2011 Supreme(Bom) 216

2011 (3) ALL MR 18
High Court of Judicature at Bombay
ROSHAN DALVI
Arjunadada Dashrath Bhuse
Versus
Dadaji Dagadu Bhuse
Election Petition No.30 of 2009
Decided on : 23-02-2011

Headnote:Constitution of India - Articles 19(1)(a) and 324- Representation of the People Act, 1951, Sections 33-A, 36 and 100-Conduct of Election Rules, 1961, Rule 4-A, Form 26-Election -Nomination Form-Disclosure of criminal antecedent-Omission of by winning candidate-Respondent, at time of nomination only disclosed Section of IPC and not disclosed even short description of offences of which he was accused-Non-compliance of mandatory requirement-Nomination void-Election liable to be set aside.-It is the description of the offence which is the most material aspect for disclosure. The description of that offence must not be in numerical terms by giving the numbers of the sections of the IPC which is the general substantive law enumerating various offences with which a citizen could be charged or accused of. It requires the description to be given in words which is under the sub-title of the respective Sections dealing with those offences. The description in words would be more intelligible to the discerning, though not an educated, voter.

       It is true that the very look at the affidavit of the Respondent filed along with his nomination would show the defect by non-disclosure of the material fact. The most preliminary inquiry b y merely going through the nomination form must make the Returning Officer aware and bound to reject such nomination which is incomplete in that material particular. That has not been done. The nomination of the respondent has been accepted and the respondent has been later declared elected. It must, therefore, be seen whether the election of the respondent is required to be declared void. That could be declared void under Section 100(1)(a), if he became disqualified to fill the seat. It can also be declared void under Section 100(1)(d)(i) by improper acceptance of his nomination. Indeed the nomination was improperly accepted. It must, therefore, be seen whether the nomination, improperly accepted, per se rendered the election of the respondent void, if it could ever have been accepted at all under Section 100(1)(a) of the RPA, which does not even require the need for seeing whether the election was materially affected, or if only the nomination was improperly accepted under Section 100(1)(d) of the RPA so that the result of the election, in so far as it concerns the petitioner, was materially affected.

       To understand this anomaly, the result of improper acceptance of any nomination must be considered. If the nomination of a candidate other than the returned candidate is improperly accepted, the number of votes, which would have been cast in favour of such a candidate, would have enured for the benefit of the returned candidate as also the other candidates. If such votes made any difference. It would come up for consideration. In such a case whether it materially affected the result of the election would have to be seen. It would materially affect the result of the election of the returned candidate as also the other candidates standing for election. Consequently, evidence in that behalf depending upon the facts of that case would have top be considered. This would not be the case for a returned candidate. His nomination being void; the votes that he secured would be wasted. All those votes would make a difference to the other candidates. It matters not that some of those votes would be cast in favour of one or the other of the remaining candidates. What is material is that no votes would have been cast in favour of the returned candidate if his nomination, which was void, was not accepted.

       The case of D.K. Sharma v. Ram Sharma Yadav, AIR 1993 SC 95, to which my attention has been drawn by counsel on behalf of the respondent, was the case in which the candidate who was disqualified was allowed to stand for election had the votes cast in his favour being rendered wasted. If all the votes cast in favour of the candidate who was elected were to be ignored, the candidate who secured second highest votes, it was argued, was to be declared elected. This was based upon the analogy observed in the case of Konappa Rudrappa Nadgouda v. Vishwanath Reddy, (1969) SCR 90: AIR 1969 SC 604. However, that was a case in which there were only two candidates who stood for election since one was disqualified, other was declared elected. Consequently, in the case of D.K. Sharma, the Court considered that the evidence of 15 of the voters who were examined had not stated that they themselves exercised their votes. Their evidence was that they were aware of the disqualification of the candidate before they voted for him. They were workers of the Petitioner. They deposed that they canvassed that no vote should be cast in favour of the Respondent who was disqualified. However, none stated that even if they had the notice of disqualification, they would exercise their vote in favour of the returned candidate only. No documentary evidence showing that the voters were informed was produced. The election was not interfered with.

       This is case of a returned candidate who has failed in his statutory duty. His nomination is void. It could not have been accepted. Hence the votes cast in his favour must be wasted. They cannot be considered. It matters not whether or how it would materially affect the election.