SHAMBHU PRASAD SHARMAversusSHRI CHARANDAS MAHANT & ORS.

                         [2012) 6 S.C.R. 356


A                  SHAMBHU PRASAD SHARMA
                                   v.
               SHRI CHARANDAS MAHANT & ORS.
                 (Civil Appeal No. 4847 of 2012)
                            JULY 03, 2012
B
         [T.S. THAKUR AND GYAN SUDHA MISRA, JJ.]

         Representation of People Act, 1951 - Election petition
    - Declaration sought. by the defeated candidate that the
C   nomination papers filed by the remaining candidates was
    improperly and illegally accepted - Affidavit not submitted in
    the proper format, without any averment whether there were
    any dues outstanding against the candidate towards any
    financial institution or the government - Petition dismissed
D   by the High Court on the ground that the same did not
    disclose any cause of action - On appeal, held: Any departure
    from the prescribed format for disclosure of information about
    the dues, if any, payable to the financial institutions or the
    government will not be of much significance, especially when
E   the declaration made by the returned candidate in his affidavit
    clearly stated that no such dues were recoverable from the
    deponent - Thus, the departure from the format not of a
    substantial character on which the nomination papers of the
    returned candidate could be lawfully rejected by the returning
F   officer- However, defeated candidate was require,d to not only
    allege material facts relevant to such improper acceptance,
    but further assert that the election of the returrJed candidate
    had been materially affected by such acceptance - There was
    no such assertion in the petition - Mere imprqper acceptance
    assuming that any such improper acceptanci9 was supported
G   by assertion of material facts by the defeated candidate,
    would not disclose a cause of action to tall for trial of the
    election petition on merit unless the same is alleged to have
    materially affected the result of the returned candidate - Thus,
    the order passed by the High Court upheld.
H                                  356
  SHAMBHU PRASAD SHARMA v. CHARANDAS                    357
            MAHANT & ORS.
     Appellant-defeated candidate filed an election petition A
before the High Court seeking a declaration to the effect
that the nomination papers filed by the candidates who
contested the election had been improperly and illegally
accepted. The appellant contended that the nomination
papers filed by respondents were incomplete for want of B
a proper affidavit required to be filed in terms of the orders
passed by this Court in *Union of India v. Association for
Democratic Reforms and Anr. and the instructions issued
by the Election Commission requiring the candidates to
file such affidavits along with their nomination papers, c
containing any averment whether there were any dues
outstanding against the candidate towards any financial
institution or the government. Respondent no. 1-returned
candidate filed an application under Order VII Rule 11
CPC read with Section 86(1) of the Representation of
                                                               0
People Act, 1951 alleging that the petition did not disclose
any cause of action nor were the provisions of Sections
81 and 82 of the Act complied with. The High Court
allowed the application and dismissed the election
petition on the ground that the same did not make a
concise statement of the material facts on which the E
appellant relied and thus, failed to disclose a cause of
action. Therefore, the appellant filed the instant appeal.

    Dismissing the appeal, the Court
                                                              F
     HELD: 1.1 The directions issued by this Court in
*Union of India v. Association for Democratic Reforms
and Anr., and those issued by the Election Commission
make the filing of an affidavit an essential part of the
nomination papers, so that absence of an affidavit may        G
itself render a nomination paper non-est in the eye of law.
But where an affidavit has been filed by the candidate
and what is pointed out is only a defect in the format of
the affidavit or the like, the question of acceptance or
rejection of the paper shall have to be viewed in the light
of ~ub-section (4) to Section 36 of the Representation of     H
    358     SUPREME COURT REPORTS               [2012) 6 S.C.R.


A People Act, 1951 which states that the returning officer
  shall not reject any nomination paper on the ground of
  any defect which is not of a substantial character. Even
  the instructions issued to the Returning Officers in the
  Hand Book published by the Election Commission point
B out that a nomination paper shall not be rejected unless
  the defect is of a substantial character. Thus, it is evident
  that the form of the nomination papers is not considered
  sacrosanct. What is to be seen is whether there is a
  substantial compliance of the requirement as to form.
c Every departure from the prescribed format cannot,
  therefore, be made a ground for rejection of the
  nomination paper. [Paras 12 and 13] [366-D-G; 367-A]

         1.2 In the instant case, the appellant alleges that the
    affidavit did not in the prescribed format state whether the
D   candidates had any outstanding liabilities qua financial
    institutions or the government. The departure from the
    format may assume some importance if the appellant
    alleged that there were such outstanding liabilities which
    were concealed by the candidates. That, however, is not
E   the case of the appellant. Any departure from the
    prescribed format for disclosure of information about the
    dues, if any, payable to the financial institutions or the
    government will not be of much significance, especially
    when the declaration. made by. the returned candidate in
F   his affidavit clearly stated that no such dues were
    recoverable from the deponent. The departure from the
    format was not, in the circumstances, of a substantial
    character on which the nomination papers of the returned
    candidate could be lawfully rejected by the returning
G   officer. [Para 15] [367-D-F]
       1.3 The allegation that other candidates had also not
  submitted affidavits in proper format, rendering the
  acceptance of their nomination papers improper, the
  appellant was required to not only allege material facts
H relevant to such improper acceptance, but further assert
   SHAMBHU PRASAD SHARMA v. CHARANDAS                      359
             MAHANT & ORS.
that the election of the returned candidate had been              A
materially affected by such acceptance. There is no such
assertion in the election petition. Mere improper
acceptance assuming that any such improper
acceptance was supported by assertion of material facts
by the appellant-petitioner, would not disclose a cause           B
of action to call for trial of the election petition on merit
unless the same is alleged to have materially affected the
result of the returned candidate. [Para 16] [367-G-H; 368-
A-B]
    *Union of India v. Association for Democratic Reforms         C
and Anr. (2002) 5 SCC 29: 2002 (3) SCR 696; People's Union
For Civil Liberties (PUCL) and Anr. v. Union of India and Anr.
{2003) 4 SCC 399: 2003 (2) SCR 1136 - referred to.


    2002 (3) SCR 696
                       .
                     Case Law Reference:
                            Referred to      Para 3, 6, 7, 10,
                                                                  D
                                                 12
    2003(2) SCR 1136        Referred to      Para 7
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4847 of 2012.                                                     E
     From the Judgment & Order dated 17.08.2010 of the High
Court of Judicature at Bilaspur at Chhattisgarh in Election
Petition No. 15 of 2009
     R.D. Upadhyay, Asha Upadhyay, JP Tripathy, T. Syed for
the Appellant.                                                    F
    Rajiv Dhawan, Ravindra Srivastava, Navin Prakash, Anup,
Meenakshi Arora, Meenakshi Lekhi, Harish Pandey, Vibhu
Shankar Mishra, Rakshil Bharti for the Respondents.
    The Judgment of the Court was delivered by                    G
    T.S. THAKUR, J. 1. Leave granted.
    ·2. This appeal arises out of an order passed by the High
Court of Judicature of Chhattisgarh, at Bilaspur whereby
Election Petition No.15 of 2009 filed by the appellant has been
dismissed on the ground that the same does not make a             H
    360      SUPREME COURT REPORTS                   [2012] 6 S.C.R.


A .concise statement of the material facts on which the appellant
   relies and hence fails to disclose a cause of action.
          3. Election to No.4 Korba Parliamentary Constituency in
    the State of Chhattisgarh was held as a part of the general
    elections of the year 2009. As many as twenty two candidates
B   filed their nomination papers for election from the above
    constituency but with the wilhdrawal of nominations by four of
    such candidates, only seventeen candidates were left in the fray
    besides the appellant-petitioner who contested as an
    independent candidate and respondent No.1 set up by the
C   Indian National Congress Party. The margin of victory between
    respondent No.1 and Karuna Shukla set up by the Bhartiya
    Janta Party who emerged as his nearest rival was around
    20,000 votes. The appellant who polled 23136 votes then filed
    Election Petition No.15 of 2009 before the High Court of
o   Chhattisgarh at Bilaspur in which he sought a declaration about
    his having been elected unopposed apart from a declaration
    to the effect that the nomination papers filed by the remaining
    17 candidates had been improperly and illegally accepted. The
    appellant's case as set out in the election petition primarily was
E   that the nomination papers filed by respondents 2 to 18 were
    incomplete for want of a proper affidavit required to be filed in
    terms of the orders passed by this Court in Union of India v.
    Association for Democratic Reforms and Anr. (2002) 5 SCC
    294 and the instructions issued by the Election Commission
F   requiring the candidates to file such affidavits along with their
    nomination papers. The appellant alleged that while he had filed
    an affidavit in the prescribed format along with his nomination
    papers which was found to be in order by the Returning Officer,
    the nomination papers filed by the remaining candidates were
G   not accompanied by the requisite affidavits in Form 3 ka (iii)
    thereby rendering the nomination papers incomplete, hence
    liable to be rejected. An objection to that effect appears to have
    been raised even before the Returning Officer, who examined
    and rejected the same in terms of his order dated 31st March,
    2009. The Returning Officer held that the nomination papers
H
   SHAMBHU PRASAD SHARMA v. CHARANDAS                        361
       MAHANT & ORS. [T.S. THAKUR, J.)
filed by all the candidates were accompanied by the requisite        A
affidavits and that there was no deficiency in the same to justify
their rejection. The election petition questioned the said finding
and assailed the order passed by the Returning Officer as
being perverse. The appellant alleged that in terms of the order
passed by this Court in the judgment referred to above and the       B
directions issued by the Election Commission the essential
information required to be furnished in the affidavit particularly
whether there were any dues outstanding against the candidate
towards any financial institution or the government had not been
supplied in the requisite format by the candidates whose             c
nomination papers were accepted which was reason enough
for the rejection of the nomination papers filed by them and
declaration of the appellant- petitioner as having been, elected
unopposed to the Lok Sabha from that constituency.
      4. The election petition was contested by the returned         D
·candidate by filing an application under Order VII Rule 11 of
 CPC read with Section 86(1) of the Representation of People
 Act, 1951. The application alleged that the petition did not
 disclose any cause of action nor were the provisions of
 Sections 81 and 82 of the Act complied with. The election           E
 petition did not, according to the respondent, contain any
 averment regarding the existence of any un-discharged liability
 towards any financial .institution or the government nor were
 material facts stated to disclose a cause of action.
                                                                     F
     5. The High Court has, in terms of the order impugned
before us, allowed the said application and dismissed the
election petition holding that the petition did not indeed disclose
any cause of action and was, therefore, not maintainable. The.
High Court recorded a finding that the appellant had not
annexed affidavits filed by other candidates to demonstrate how G
the same were not in the format prescribed for the purpose nor
was it the case of the election petitioner that the respondents
had any un-discharged liability towards any financial institution
or the government for that matter. It also relied upon the fact
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    362     SUPREME COURT REPORTS                  [2012] 6 S.C.R.

A that the Returning Officer had in no uncertain terms recorded
  a finding that the requirement of filing an affidavit in support of
  nomination papers containing the requisite information in terms
  of orders passed by this Court had been complied with in each
  case and that there was nothing irregular or deficient in the
B affidavits or nomination papers to call for their rejection. The
  High Court noted that the returned candidate had also stoutly
  denied the allegations that the affidavit filed was not in the
  prescribed form or that there was any distortion or concealment
  of information in the same.
c         6. The requirement of filing an affidavit arises from the
    decision of this Court in Union of India v. Association for
    Democratic Reforms and Anr (supra). This Court had in that
    case examined the nature and· the extent of jurisdiction
    exercised by the Election Commission under Article 324 of the
D   Constitution and held that the same was wide enough to include
    all powers necessary for smooth conduct of elections and that
    the word "elections" was used in a wide sense to include the
    entire process of election which comprises several stages and
    embraces several steps in that process. This Court held that
E   the Election Commission could invoke its power under Article
    324 till the Parliament brought a suitable legislation on the
    subject. This Court recognized the right of the voters in this
    country to know about the particulars and antecedents of the
    candidates who would represent them in the Parliament where
F   laws concerning their liberty and property may be enacted, and
    declared that the right of freedom of speech and expression
    guaranteed under Article 19(1)(a) of the Constitution would
    include the freedom of the voter to cast his vote, for which
    purpose the voter was entitled to know everything that would
G   enable him to make the right choice. It was with that salutary
    object in mind that this Court issued directions to the Election
    Commission to call for information on affidavit from each one
    of the candidates seeking election to the Parliament or the
    State Legislatures as an essential part of his nomination
H
   SHAMBHU PRASAD SHARMA v. CHARANDAS                       363
       MAHANT & ORS. [T.S. THAKUR, J.]
papers furnishing therein information on the following aspects     A
in relation to his/her candidature:

    "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.
                                                                   B
    (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.                      c
    (3) The assets (immovable, movable, bank balance, etc.)
    of a candidate and of his/her spouse and that of
    dependants.

    (4) Liabilities, if any, particularly whether there are any    D
    overdues of any public financial institution or government
    dues.

    (5) The educational qualifications of the candidate."
                                                                 E
     7. As a sequel to the above directions the Parliament
amended Representation of People Act, 1951 to introduce
Sections 33-A and 33-8 with Representation of People (Third
Amendment) Act 2002. Section 33-A made it obligatory for
every candidate to furnish information whether or not he has F
been accused of any offence punishable with imprisonment for
two years or more in a pending case in which a charge has
been framed by the Court and whether he has been convicted
of an offence other than those referred to in sub-section (1) or
sub-section (2) or covered in sub-section (3) of Section 8 and G
sentenced to imprisonment of one year or more. Sub-section
(2) to Section 33-A required a candidate or his proposer to
deliver to the Returning Officer an affidavit sworn by the
candidate in the prescribed form along with nomination papers
in which the information specified above is set out. Section 33-
B, however, purported to neutralise the effect of the directions H
    364       SUPREME COURT REPORTS                   [2012) 6 S.C.R.


A issued by this Court in Union of India v. Association for
  Democratic Reforms and Anr (supra) and declared that no
  candidate shall be liable to disclose or furnish any information,
  in respect of his election, which is not required to be disclosed
  or furnished under the Act or the Rules made thereunder. The
B constitutional validity of the above additions to the statute was.
  challenged before this Court in People's Union For Civil
  Liberties (PUCL) and Anr. v. Union of India and Anr. (2003)
  4 SCC 399. This Court while upholding the vires of Section 33-
  A declared Section 33-B to be constitutionally invalid being in
c violation of Article 19(1 )(a) of the Constitution. This Court
  reiterated the directions given in Union of India v. Association
  for Democratic Reforms and Anr (supra) and directed the
  Election Commission to issue revised instructions keeping in
  view the observations made in the judgment delivered by this
  Court. This Court also held that the order issued by the Election
D Commission relating to the disclosure of assets and liabilities
  will continue to hold good and be operative although direction
  No.4 in so far as verification of assets and liabilities by means
  of a summary enquiry and rejection of nomination papers on
  the ground of furnishing wrong information or suppression of
E material information was concerned, the same shall not be
  enforced. In para 123 (9) this Court observed:

          "(9) The Election Commission has to issue revised
          instructions to ensure implementation of Section 33-A
F         subject to what is laid down in this judgment regarding the
          cases in which cognizance has been taken. The Election
          Commission's orders related to disclosure of assets and
          liabilities will still hold good and continue to be operative.
          However, Direction 4 of para 14 insofar as verification of
G         assets and liabilities by means of summary enquiry and
          rejection of nomination paper on the ground of furnishing
          wrong information or suppressing material information
          should not be enforced."

          8. Coming to the facts of the present case, the appellant
H
   SHAMBHU PRASAD SHARMA v. CHARANDAS                      365
       MAHANT & ORS. [TS. THAKUR, J.]
assailed the election on the ground that the affidavits filed by   A
the contesting candidates were not in the prescribed format.
This is evident from the averments made in para 5 of the
election petition where the appellant stated thus:

     "5. That, on 31st March, 2009, the petitioner filed an B
     objection before the Election Officer, Korba, stating that
     except the petitioner himself, the nomination forms of the
     other candidates are incorrect and invalid because the
     other candidates had not filed form No.3(K)(lll) affidavits
     showing debts/dues of the Government. Due to not filing
     the affidavit in the required prescribed form their C
     candidature become invalid and deemed to be an
     incomplete nomination paper within the me;ming of
     Section 33(A) & 33 (B) of the representation Act of the
     people Act, 1961 which reads as under, the same is
     enclosed with this petition as 'Annexure P-1'."             D

.     9. To the same effect is para 14A of the election petition
 where the appellant has set out the grounds for setting aside
 the election of the elected candidate in the following words:
                                                                   E
      "A. The nomination papers filed by Respondents No.2 to
18 were incomplete due to want of proper affidavit whom
Respondent No.1 has accepted and committed material
illegality. Above acceptance are contrary to SecJion
100(1)D(l)(N) of Representation of People Act, 1951 hence
liable to be declared improper and illegal voter voted in their    F
favour would not have noted in their favour which has materially
affected the result of this petitioner."

     10. In para 14C also the appellant's case was that the
nomination papers could not have been accepted without an G
affidavit disclosing the outstanding government dues as
required under the order of this Court in the case of Union of
India v. Association for Democratic Reforms and Anr (supra).
Suffice it to say that the case pleaded by the appellant was not
                                                                   H
    366     SUPREME COURT REPORTS                   [2012) 6 S.C.R.


A   one of complete failure of the requirement of filing an affidavit
    in terms of the judgment of this Court and the instructions given
    by the Election Commission but a case where even according
    to the appellant the affidavits were not in the required format.

B        11. What is significant is that the election petition did not
    make any averment leave alone disclose material facts in that
    regard suggesting that there were indeed any outstanding dues
    payable to any financial institution or the government by the
    returned candidate or any other candidate whose nomination
    papers were accepted. The objection raised by the appellant
C   was thus in the nature of an objection to form rather than
    substance of the affidavit, especially because it was not
    disputed that the affidavits filed by the candidates showed the
    outstandings to be nil.

D        12. The directions issued by this Court, and those issued
    by the Election Commission make the filing of an affidavit an
    essential part of the nomination papers, so that absence of an
    affidavit may itself render a nomination paper non-est in the eye'
    of law. But where an affidavit has been filed by the candidate
E   and what is pointed out is only a defect in the format of the
    affidavit or the like, the question of acceptance or rejection of
    the paper shall have to be viewed in the light of sub-section (4)
    to Section 36 of the Act which reads:

        "36 (4): The returning officer shall not reject any nomination
F   paper on the ground of any defect which is not of a substantial
    character."

         13. Even the instructions issued to the Returning Officers
    point out that a nomination paper shall not be rejected unless
G   the defect is of a substantial character. The instructions issued
    to the Returning Officers in the Hand Book published by the
    Election Commission enumerates though not exhaustively, what
    can be said to be grounds for rejection of the nomination
    papers. Para 10.1 (VII) reads:
H
   SHAMBHU PRASAD SHARMA v. CHARANDAS                        367
       MAHANT & ORS. [T.S. THAKUR, J.]
    "10.1 You must reject a nomination paper, if:                    A

    xxxxxxxxx
    (vii) The nomination paper is not substantially in the
    prescribed form, or
                                                                     B
    Xxxxxxxxxxx"
    14. From the above it is evident that the form of the
nomination papers is not considered sacrosanct. What is to be
seen is whether there is a substantial compliance of the             C
requirement as to form. Every departure from the prescribed
format cannot, therefore, be made a ground for rejection of the
nomination paper.

      15. In the case at hand, the appellant alleges that the
affidavit did not in the prescribed format state whether the         D
candidates had any outstanding liabilities qua financial
institutions or the government. Now a departure from the format
may assume some importance if the appellant alleged that there
were such outstanding liabilities which were concealed by the
candidates. That, however, is not the case of the appellant. Any     E
departure from the prescribed format for disclosure of
information about the dues, if any, payable to the financial
institutions or the government will not be of much significance,
especially when the declaration made by the returned candidate
in his affidavit clearly stated that no such dues were recoverable   F
from the deponent. The departure from the format was not, in
the circumstances, of a substantial character on which the
nomination papers of the returned candidate could be lawfully
rejected by the returning officer.

     16. Coming to the allegation that other candidates had also     G
not submitted affidavits in proper format, rendering the
acceptance of their nomination papers improper, we need to
point out that the appellant was required to not only allege
material facts relevant to such improper acceptance, but further
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    368     SUPREME COURT REPORTS                  (2012) 6 S.C.R.


A assert that the election of the returned candidate had been
  materially affected by such acceptance. There is no such
  assertion in the election petition. Mere improper acceptance
  assuming that any such improper acceptance was supported
  by assertion of material facts by the appellant- petitioner, would
B not disclose a cause of action to call for trial of the election
  petition on merit unless the same is alleged to have materially
  affected the result of the returned candidate.

       17. In the result this appeal fails and is hereby dismissed
C but in the circumstances without any order as to costs.

    N.J.                                       Appeal dismissed.