The court established that the false declaration of assets and liabilities in a nomination paper cannot be a ground for setting aside the acceptance of the nomination paper by the Returning Officer, as per the orders of the Election Commission and the Supreme Court.

A.K. Patnaik, C.J.

1. The petitioner No. 1 is a working journalist and is associated with various National and International print and electronic media in Madhya Pradesh and the petitioner No. 2 is a practising Advocate. They have filed this writ petition as a Public Interest Litigation claiming some reliefs relating to the election of respondent No. 6 to the Madhya Pradesh Legislative Assembly from the Jabalpur Cantonment Constituency.

2. The petitioners have stated in the writ petition that as per the election programme, scrutiny of the nomination papers of the candidates for election from the Jabalpur Cantonment Constituency was conducted by the Returning Officer, Mr. O.P. Shrivastava, the Additional Collector, Jabalpur on 8-11 -2008 and the candidate of the Congress Party submitted a written objection to the candidature of the respondent No. 6 stating inter alia that the declaration made by the respondent No. 6 in Annexure 1 to the nomination paper that he had only 310 sq. meter of land was completely false and that actually the respondent No. 6 had a plot measuring 10,000 sq. ft. costing around 1.60 crore. In the written objection, the Congress candidate had also stated that the respondent No. 6 was the owner of the entire 10,000 sq. ft. of the area of land and yet respondent No. 6 had stated in the declaration that he had only a share as a co-owner of the property. In the written objection, the Congress candidate had also stated that respondent No. 6 had stated in the declaration that the house was a very small house and that the cost of construction was only Rs. 9,59,136/-, but the actual cost of construction would be around Rs. 64,00,000/-. The petitioners have contended that the respondent No. 6 was liable for prosecution and his nomination paper was liable to be rejected, but the Returning Officer (respondent No. 4) by his order dated 8-11-2008 has wrongly accepted the nomination paper of the respondent No. 6.

3. Mr. Vasant Daniel, learned Counsel for petitioners submitted that in N.P. Ponnuswami v. The Returning Officer, Namakkal Constituency AIR (39) 1952 SC 64, the Supreme Court had held that the Representation of People Act, 1951 (for short 'the Act of 1951') provides for only one remedy in respect of election and that remedy was an election petition to be presented after the election was over. He submitted that this position of law has undergone a substantial change after the judgments of the Supreme Court in Union of India v. Association for Democratic Reforms and Anr. AIR 2002 SC 2112, and Peoples Union for Civil Liberties (PUCL) and Anr. v. Union of India and Ors. AIR 2003 SC 2363. He submitted that in these two later decisions, the Supreme Court has taken a view that Article 19 (1) (a) of the Constitution which provides for freedom of speech and expression would cover in its fold the right of the voter to know specified antecedents of a candidate who is contesting election and, therefore, the candidate contesting the election must make a declaration about his criminal antecedents if any and about his assets and liabilities along with the nomination paper. According to Mr. Daniel, by accepting a false declaration of a candidate about his assets and liabilities filed along with the nomination paper, the Returning Officer has violated the fundamental right of the petitioners and, therefore, the petitioners could file a writ petition under Article 226 of the Constitution to enforce their fundamental right and have the order of the Returning Officer accepting the nomination paper of the candidate set aside by the Court.

4. Mr. K.K. Trivedi, learned Counsel appearing for the Election Commission, on the other hand, submitted that pursuant to the orders of the Supreme Court in Union of India v. Association for Democratic Reforms and Anr. (supra), delivered on 2-5-2002, the Election Commission had issued an order dated 28-6-2002 under Article 324 of the Constitution, but after the order of the Hon'ble Supreme Court