not feel sufficiently free to devote his
whole-hearted attention to matters of public importance
which clamour for his attention in his capacity as an elected D
representative of the constituency concerned. The time and
attention demanded by his elected office will have to be
diverted to matters pertaining to the contest of the election
petition. Instead of being engaged in a campaign to relieve
the distress of the people in general and of the residents E
of his constituency who voted him into office, and instead
of resolving their problems, he would bP engaged in
campaign to establish that he has in fact been duly
executed."
F
32. In view of the aforesaid, two facets of the issue, which
require consideration, are as follows:
(a) Whether there is a substantial compliance in disclosing
the requisite information in the affidavits filed by the G
appellant along with the nomination paper?
(b) Whether non-disclosure of the information on account
of afores-aid four aspects has materially affected the result
of the election? H
294 SUPREME COURT REPORTS [2014] 7 S.C.R.
A 33. We have already discussed in detail each item of non-
disclosure as well as defence of the appellant pertaining
thereto. For the reasons recorded in detail at that stage by the
High Court and stated above, with which we agree, we are of
the opinion that its finding about non-disclosure of the
8 information qua all the aspects is without blemish. There is a
specific format in which the information is to be given, which
was not adhered to.
34. With these remarks we proceed to deal with the first
C aspect.
Insofar as non-disclosure of the electricity dues is
concerned, in the given facts of the case, we are of the opinion
that it may not be a serious lapse. No doubt, the dues were
D outstanding, at the same time, there was a bona fide dispute
about the outstanding dues in respect of the first electricity
meter. It would have been better on the part of the appellant to
give the information along with a note about the dispute, as
suggested by the High Court, we still feel that when the
E appellant nurtured belief in a bona fide manner that because
of the said dispute he is not to give the information about the
outstanding amount, as it had not become 'payable', this should
not be treated as a material lapse. Likewise, as far as the
F second electricity meter is concerned, it was in the premises
which was rented out to the tenants and the dues were payable
by the tenants in the first instance. Again, in such
circumstances, one can bona fide believe that the tenants
would pay the outstanding amount. No doubt, if the tenants do
G not pay the amount the liability would have been that of the
owner, i.e. the appellant. However, at the time of filing the
nomination, the appellant could not presume that the tenants
would not pay the amount and, therefore, it had become his
liability. Same is the position with regard to non-payment of a
H sum of Rs.1, 783/- as outstanding municipal dues, where there
KISAN SHANKAR KATHORE v. ARUN DATTATRAY 295
SAWANT [A.K. SIKRI, J.]
was a genuine dispute as to revaluation and reassessment for A
1
the purpose of assessing the taxes was yet to be undertaken.
Having said so, we may clarify that it would depend in the facts
and circumstances of each case as to whether such a non-
disclosure would amount to material lapse or not. We are, thus,
clarifying that our aforesaid observation in the facts of the B
present case should not be treated as having general
application.
35. Even if it is so, in respect of the aforesaid aspects, on
other non-disclosures, the case of the appellant tias to fail. We C
find clear case of non-disclosure of bungalow No. 866 in the
name of the appellant's wife, which is a substantial lapse. So
is the case about the non-disclosure of vehicle in the name of
appellant's wife. Likewise, non-disclosure of the appellant's
interest/share in the partnership firm is a very serious and major D
1
lapse. On all these aspects, we find that the defence/explanation
furnished by the appellant does not inspire any confidence. It
is simply an afterthought attempt to wriggle out of the material
lapse on the part of the appellant in not disclosing the required
information, which was sub~tantial. We, therefore, are of the E
view that in the affidavits given by the appellant along with the
nomination form, material information about the assets was not
disclosed and, therefore, it is not possible to accept the
· argument of the appellant that information contained in the F
affidavits be treated as sufficient/substantial compliance.
36. We have already reproduced above the relevant
portions of judgments in the cases of Association for
Democratic Reforms and People's Union for Civil Liberties
and the guidelines issued by the Election Commission pursuant G
thereto. A conjoint and combined reading thereof clearly
establishes that the main reason for issuing directions by this
Court and guidelines by the Election Commission pursuant
thereto is that the citizens have fundamental right under Article H
296 SUPREME COURT REPORTS [2014) 7 S.C.R.
A 19(1 )(a) of the Constitution of India to know about the
candidates contesting the elections and this is the primary
reason that casts a solemn obligation on these candidates to
furnish information regarding the criminal antecedents,
educational qualifications and assets held by the candidate, his
B spouse and dependent children. It is on that basis that not only
Election Commission has issued guidelines, but also prepared
formats in which the affidavits are to be filed. As a fortiorari, it
follows that if the required information as per the said format
in respect of the assets of the candidate, his wife and
C dependent children is not given, it would amount to suppression/
non-disclosure.
37. It was argued that acceptance of nomination is as per
Section 33 of the Act, which contains requirement for a valid
D nomination. Further Section 36(2) deals with rejection of
nomination on grounds specified therein. It was the submission
of the learned senior counsel that at the time of scrutiny of the
nomination under Section 36, nomination could be rejected only
if any of the grounds stipulated in sub-section (2) are satisfied
E and there cannot be any 'deemed' ground, which is not covered
by Section 36(2) of the Act. Therefore, the Returning Officer had
rightly accepted the nomination form as none of the grounds
specified in sub-section (2) of Section 36 were attracted. He
F further submitted that Sections 8A, 9, 9A, 10 and 10A provide
disqualifications for Members of Parliament and State
Legislature. As per the counsel, from the scheme of the Act it
can be seen that at the time of scrutiny of nomination, all that
the Returning Officer is required to examine is as to whether
G the candidate suffers from any of the disqualifications
mentioned in Section 8 to 1OA of the Act and as to whether
the nomination is in the form prescribed by Section 33 and
accompanied by the documents mentioned in sub-sections 2
to 7 of Section 33 and whether it is accompanied by an affidavit
H
KISAN SHANKAR KATHORE v. ARUN DATTATRAY 297
SAWANT (J\.K. SIKRI, J.]
prescribed by Rule 4A and the deposit required by Section 34 A
of the Act. Apart from the aforesaid, the Returning Officer is not
empowered to reject the nomination on any other ground. He
argued that the right of the Returning Officer to conduct a
summary inquiry into the correctness or otherw'ise of the
contents of the affidavit filed along with the nomination was B
expressly taken away as can be seen from the judgment of this
Court in the case of People's Union for Civil Liberties. Having
noted that the Returning Officer has no power to reject a
i nomination where false information is furnished or material
information is suppressed, the Election Commission of India C
and Union of India have requested this Court to treat the same
as equal to a blank affidavit, as noted in the case of
Resurgence fndi.a.
It is difficult to accept the aforesaid submissions of the D
learned senior counsel as that would amount to nullifying the
effect of the judgments as well as guidelines issued by the
Election Commission.
38. When the information is given . by a candidate in the E
affidavit filed along with the nomination paper and objections
are raised thereto questioning the correctness of the information
or alleging that there is non-disclosure of certain important
information, it may not be possible for the returning officer at
that time to conduct a detailed examination. Summary enquiry F
may not suffice. Present case is itself an example which loudly
demonstrates this. At the same time, it would not be possible
for the Returning Officer to reject the nomination for want of
verification about the allegations made by the objector. In such
a case, when ultimately it is proved that it was a case of non- G
disclosure and either the affidavit was false or it did not contain
complete information leading to suppression, it can be held at
that stage that the nomination was improperly accepted. Ms.
Meenakshi Arora, learned senior counsel appearing for the H
298 SUPREME COURT REPORTS [2014] 7 S.C.R.
A Election Commission, right argued that such an enquiry can be
only at a later stage and the appropriate stage would be in an
election petition as in the instant case, when the election is
challenged. The grounds stated in Section 36(2) are those which
can be examined there and then and on that basis the Returning
B Officer would be in a position to reject the nomination. Likewise,
where the blanks are left in an affidavit, nomination can be
rejected there and then. In other cases where detailed enquiry
is needed, it would depend upon the outcome thereof, in an
election petition, as to whether the nomination was properly
C accepted or it was a case of improper acceptance. 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
0
have resulted in rejection, the effect would be same, namely,
such a candidate was not entitled to contest and the election is
void. Otherwise, it would be an anomalous situation that even
when criminal proceedings under Section 125A of the Act can
E be initiated and the selected candidate is criminally prosecuted
and convicted, but the result of his election cannot be
questioned. This cannot be countenanced.
39. The upshot of the aforesaid discussion would be to hold
F that the present appeal is totally devoid of any merits and is,
accordingly, dismissed.
Nidhi Jain Appeal dismissed.
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