Civil Appeal No. 5044 of 2014 (Arising out of SLP (C) No. 29882 of 2011), Civil Appeal No. 5045 of 2014 (Arising out of SLP (C) 14209 of 2012) and Civil Appeal No. 5078 of 2014 (Arising out of SLP (C) 21958 of 2013). Case: 1. Ashok Shankarrao Chavan, 2. Madhu Kora, 3. Smt. Umlesh Yadav Vs 1. Dr. Madhavrao Kinhalkar and Ors., 2. Election Commission of India, 3. Election Commission of India and Ors.. Supreme Court

Case Number:Civil Appeal No. 5044 of 2014 (Arising out of SLP (C) No. 29882 of 2011), Civil Appeal No. 5045 of 2014 (Arising out of SLP (C) 14209 of 2012) and Civil Appeal No. 5078 of 2014 (Arising out of SLP (C) 21958 of 2013)
Party Name:1. Ashok Shankarrao Chavan, 2. Madhu Kora, 3. Smt. Umlesh Yadav Vs 1. Dr. Madhavrao Kinhalkar and Ors., 2. Election Commission of India, 3. Election Commission of India and Ors.
Counsel:For Appearing Parties: Gopal Subramanium, Pravin M. Shah, Pramod Kohli, Sunil Kumar, Jayant Bhushan, Meenakshi Arora, Ashok H. Desai, Sr. Advs., Irshad Ahmad, AAG, Abhimanyu Bhandari, Samanvya Dhar Dwivedi, Aanchal Mullick, Aditya Sikchi, P.S. Bhakkad, Naveen Kumar, Himanshu Shekhar, Abhay Prakash Sahay, S.K. Sinha, Chaman Sharma, Tejasvi ...
Judges:Surinder Singh Nijjar and Fakkir Mohamed Ibrahim Kalifulla, JJ.
Issue:Representation of the People Act, 1951 - Sections 7, 8, 8A, 8(4), 10A, 10A(6), 11, 44, 76, 77, 77(1), 77(1)(2)(3), 77(2), 77(3), 78, 79, 80, 80A, 81, 82, 83, 83(1), 84, 85, 86, 86(1), 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 100(1), 100(2), 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 122, 122(...
Judgement Date:May 05, 2014
Court:Supreme Court
 
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Judgment:

Fakkir Mohamed Ibrahim Kalifulla, J.

1. Leave granted in all the Special Leave Petitions.

2. The simple yet important question of law that have arisen in these appeals before us and which have serious ramifications on the maintenance of sanctity in our democracy is as to whether the Election Commission, Under Section 10A of the Representation of the People Act, 1951, can conduct an enquiry to determine the falsity of the return of election expenses by an elected candidate, especially after a decision is rendered by the High Court in the Election Petition preferred by the Respondent No. 1.

3. On the aforesaid background, let us briefly examine the facts of this case. The appeal (@ SLP(C) No. 29882 of 2011) has been filed by the candidate who was elected in the Assembly elections in the State of Maharashtra. The results of the election to the Assembly were declared on 22.10.2009. The Respondent No. 1 was one of the candidates who contested the said election as against the Appellant. The Appellant was declared elected and the Respondent No. 1 was an unsuccessful candidate. As per the provisions of the Representation of the People Act, 1951 and the Conduct of Election Rules, 1961 (hereinafter called "the Act and the Rules"), within one month from the date of publication of the results, a statement of election expenses has to be filed by the candidate with the District Election Officer (hereinafter called "DEO"). The Appellant stated to have filed his statement of election expenses on 17.11.2009, i.e., within one month of the date of election. It is also brought to our notice that on 24.11.2009, the DEO, Nanded forwarded his report to the Election Commission of India and that according to the Appellant, nothing adverse was stated in the said report. However, on 02.12.2009, the Respondent No. 1 filed a complaint with the Election Commission alleging violation of the Election Code based on newspaper reports. Besides the above complaint of the Respondent No. 1 to the Election Commission, he also filed an Election Petition before the Election Tribunal (High Court) on 04.12.2009. This very allegation which was raised before the Election Commission was stated to have been raised in the Election Petition as well. The Election Petition was dismissed by the Election Tribunal (High Court) on 18.10.2012 on the ground of want of material particulars. The Respondent No. 1 thereby preferred a statutory appeal before this Court in Civil Appeal No. 9271 of 2012, which was also dismissed by this Court on 21.01.2013.

4. We heard Mr. Gopal Subramanium, learned Senior Counsel for the Appellant in the appeal (@ SLP(C) No. 29882 of 2011), Mr. Venkatramani, learned Senior Advocate for the Appellant in the appeal (@ SLP(C) No. 14209 of 2012), Mr. Sunil Kumar, Senior Advocate for the Appellant in the appeal (@ SLP(C) No. 21958 of 2013. We also heard Mr. Jayant Bhushan, Senior Advocate for the Respondent No. 1 in the appeal (@ SLP(C) No. 29882 of 2011) and Ms. Pinki Anand, Senior Advocate for Respondent Nos. 2 and 3 in the said appeal. Mr. L. Nageswar Rao, Additional Solicitor General appeared for the Respondent No. 5, Union of India and Mr. Ashok H. Desai, Senior Advocate represented the Election Commission. We also heard Mr. Prashant Bhushan, learned Counsel, who appeared for the Applicants/Intervenors through I.A. No. 2 of 2013.

5. Mr. Gopal Subramanium, learned Senior Counsel in the first instance, referred to Sections 77(1)(2)(3), 80A, 86(1), 100(1)(a)(b) and 123(6), as well as Section 10A of the said Act. The learned Senior Counsel also referred to Articles 101(3)(a), 102(1)(e) and 103 of the Constitution, as well as Articles 190, 191(1)(e) and 192. The learned Senior Counsel also made reference to Rules 86, 87, 88 and 89 falling under Part VIII of the Rules and contended that the Election Commission had no jurisdiction to deal with the issue relating to disqualification on the ground of irregularity in the lodging of election expenses in the present case, by virtue of the fact that the said issue can only be dealt with in an Election Petition before the Election Tribunal (High Court). According to learned Senior Counsel, in the case on hand, since at the instance of Respondent No. 1, the successful election of the Appellant was the subject matter of challenge in an Election Petition, which was dismissed by the Election Tribunal (High Court) for want of material particulars and upheld by this Court in Civil Appeal No. 9271 of 2012, there is total lack of jurisdiction for the Election Commission to deal with said issue all over again.

6. The learned Senior Counsel also brought to our notice the old Section 7(c) of the 1950 Act, which was a provision for disqualification prior to the 1966 amendment by which Section 10A was introduced and also referred to the earlier judgment of this Court reported in Sucheta Kripalani v. S.S. Dulat and Ors. - AIR 1955 SC 758, as well as the subsequent decision reported in L.R. Shivaramagowda and Ors. v. T.M. Chandrashekar (D) by L.Rs. and Ors. - 1999 (1) SCC 666. The learned Senior Counsel then contended that when the Election Petition, as preferred Under Section 86 of the Act was dismissed for want of material particulars, which is a binding judgment, having regard to the principles laid down in the decisions of this Court reported in Dipak Chandra Ruhidas v. Chandan Kumar Sarkar - 2003 (7) SCC 66 and Azhar Hussain v. Rajiv Gandhi - 1986 (Supp) SCC 315, such contentions are to be pleaded/supported by proper material facts and when once such plea was dealt with by the Election Tribunal (High Court) and rejected, which was also upheld by this Court, there is no residuary jurisdiction left with the Election Commission to pass another order of disqualification. The learned Senior Counsel contended that though the Election Petition was dismissed for want of material particulars, still it is a final judgment and that the same is binding on all concerned. The learned Senior Counsel after referring to Section 10A vis-à-vis the old Section 7(c) of the Act, contended that failure to lodge the account 'in the mariner required' is an exercise to be examined in a summary manner and there is no scope for an adjudication as sought to be made by the Election Commission. The learned Senior Counsel also contended that for the first time since the amendment in 1966, the Election Commission seeks to examine the correctness of the details in an elaborate manner, which is not permissible.

7. According to the learned Senior Counsel, while Section 78 of the Act may be referable to Section 10A, Section 77 cannot be read into Section 10A. After making reference to Sections 77, 100, 123(6) as well as Sections 44, 76, 99 and 100 of the Act learned Senior Counsel contended that while under the old law, a false return was a corrupt practice which can earn a disqualification, in the light of the amendment now made, the Election Commission cannot confer upon itself a jurisdiction, even after an adjudication in an election petition, by seeking to exercise its powers Under Section 10A. The learned Senior Counsel by referring to the earlier decision of this Court in Sucheta Kripalani (supra) contended that the ratio laid down therein that the Election Commission can only see the form and not substance, continue to hold good even as on date.

8. According to the learned Senior Counsel, after the amendment to Section 7(c) and introduction of Section 10A, the automatic disqualification has been taken away and the power is now vested with the Election Commission. It was, however, contended that the present attempt of the Election Commission to hold an adjudication of the issue, if accepted, would result in collision with the judicial forum, which has already exercised its powers in an Election Petition. According to learned Senior Counsel, the law declared in Sucheta Kripalani (supra) which held the field prior to the various amendments introduced viz to Sections 7, 8, 8A, 10, 10A, 11, 77, 85, 101(b) and 126, continue to hold good.

9. The learned Senior Counsel also finally brought to our notice the amended Rule 89 after the 1966 amendment in which Sub-rule (5) was introduced. This Rule empowers the Election Commission to take a decision in the event of the contesting candidates failing to lodge their account of election expenses within the time and in the manner required by the Act, as well as the Rules by which the Election Commission can call upon the candidate concerned to show cause why he should not be disqualified Under Section 10A for his failure. The learned Senior Counsel then referred to the order impugned in the appeal (@ SLP(C) No. 29882 of 2011) passed by the Election Commission holding that the Election Commission is fully empowered to pass an order of disqualification for the failure of the elected candidate to lodge the account as per the Act and the Rules.

10. The sum and substance of the submission of Mr. Gopal Subramanium, learned Senior Counsel is:

(a) By virtue of Article 329(b) of the Constitution read with Section 80 of the Act, a challenge to the election can only be by way of an election petition, that the election of the Appellant having been challenged unsuccessfully, in an election petition which was also confirmed by this Court in C.A. 9271/2012 by order dater 21.1.2013, there is no power or jurisdiction with the Election Commissioner to enquire into the validity of the said election or for that matter pass an order of disqualification by way of holding an enquiry Under Section 10A of the Act.

(b) Even after the amendments to the Act in 1956, as well as in 1966, in the end by which Section 7(c) came to be amended and, thereafter, replaced by Section 10A, whatever ratio laid down by this Court in Sucheta Kripalani (supra) continued to hold good and that the judgment in L.R. Shivaramagowda (supra) was clearly distinguishable and required reconsideration. The submission is that as per...

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