# SRI MAIREMBAM PRITHVIRAJ @ PRITHVIRAJ SINGH v. SHRI PUKHREM SHARATCHANDRA SINGH

- **Citation:** [2016] 9 S.C.R. 687
- **Court:** Supreme Court of India
- **Decided:** 2016
- **Case number:** Civil Appeal No. 2649 of2016
- **Bench:** Anil R. Dave, L. Nageswara Rao
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sri-mairembam-prithviraj-prithviraj-singh-v-shri-pukhrem-sharatchandra-singh-31362
- **Pages:** 25

## Headnote

Election Laws:
Legislative Assembly election - Only two candidates contesting
the election in the constituency - Election petition by the candidate
who lost the election, challenging the election of returned
candidate - Alleging false declaration as regards his educational
qualification and improper acceptance of his nomination - Election
petitioner also sought that he should be declared elected - High
Court declared the election of the returned candidate as void -
However, the High Court refused to declare the election petitioner
as elected - Cross-appeal by the election petitioner and the returned
candidate - Held: The informatio11 provided by the returned
candidate in Form 26 regarding his educational qualification would
amount to false declaration - The false declaration regarding
educational qualification is of substantial character - Mere finding
. that there has been an improper acceptance of the ·nomination is
not sufficient for a declaration that the election is void uls.
JOO(l}(d) - There has to be further proof and pleading that the
result of the returned candidate was materially affected - But such
proof is not required if there are only two candidates bf the fray -
Jn the present case, it was not necessmy for the election petitioner
to prove that result of the election, in so far as it concerned the
returned candidate has been materially affected by the improper
acceptance of his nomination as there were only two candidates
contesting the election - The High Court in exercise of its
discretionary powe1; rightly refused to declare the election petitioner
as elected after the election of the returned candidate was declared
void - The election petitioner since had contested the election on
behalf of Nationalist Congress Party and after result of the election
having joined Bhartiya Jania Party was not entitled for such
declaration - Representation of the People Act, 1951 - ss.JOO(l)(d),
687
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SUPREME COURT REPORTS
[2016] 9 S.C.R.
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36(4), 53(2) and 80A.
High Court - Inherent powers - Exercise of - While hearing
election petition - Held: High Court hearing an election petition is
not an 'authority• and it remains the High Court while trying an
election petition - Inherent powers of High court are not taken
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away while adjudicating election disputes - Representation of the
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People Act, 1951 - ss. 53(2) and 80A.
Dismissing the appeals, the Court
HELD:
Civil Appeal No. 2649 of 2016:
1.1 The Election Commission of India issued a press note
on 28.06.2002 in which there was a reference to the judgment of
this Court in Union of India v. Association for Democratic Reforms,
in which it was held that information on five aspects has to be
provided to the voter. One of the five aspects pertains to the
educational qualification of the candidates. An order was issued
by the Election Commission of India on 28.06.2002 directing that
full and complete information relating to the five aspects which
were mentioned in the judgment has to be furnished. Providing
incomplete information or suppression of material information
on any of the five aspects was to be treated as a defect of
substantial character by the Returning Officers. [Para 15)(699E-F]
1.2 Every voter has a fundamental right to know about the
educational qualification of a candidate. It is also clear from the
provisions of the Act, Rules and Form 26 that there is a duty cast
on the candidates to give correct information about their
educational qualifications.[Para l 7][700-B-C]
1.3 The declaration relating to educational qualification
of the appellant in the affidavit cannot be called a clerical error.
It is not an error committed once. Since 2008, the Appellant was
making the statement that he has an MBA degree. The
information provided by him in the affidavit filed in Form 26 would
amount to a false declaration. He was given an opportunity by
the Returning Officer to produce the relevant document in
support of his declaration. At least at that poi

## Text

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[2016] 9 S.C.R. 687
SRI MAIREMBAM PRITHVIRAJ @ PR!THVIRAJ SINGH .
A
v.
SHRI PUKHREM SHARATCHANDRA SINGH
(Civil Appeal No. 2649 of2016)
OCTOBER 28, 20 I 6
[ANIL R. DAVE AND L. NAGESWARA RAO, JJ.]
Election Laws:
Legislative Assembly election - Only two candidates contesting
the election in the constituency - Election petition by the candidate
who lost the election, challenging the election of returned
candidate - Alleging false declaration as regards his educational
qualification and improper acceptance of his nomination - Election
petitioner also sought that he should be declared elected - High
Court declared the election of the returned candidate as void -
However, the High Court refused to declare the election petitioner
as elected - Cross-appeal by the election petitioner and the returned
candidate - Held: The informatio11 provided by the returned
candidate in Form 26 regarding his educational qualification would
amount to false declaration - The false declaration regarding
educational qualification is of substantial character - Mere finding
. that there has been an improper acceptance of the ·nomination is
not sufficient for a declaration that the election is void uls.
JOO(l}(d) - There has to be further proof and pleading that the
result of the returned candidate was materially affected - But such
proof is not required if there are only two candidates bf the fray -
Jn the present case, it was not necessmy for the election petitioner
to prove that result of the election, in so far as it concerned the
returned candidate has been materially affected by the improper
acceptance of his nomination as there were only two candidates
contesting the election - The High Court in exercise of its
discretionary powe1; rightly refused to declare the election petitioner
as elected after the election of the returned candidate was declared
void - The election petitioner since had contested the election on
behalf of Nationalist Congress Party and after result of the election
having joined Bhartiya Jania Party was not entitled for such
declaration - Representation of the People Act, 1951 - ss.JOO(l)(d),
687
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688
SUPREME COURT REPORTS
[2016] 9 S.C.R.
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36(4), 53(2) and 80A.
High Court - Inherent powers - Exercise of - While hearing
election petition - Held: High Court hearing an election petition is
not an 'authority• and it remains the High Court while trying an
election petition - Inherent powers of High court are not taken
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away while adjudicating election disputes - Representation of the
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People Act, 1951 - ss. 53(2) and 80A.
Dismissing the appeals, the Court
HELD:
Civil Appeal No. 2649 of 2016:
1.1 The Election Commission of India issued a press note
on 28.06.2002 in which there was a reference to the judgment of
this Court in Union of India v. Association for Democratic Reforms,
in which it was held that information on five aspects has to be
provided to the voter. One of the five aspects pertains to the
educational qualification of the candidates. An order was issued
by the Election Commission of India on 28.06.2002 directing that
full and complete information relating to the five aspects which
were mentioned in the judgment has to be furnished. Providing
incomplete information or suppression of material information
on any of the five aspects was to be treated as a defect of
substantial character by the Returning Officers. [Para 15)(699E-F]
1.2 Every voter has a fundamental right to know about the
educational qualification of a candidate. It is also clear from the
provisions of the Act, Rules and Form 26 that there is a duty cast
on the candidates to give correct information about their
educational qualifications.[Para l 7][700-B-C]
1.3 The declaration relating to educational qualification
of the appellant in the affidavit cannot be called a clerical error.
It is not an error committed once. Since 2008, the Appellant was
making the statement that he has an MBA degree. The
information provided by him in the affidavit filed in Form 26 would
amount to a false declaration. He was given an opportunity by
the Returning Officer to produce the relevant document in
support of his declaration. At least at that point of time he should
SRI MAIREMBAM PRITHVIRAJ@PRITHVIRAJ SINGH v. SHRI
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PUKHREMSHARATCHANDRASINGH
have informed the Returning Officer that an error crept into the
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declaration. He did not do so. The false declaration relating to
his educational qualification cannot be stated to be not of a
substantial character. [Para 18)(701-C-E)
Kisan Shankar Kathore v. Arun Dattatray Sawant 2014
(14) sec 162; Union of India V. Association for
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Democratic Reforms 2002 (5) SCC 294 : 2002 (3) SCR
696; Resurgence India v. Election Commission of India
and Anr. 2014 (14) SCC189 : 2013 (9) SCR 360 -
relied on.
2.1 There is a difference between improper acceptance of
a nomination of a returned candidate and improper acceptance
of nomination of any other candidate. There is also a difference
between cases where there are only two candidates in the fray
and a situation where there are more than two candidates
contesting the election. If the nomination of a candidate other
than the returned candidate is found to have been improperly
accepted, it is essential that the election Petitioner has to plead
and prove that the votes polled in favourof such candidate would
have been polled in his favour. On the other hand, ifthe jpiproper
acceptance of nomination is of the returned candidate, there is
no necessity of proof that the election has been materially affected
as the returned candidate would not have been able to rontest
the election if his nomination was not accepted. It is not necessary
for the respondent to prove that result of the election in so far as
it concerns the returned candidate has been materially affected
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by the improper acceptance of his nomination a~ there were only
two candidates contesting the election and if the appellant's· F
nomination is declared to have been improperly accepted, his
election would have to be set aside without any further enquiry
and the only candidate left in the fray is entitled to be declared
elected. [Para 22)(706-A-D]
2.2 Thus; mere finding that there has been an improper
acceptance of the nomination is not sufficient for a declaration
that the election is void under Section lOO(l)(d). There has to
be further pleading and proof that the result of the election of the
returned candidate was materially affected. But, there would be
no necessity of any IJroof in the event of the nomination of a
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[2016] 9 S.C.R.
returned candidate being declared as having been improperly
accepted, especially in a case where there are only two candidates
in the fray. If the returned candidate's nomination is declared to
have been improperly accepted it would mean that he could not
have contested the election and that the result of the election of
the returned candidate was materially affected need not be proved
further. [Para 23][708-G-H; 709-A-B]
Civil Appeal No. 2829 of 2016:
3. The High Court rightly refused to grant the relief to the
appellant that he should be declared as elected. The High Court
held that the appellant, after result of the election, having joined
BJP was not entitled for the declaration, as he had contested the
election on behalf of NCP. The High Court held so taking into
account the spirit of law as expressed in Paragraph No.2 of the
JO•h Schedule of the Constitution of India. It is not correct to say
that in view of s. 53(2) of the Act, the appellant should have been
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declared duly elected as he was the only person remaining in the
fray after the election of respondent/returned candidate was
declared void. The High court is conferred with the jurisdiction
to try an election petition u/s. 80(A) of the Act. The High Court
hearing an election petition is not an 'authority' and that it remains
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the High Court while trying an election petition. The inherent
power of the High Court is not taken away when the election
disputes arc adjudicated. The power of High Court is not fettered
by s. 53(2). The High Court has taken into consideration an
anomalous situation that would arise by a candidate belonging to
one party being declared elected after having crossed the floor.
There is no need to interfere with the discretion exercised by
the High Court. [Paras 27, 28, and 29][710-D-II; 711-A, C-D]
Durai Muthuswami v. N. Nachiappan and Ors. 1973
(2) SCC 45 : 1974 (1) SCR 40; Jagjit Singh v. Dharan1
Pal Singh 1995 Sut>P (1) SCC 422; Vashist Narain
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Sharma v. Dev Chandra 1955 (1) SCR 509; Kisan
Shankar Kathore v. Arun Datta/ray Sawant 2014 (14)
SCC 162 : 2014 (7) SCR 258 - relied on.
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Peoples Union for Civil Liberties (PUCL) v. Union of
India 2003 (4) sec 399 : 2003 (2) SCR 1136;
SRI MAIREMBAM PRITHVIRAJ@ PRITHVIRAJ SINGH v. SHRI
PUKHREM SHARATCHANDRA SINGH
Ms. Meenakshi Arora Hari Krishna Lal v. Babu Lal
Marandi 2003 (8) SCC 613 : 2003 (4) Suppl. SCR
1170; Magani Lal Manda! v. Bis/11111 Deo Bhandari
2012 (3) SCC 314 : 2012 (1) SCR 527; Shambhu
Prasad Sharma v. Charandas Mahant and Ors. 2012
(11) SCC 390 : 2012 (6) SCR 356; T. Deen Dayal v.
High Court of A.P. 1997 (7) SCC 535 : 1997 (4) Suppl.
SCR 39; Hari Shanker Jain v. Sonia Gandhi 2001 (8)
SCC 233 : 2001 (3) Suppl. SCR 38 - referred to.
Case Law Reference
1974 (1) SCR 40
relied on
Para 6
1995 Sur>P (1) sec 422
relied on
Paras 7, 22
2002 (3) SCR 696
relied on
Para 7
2003 (2) SCR 1136
referred to
Para 7
2014 (7) SCR 258
relied on
Paras 7, 16, 22
2013 (9) SCR 360
relied on
Para 7.
2001 (3) Suppl. SCR 38
referred to
Paras 7, 28
2012 (1) SCR 527
referred to
Para 19
2012 (6) SCR 356
referred to
Para 19
1955 (1) SCR 509
relied on
Para 22
1997 (4) Suppl. SCR 39
referred to
Para 29
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2649
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of2016.
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From the Judgment and Order dated 29.02.2016 of the High Court
ofManipur at Imphal in Election Petition No. I of2012
WITH
C. A. No. 2829 of 2016.
V. Giri, Sr. Adv., Sapam Biswajit Meitei, Naresh Kumar Gaur,
Manav Vohra, Ms. Punam Kumari, Advs. for the Appellant.
Ms. Meenakshi Arora, Sr. Adv., Lenin Hijam, Vasav A., Rahul
Joshi, A. D. Tamboli, S. Gowthaman, Advs. for the Respondent.
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[2016] 9 S.C.R.
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The Judgment of the Court was delivered by
L. NAGESWARA RAO, J.
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CIVIL APPEAL No. 2649 of 2016
I. The Appellant has filed this appeal aggrieved by the judgment
of the High Court of Manipur at Imphal by which his election to the
Manipur Legislative Assembly from MoirangAssembly constituency was
declared as void.
2. A Notification was issued for election to the I O•h Manipur
Legislative Assembly on 04.01.2012. The Appellant belonging to the Indian
National Congress (INC) and the Respondent who was sponsored by
the National Congress Party (NCP) filed their nominations within the
time prescribed. There was no other nomination filed. The Respondent
objected to the nomination of the Appellant at the time of scrutiny on the
ground that a false declaration relating to educational qualification was
made by the Appellant. The Returning Officer directed the Appellant to
submit documents in proof of his educational qualification as declared in
the affidavit filed under Form 26. The Appellant failed to produce any
document to prove his educational qualification in spite of which the
Returning Officer accepted the nomination of the Appellant. Polling took
place on 28.01.2012 and the counting of votes was held on 06.03.2012.
The result was declared on the same day. The Appellant secured 14,521
votes and the Respondent secured 13,363 votes. The Appellant was
declared elected as MLA, Moirang Constituency.
J. The Respondent challenged the election of the Appellant by
filing an election petition in the Guwahati High Court seeking a declaration
that the Appellant's election was null and void, that the Respondent should
be declared as duly elected and that a criminal proceeding should be
directed to be initiated against the Appellant under Section 125-A and
127 of the Representation of the People Act, 1951 (hereinafter referred
to as 'the Act'). Apa1t from the ground of improper acceptance of
nomination, the Respondent also alleged corrupt practices against the
Appellant.
4. The Appellant denied the allegation of false declaration.
According to the Appellant, the declaration made by him that he passed
Master of Business Administration (MBA) in 2004 from Mysore
University was a clerical error. The Respondent abandoned the allegation
SRI MAIREMBAM PRITHVIRAJ@ PRITHVIRAJ SINGH v. SHRI
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PUKHREM SHARATCHANDRA SINGH [L. NAGESWARA RAO, J.]
of corrupt practices and other electoral malpractices during the trial of
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the election petition in the High Court. The High Court framed six issues
which are as follows:
i) "Whether the Returning Officer of 27'" Moirang AC has
illegally accepted the nomination paper of the respondent
or not?
ii) Whether the election of the respondent had been materially
affected by the acceptance of the nomination paper of the
respondent by the R.O. of 27r1, Moirang AIC or not?
iii) Whether the respondent had filed false affidavit in respect
of the highest education qualification in the Form, in which
the respondent had mentioned "MBA Mysore University"
or whether it was merely a clerical error?
iv) Whether the petition lacks material facts or not?
v) Whether the election petition is liable to be dismissed for
not putting the words "attested to be true copy of the
petition" on each and every page of the petition by the
petitioner himself or not; or on any of the defects raised
by the respondent in his written statement?
vi) Whether the petitioner is entitled to the relief claimed in
the writ petition?"
5. Issue No. 5 pertains to attestation of the petition not being
made properly. The objection raised by the Appellant to the maintainability
of the election petition was that only the front page of the election petition
had the words "Attested to be true copy." Issue No. 5 was answered ill'
favour of the Respondent. The High Court considered the main
controversy pertaining to the filing of false affidavit regarding the
educational qualification by the Appellant in a detailed manner. There is
no doubt that the Appellant filed Form 26 in which he mentioned his
educational qualification as MBA from Mysore University in 2004. After
careful consideration of the material on record and various judgments
cited by the parties, the High Court concluded that the declaration made
by the Appellant in Form 26 about his educational qualification as MBA
from Mysore University was false. The plea of the Appellant that the
defect in Form 26 was due to a clerical error was rejected. The contention
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of the Appellant that providing wrong information about the educational
qualification was not a defect of substantial character was also rejected.
The Appellant contended that the Respondent failed to plead and prove
that the result was 'materially affected' as required under Section I 00
(1 )(d) of the Act. The High Court did not accept the said contention on
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the ground that there were only two candidates in the fray in which case
it was not necessary to prove that the result of election of the returned
candidate was materially affected. The High Court further held if it is
found that the Appellant's nomination was improperly accepted, the result
of his election stood automatically affected materially. The High Court
on the basis of the above reasons declared the election of the Appellant
as void. The Appellant has filed this appeal challenging the same.
6. We have heard Mr. V. Giri, learned Senior Counsel for the
Appellant and Ms. Meenakshi Arora, learned Senior Counsel for the
Respondent. Mr. Giri submitted that the declaration pertaining to the
educational qualification of the Appellant was merely a clerical error
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and cannot be termed as a false declaration. In any event, the declaration
of educational qualification is not a defect of substantial nature warranting
rejection of his nomination. Mr. Giri also submitted that the election
petition was filed under Section 100 (I) (d) (i) and (iv) of the Act. He
stated that there is neither pleading nor proof in the election petition that
the improper acceptance of the Appellant's nomination had materially
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affected the result. According to Mr. Giri, the Appellant's election cannot
be set aside on the ground of improper acceptance of his nomination
without the requirement of Section 100 ( 1) (d) of the Act being satisfied.
He referred to Dur(li Mutlwswami v. N. Nac/1i(lppw1 (Int/ Ors.
reported in 1973 (2) sec 45 and submitted that the said judgment
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should be restricted to the facts of that case. He also attempted to
distinguish the said judgment as not applicable to the facts of this case
by submitting that it was a case of disqualification under Section 9-A of
the Act. He further submitted that the said case was one filed under
Section 100 (I) (a) of the Act. He contended that there is no need for
pleading or proving that the result was materially affected ifthe election
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is challenged under Section 100 (I) (a) to ( c) whereas it is compulsory in
a petition filed under Section I 00 (I) ( d).
7. Ms. Meenakshi Arora, learned Senior Counsel, argued that the
Respondent pleaded in the election petition that the result of the election
was materially affected by the improper acceptance of the nomination
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SRI MAIREMBAM PRITHVIRAJ@ PRITHVIRAJ SINGH v. SHRI
PUKHREM SHARATCHANDRA SINGH [L. NAGESWARA RAO, J.]
of the Appellant. She took us through the pleadings and evidence, both
oral and documentary, to contend that the declaration of educational
qualification by the Appellant was not a mistake. She submitted that the
same declaration was made by the Appellant even when he contested
the earlier election to the Legislative Assembly in 2008. She also
highlighted the contradictory stands relating to the declaration taken by
the Appellant. She submitted that it was not necessary to show that the
result of the election was materially affected when there were only two
contesting candidates for one seat.
She relied upon the judgment in
Durai Muthuswami (supra) which according to her, was approved in
Jagjit Singh v. Dlwram Pal Singh, reported in 1995 Supp (1) SCC
422. She further relied upon Union of India v. Association for
Democratic Reforms, reported in 2002 (5) SCC 294, People's
Union for Civil Liberties (PUCL) v. Union of India, re11orted in
2003 (4) SCC 399, Kisan_ Shankar Kathore v. Arun Dattatray
Sawant reported in 2014 .(14) SCC 162 and Resurgence India v.
Election Commission oflndia and Anr. reported in 2014 (14) SCC
189 in support of her submission that a voter has a right to know about
the educational qualification of the candidate and any false or misdeclaration would result in rejection of the nomination of the candidate.
Ms. Meenakshi Arora also cited Hari Krishna Lal v. Babu Lal
Marandi re11orted in 2003 (8) SCC 613 to contend that the false
declaration relating to the educational qualification of a candidate is a
defect of substantial character.
8. Two issues fall for our consideration in this appeal which are:
(a)Whether a false declaration relating to the educational
qualification is a defect of substantial character warranting
rejection of a nomination?
(b )Whether it is necessary to plead and prove that the result was
materially affected when the nomination of the returned
candidate was found to have been improperly accepted, moreso,
when there are only two candidates contesting the election?
9. Chapter I of Part V of the Act deals with the nomination of
candidates. Section 33 of the Act provides for presentation of nomination
paper and requirements of a valid nomination. A nomination paper
complete in the prescribed form, signed by a candidate and by an elector
of the constituency as proposer should be delivered to the Returning
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[2016) 9 S.C.R.
Officer within the prescribed period. Section 33-A which was inserted
by Act 72 of 2002 with effect from 24.08.2002 contemplates that a
candidate has to provide additional information, apart from the information
provided by him under Section 33 (I). The information mentioned in
Section 33-A relates to the criminal antecedents of a candidate. Section
36 deals with scrutiny of nomination. Section 36( 4) which is relevant for
adjudication of this case is as follows:
"36. Scrutiny of nomi11ation. -(4) The Returning Officer
shall not reject any nomination paper on the ground of
any defect which is not of a substantial character. "
I 0. Rule 4 (A) of the Conduct of Election Rules, 1961 which was
inserted with effect from 03.09.2002 reads as under:
"f 4A. Form of <tffidllvit to be filed lit lite time of
delivering 11omination paper.-The candidate or his
proposer, as the case may be, shall, at the time of
delivering to the returning officer the nomination paper
under subsection {I) of section 33 of the Act, also deliver
to him an affidavit sworn by the candidate before a
Magistrate of the first class or a Notary in Form 26.}"
11. A candidate has to file an affidavit along with his nomination
paper as prescribed in Form 26 in which one of the columns pertains to
the educational qualification. Grounds for declaring the election to be
void are provided in Section I 00 of the Act which is as under:
"100. Gro1111ds for declllring election to be void.-
[(I) Subject to the provisions of sub-section (2) if 3
[the High Cow:tJ is qf opinion-
(a) that on the date of his election a returned candidate was
not qualified, or was disqualified, to be chosen to fill the ·
seat under the Constitution or this Act 9 [or the Govern111ent
qf Union Territories Act, 1963 (20 qf 1963)]; or
(b) that any corrupt practice has been co111111itted by a returned
candidate or his election agent or by any other person
with the coi1se111 of a returned candidate or his election
agent; or
(c) that any nomination has been improperly rejected; or
(d)that the result of the election, in so far as it concerns a
SRI MAIREMBAM PRITHVIRAJ@ PRITHVIRAJ SINGH v. SHRI
697
PUKHREM SHARATCHANDRA SINGH [L. NAGESWARA RAO, J.]
returned candidate, has been materially affectedA
(i)by the improper acceptance or any nomination, or
(ii}by any corrupt practice committed in the interests of the
returned candidate 1 [by an agent other than his election
agent], or
(iii)by the improper reception, refusal or rejection of any vote
or the reception of any vote which is void, or
(iv)by any non-compliance with the provisions of the
Constitution or of this Act or of auy rules or orders made
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under this Act,
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[the High Court] shall declare the election of the
returned candidate to be void.]
[(2)] If in the opinion of 2 [the High Court], _a
returned candidate has been guilty by an agent, other
than his election agent, of any corrupt practice 4 ***
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but 2 [the High Court] is satisfied-
(a)that no such corrupt practice was committed at the election
by the candidate or his election agent, and every such
corrupt practice was committed contrary to the orders, and
5 [without the consent]. of the candidate or his election
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agent;
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(c)that the candidate and his election agent took all reasonable
means for preventing the commission of corrupt 7 ***
practices at the election; and
(d)that in all other respects the election was free from any
corrupt 7 ***practice on the part of the candidate or any
of his agents,
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then 2 [the High Court] may decide that the election of
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the returned candidate is not void. "
12. Section 125-A prescribes penalty for filing false affidavit which
is reproduced as under:
"[125A. Pe11alty for jili11g fttlse ttffitlavit, etc.-
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A candidate who hi111self or through his proposer, with
intent to be elected in an election,-
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(i) fails to furnish i1ifor111atio11 relating to sub-section (1) of
section 33A; or
(ii) give false information which he knows or has reason to
believe to be false; or
(iii)conceals any i11for111atio11, in his 110111i11atio11 paper
delivered under sub-section (1) of section 33 or in his
affidavit ·which is required to be delivered under sub-section
(2) of section 33A, as the case may be, shall,
notwithstanding anything contained in any other law for
the time being in force. be punishable with imprisonment
for a term which may extend to six months, or with fine, or
with both}"
I 3. Sir Winston Churchill underlining the importance of a voter in
a democratic form of Government stated as follows:
"At the bottom of all tributes paid to democracy is the
little 111an, walking into a little booth, with a little pencil,
making a little cross on a little bit of paper -
no amount
of rhetoric or voluminous discussion can possibly
diminish the overwhelming importance of the point. "
14. In Union of India v. Association for Democratic Reforms
(supra) this Court held that the voter has a fundamental right to
information about the contesting candidates. The voter has the choice
to decide whether he should cast a vote in favour of a person involved in
a criminal case. He also has a right to decide whether holding of an
educational qualification or holding of property is relevant for electing a
person to be his representative. Pursuant to the judgment in Union of
India v. Association for Democratic Reforms (supra) Section 33-A was
inserted in the Representation of the People Act providing for right to
additional inforn1ation by an Ordinance.
The challenge to the said
Ordinance was dealt with by this Court in People's Union for Civil
Liberties (PUCL) v. Union of India (supra) in which it was held as
follows:
"78. What e111erges from the above discussion can be
su111111arised thus:
SRI MAIREMBAM PRITHVIRAJ@ PRITHVIRAJ SINGH v. SHRI
PUKHREM SHARATCHANDRA SINGH [L. NAGESWARA RAO, J.]
(D) The contention that as there is no spec(fic
fundamental right conferred on a voter by any statutory
provision to know the antecedents of a candidate, the
directions given by this Court are against the statutory
provisions is. on the face of it, without any substance.
In an election petition challenging the validity of an
election of a particular candidate, the statutory
provisions would govern re~pective rights of the parties.
However, voters' funda111ental right to know the
antecedents of a candidate is independent of statulory
rights under the election law. A voter is first citizen of
this country and apart from statutory rights, he is having
funda111ental rights conferred by the Constitution.
Members of a democratic society should be s1!1Jicie111Zv
informed so that they may cast their votes i11telligentZv
in favour of persons who are to govern them. Right to
vote would be meaningless unless the citizens are well
informed about the antecedents of a candidate. There
can be little doubt that exposure to public gaze and
scrutiny is one of the surest means to cleanse our
democratic governing system and to have competent
legislatures. "
15. It is i·elevant to mention that the Election Commission of India
issued a press note on 28.06.2002 in which there was a reference to the
judgment of this Court in Union oflndia v. Association for Democratic
Reforms in which it was held that information on five aspects has to be
provided to the voter. One of the five aspects pertains to the educational
qualification of the candidates. An order was issued by the Election
Commission of India on 28.06.2002 directing that full and complete
information relating to the five aspects which were mentioned in the
judgment has to be furnished. Providing incomplete information or
suppression of material infonnation on any of the five aspects was to be
treated as a defect of substantial character by the Returning Officers.
16. In Resurgence India v. Election Commission oflndia and Anr.
(supra) this Court held that every candidate is obligated to file an affidavit
with relevant information with regard to their criminal antecedents, assets
and liabilities and educational qualification. The fundamental right under
Article 19 (I) (a) of the voter was reiterated in the said judgment and it
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was held that filing of affidavit with blank particulars would render the
affidavit as nugatory. In Kisan Shankar Kathore v. Arun Dattatray
Sawant reported in 2014 (14) SCC page 162 this Court considered
the question as to whether it was incumbent upon the Appellant to have
disclose the information sought for in the nomination form and whether
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the non-disclosure thereof render the nomination invalid and void. It
was held that non-furnishing of the required information would amount
to suppression/non-disclosure.
17. It is clear from the law laid down by this Court as stated
above that every voter has a fundamental right to know about the
educational qualification of a candidate. It is also clear from the provisions
of the Act, Rules and Form 26 that there is a duty cast on the candidates
to give correct information about their educational qualifications. It is
not in dispute that the Appellant did not study MBA in the Mysore
University. It is the case of the Appellant that reference to MBA from
Mysore University was a clerical error. It was contended by the
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Appellant that he always thought of doing MBA by correspondence
course from Mysore University. But, actually he did not do the course.
The question which has to be decided is whether the declaration given
by him in Form 26 would amount to a defect of substantial nature
warranting rejection of his nomination. Section 36 ( 4) of the Act mandates
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that the Returning Officer shall not reject a nomination paper on the
ground of any defect which is not of a substantial character. The
'declaration made by the Appellant in Form 26, filed in 2012 is not a
clerical error as contended by him. The Appellant contested election to
the same constituency in 2008 and in the affidavit filed by him in Form
26 he declared that he passed MBA from Mysore University in 2004.
In the affidavit filed by him in this election petition by way of examinationin-chief, the Appellant stated that his nomination paper and the enclosed
affidavit were prepared and filed by his counsel Chakpam Bimolchandra
Singh on the instructions of his agent Ph. Shamu Singh. He also stated
that his counsel filled the prescribed affidavit in his own hand-writing.
The Appellant also stated that he signed the affidavit without reading the
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contents and he came to know about the error only when the Respondent
raised his objection to the nomination. The Appellant further stated that
he was working in Projeon, Infosys Company and IBM till 2007 and
because of his job many local friends and elders thought that he was an
MBA degree-holder. His election agent also thought that he was holding
H
SRI MAIREMBAM PRITHVIRAJ@ PRITHVIRAJ SINGH v. SHRI
PUKHREM SHARATCHANDRA SINGH [L. NAGESWARA RAO, J.]
an MBA degree due to which he instructed the Advocate Chakpam
Bimolchandra Singh to fill up column 9 of the affidavit by stating that the
Appellant is an MBA degree-holder. In his cross-examination, the
Appellant gave evasive replies to the questions relating to his educational
qualification. He stated that he does not remember whether he had
undergone MBA from Mysore University and he does not remember
whether he possesses MBA degree. Chakpam Bimolchandra Singh
who was examined as DW-3 in his cross-examination denied having
filled up the entries in Form 26. He stated that he entered the educational
qualifications of the Appellant on the basis of instructions given by the
election agent Shamu Singh. He also stated that he was not present
before the Oath Commissioner when the Appellant signed the affidavit.
18. The contention of the Appellant that the declaration relating to
his educational qualification in the affidavit is a clerical error cannot be
accepted. It is not an error committed once. Since 2008, the Appellant
was making the statement that he has an MBA degree. The information
provided by him in the affidavit filed in Form 26 would amount to a false
declaration. The said false declaration cannot be said to be a defect
which is not substantial. He was given an oppo1tunity by the Returning
Officer to produce the relevant document in support of his declaration.
At least at that point of time he should have informed the Returning
Officer that an error crept into the declaration. He did not do so. The
false declaration relating to his educational qualification cannot be stated
to be not of a substantial character. It is no more res integra that every
candidate has to disclose his educational qualification to subserve the
right to information of the voter. Having made a false declaration relating
to his educational qualification, the Appellant cannot be permitted to
contend that the declaration is not of a substantial character. For the
reasons stated supra, we uphold the findings recorded by the High Court
that the false declaration relating to the educational qualification made
by the Appellant is substantial in nature.
19. Having answered the first question against the Appellant, we
proceed now to deal with the next point. Section I 00 ( 1) (a) to ( c) deals
with disqualification, corrupt practices and improper rejection of
nominations respectively which are _grounds for setting aside the election.
The sine qua 11011 for setting aside an election under Section l 00 (I) ( d)
is that the result of the election, in so far as it concerns a returned
candidate, has been materially affected. The contention of Mr. Giri,
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learned Senior Counsel for the Appellant is that even if it is held that the
nomination of the appellant was improperly accepted, his election cannot
be set aside in the absence of any pleading or proof that the result was
materially affected by the improper acceptance of the nomination. He
relied upon Magani Lal Manda! v. Bishnu Deo Bhandari, reported
in 2012 (3) sec page 314 to contend that every defect cannot be a
ground for setting aside an election under Section I 00 (I) ( d) without
further proof that it had materially affected the result of the returned
candidate. He also referred to Shambhu Prasad Sharma v. Charandas
Mahant and Ors. reported in 2012 (11) SCC nage 390 in which it
was held as follows:
"20. Coming to the allegatio11 that other candidates had
also not submitted affidavits in proper.format, rendering
the acceptance of their 11ominatio11 papers improper.
we need to point out that the appellant was required to
not only allege material facts relevant to such improper
acceptance, but .fi1rther 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 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 re fumed candidate. "
20. There is no dispute that an election cannot be set aside on the
ground of improper acceptance of any nomination without a pleading
and proof that the result of the returned candidate was materially affected.
The point to be considered is whether the law as laid down by this Court
relating to the pleading and proof of the fact of the result of the returned
candidate being materially affected applies to a case where the nomination
of the returned candidate is declared to have been improperly accepted.
A situation similar to the facts of this case arose for consideration of this
Court in Durai Muthuswami's case. It is necessary to deal with this
case in detail as the Counsel for the Appellant submitted that the said
judgment is not applicable to the facts of the present case and that finding
in the said case have to be treated as obiter.
21. The facts, in brief, of the case ofDurai Muthuswami are that
SRI MAIREMBAM PRITHV!RAJ@ PRITHV!RAJ SINGH v. SHRI
PUK.HREM SHARATCHANDRASINGH [L. NAGESWARARAO, J.]
the Petitioner in the election petition contested in the election to the
Tamil Nadu Legislative Assembly from Sankarapuram constituency. He
challenged the election of the First Respondent on the grounds ofimproper
acceptance of nomination of the returned candidate, rejection of I 0 I
postal ballot papers, ineligible persons permitted to vote, voting in the
name of dead persons and double voting. The High Court dismissed the
·election petition by holding that the Petitioner failed to allege and prove
that the result of the election was materially affected by the improper
acceptance of the nomination of the First Respondent as required by
Section I 00 (I) (d) of the Act. The Civil Appeal filed by the Petitioner
therein was allowed by this Court in Durai Muthuswami (supra) in which
it was held as follows:
"3. Before dealing with the question whether the learned
Judge was right in holding that he could not go into the
question whether the 1st respondent's nomination has
been improperly accepted because there was no
allegation in the election petition that the election had
been materially affected as a result of such improper
acceptance, we may look into the relevant provisions
of law. Under Section 81 of the Representation of the
People Act, 1951 an election petition calling in question
any election may be presented on one or more of the
grounds specified in sub-section (1) of Section JOO and
Section 101. It is not necessary to refer to the rest of
the section. Under Section 83(1) (a), insofar as it is
necessary for the purpose of this case, an election
petition shall contain a concise statement of the material
facts on which the petitioner relies. Under Section 100(1)
if the HiKh Court is qf opinion-
(a) that on the date of his election a returned candidate
was not qualified, or was disqualified, to be chosen to
fill the seat under the Constitution or this Act ....
(b)-(c) * * *
(d) that the result of the election, insofar as it concerns
a returned candidate, has been materially ajfected-
(i) by the improper acceptance of any nomination, or
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(ii)-(iii) •••
the High Court shall declare the ell!ction of the returned
candidate to be void. Therefore, what Section 100
requires is that the High Court before it declares the
election of a returned candidate is void should be of
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opinion that the result of the election insofar as it
·concerns a returned candidate has been materially
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ajfected·by the improper acceptance of any nomination.
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Under Section 83 all that was necessary was a concise
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statement of the material facts on which the petitioner
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.relies. That the appellant in this case has done. He has
also stated that the election is void because of the
improper acceptance of the 1st respondent's nomination
and the facts given showed that the 1st respondent was
suffering from a disqualification which will fall under
Section 9-A. That was why it was called improper
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acceptance. We do not consider that in the circu111sta11ces
o[_ this case it was necessary_ (pr the v.etitioner to have
also (prther alleged that the result o(_the election inso(_ar
as it concerns the returned candidate has been
materially_ a((gcted by_ the imv.ror..er accep_tance of_ the
1st resv.ondent 's nomination. That is the obvious
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conclusion to be drmvn (!'om the circumstances of_ this
case. There was only_ one seat to be fl/led and there
were only_ two contesting candidates.