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Abdul Rahman Advocate vs Nutan Rajwade 31 Wps/2993/2019 … on 24 April, 2019

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AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Civil Revision No.11 of 2017

Order reserved on: 29-3-2019

Order delivered on: 24-4-2019

Abdul Rahman (Advocate), (wrongly mentioned as Haman in
certified copy) S/o Shri Mohd. Suleman, Aged about 40 years, R/o
House No.MIG-156, Pt. Ravishankar Shukla Nagar, Ward No.23,
Korba, Tahsil and Distt. Korba (C.G.)
(Respondent No. 1 in Election Petition)
(Petitioner)
— Applicant

Versus

1. Nutan Rajwade, S/o Late Shri H.S. Rajwade, Aged about 41 years,
R/o Plot No.RC-6, Pt. Ravishankar Shukla Nagar, Ward No.23,
Korba, Tahsil and Distt. Korba (C.G.)
(Petitioner in Election Petition)
(Applicant)

2. Ashok Bhale, S/o Late Dharamdas Bhale, R/o House No.57,
Balmiki Ambedkar Aawas, Pt. Ravishankar Shukla Nagar, Ward
No.23, Korba, Tahsil and Distt. Korba (C.G.)
(Respondent No.2 In Election Petition)

3. Smt. Geeta Giri Goswami, W/o Shri Ramgiri Goswami, R/o House
No.48, Pushpa Vihar, Pt. Ravishankar Shukla Nagar, Ward No.23,
Korba, Tahsil and Distt. Korba (C.G.)
(Respondent No.3 in Election Petition)

4. Vijay Yadav, S/o Late Madhav Prasad Yadav, R/o House No.1-B,
48, Shaheed Bhagat Singh Colony, SECL, Korba, Tahsil and Distt.
Korba (C.G.)
(Respondent No.4 in Election Petition)

5. District Election Officer, Korba (Municipal Corporation Ward No.23,
Korba), Distt. Korba (C.G.)
(Respondent No.5 in Election Petition)
— Respondents

————————————————————————————————–

For Petitioner: Dr. N.K. Shukla, Senior Advocate with Mr. Ajay
Lakra and Mr. Ashwin Panicker, Advocates.

For Respondent No.1: Mr. Sanjay Patel, Advocate.
For Respondent No.5 / State: –

Mr. Aditya Bharadwaj, Panel Lawyer.

————————————————————————————————–
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Hon’ble Shri Justice Sanjay K. Agrawal

C.A.V. Order

1. Taking exception to the judgment and order of the learned District

Judge, Korba acting as Election Tribunal constituted under Section

441 of the Chhattisgarh Municipal Corporation Act, 1956 (for short,

‘the Act of 1956’), this civil revision under Section 441-F(2) of the

Act of 1956 has been preferred branding the said order as

unsustainable and contrary to law, whereby the learned Tribunal

has set aside the election of the petitioner on the post of Councillor,

Ward No.23 of Municipal Corporation, Korba.

2. The election of Mayor, Municipal Corporation, Korba and

Councillors of all the wards of Municipal Corporation, Korba

including Ward No.23 was held on 29-12-2014 and result was

declared on 4-1-2015. The petitioner and respondents No.1 to 4

contested election for the post of Councillor of the said ward No.23

which was reserved for Other Backward Classes (OBC). The

petitioner was declared elected as Councillor on 4-1-2015 against

the seat reserved for OBC. The election petitioner / respondent

No.1 herein (hereinafter referred to as ‘the election petitioner’) filed

election petition under Section 441-F of the Act of 1956 questioning

the election of the petitioner mainly on the ground that on the date

of filing nomination paper, Sessions Trial No.46/2009 for offence

punishable under Sections 147, 307 read with Section 34, 294 and

506 Part-II of the IPC were registered and charges were framed

against the petitioner and the case was fixed for evidence and that

charge-sheet was filed pursuant to the offence registered under

Crime No.1077/2008 at Police Station Kotwali, Korba in which most
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of the offences are punishable with imprisonment for two years or

more, and the petitioner / returned candidate did not disclose the

pendency of said criminal case in his nomination paper and thereby

his election is liable to be declared void. It was also pleaded that

the petitioner filed his provisional caste certificate issued in

Revenue Case No.7052/B-121/2013-14, but when he obtained

certified copy from the Office of the Tahsildar, it was revealed that

no such caste certificate was issued in favour of the petitioner

against the said revenue case number, but domicile certificate and

income certificate had been issued at the instance of one Abdul

Rafique Khan of his daughter, as such, the caste certificate issued

in favour of the petitioner is forged and he was not qualified and

entitled to contest the election of the said Ward No.23 of Municipal

Corporation, Korba, as such, his election may be declared void.

3. The petitioner herein filed his reply before the Election Tribunal and

opposed the prayer made in the election petition and stated that the

caste certificate issued by the competent authority / Tahsildar which

has not been questioned has attained finality and that offence was

registered prior to six months from the date of filing of nomination,

therefore, the petitioner was not required to disclose the pendency

of said criminal case while filing the nomination paper. The Election

Tribunal made enquiry on the election petition and thereafter, by the

impugned judgment declared the election of the petitioner void on

the ground that the petitioner failed to disclose the pendency of

criminal case in which charges had already been framed at the time

of his nomination paper and secondly, that his caste certificate was

not issued by the competent officer and therefore the petitioner
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does not belong to OBC, as such, his election on the reserved post

of Councillor of Municipal Corporation, Korba is void and declared

the post to be vacant against which this civil revision has been

preferred under the above-stated provisions of the Act of 1956.

4. Dr. N.K. Shukla, learned Senior Counsel appearing for the

petitioner / returned candidate, would submit as under:-

1. Neither in the Act of 1956 nor in the Chhattisgarh Nagarpalika

Nirvachan Niyam, 1994 there is any provision mandating the

candidate contesting the election of Councillor requiring to file

affidavit disclosing the criminal antecedents, therefore, the

omission, if any, is of no consequence and as such, the

learned Election Tribunal is absolutely unjustified in declaring

the election, to be void on that ground. He would bring to the

notice of the Court that notification dated 26th March, 2018,

has been issued by the State Government in exercise of the

powers conferred by sub-section (2) of Section 14 of the Act

of 1956 in the shape of Rule 25-A of the Chhattisgarh

Nagarpalika Nirvachan Niyam, 1994, in which now, with effect

from 26-3-2018, the candidate is required to disclose his

criminal antecedents as such, the election having already

been held on 29-12-2014, in absence of requirement of

disclosing the criminal antecedents, his election on the

ground of alleged non-disclosure of criminal antecedents /

pendency of criminal case cannot be set-aside and the order

passed by the Election Tribunal is liable to be set-aside.

2. The election petition is conspicuously silent with regard to the

requirement of Section 441-B (d) of the Act of 1956 that the
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result of the election insofar as it concerns the returned

candidate i.e. the petitioner herein has been materially

affected by improper acceptance of his nomination paper, as

it is the case of the election petitioner that the nomination

paper of the petitioner herein has been accepted improperly,

therefore, the order of the learned District Judge deserves to

be set-aside.

3. Lastly, he would submit that the election law has to be

construed strictly and unless there is clear pleading, no

evidence can be let-in and election petition cannot be tried in

absence of necessary pleading, as in this case, except

throwing challenge to the provisional caste certificate of the

returned candidate / petitioner, the election petitioner did not

question the caste of the petitioner that he does not belong to

OBC and therefore he was not entitled and qualified to

contest the election on the seat reserved for OBC in Ward

No.23 of Municipal Corporation, Korba. Therefore,

declaration of his election to be void is the jurisdictional error

crept-in in the order of the learned Election Tribunal. As such,

judgment and order of the learned Election Tribunal deserve

to be set-aside.

5. Opposing the submissions made by learned counsel for the

petitioner; Mr. Sanjay Patel, learned counsel appearing for the

election petitioner / respondent No.1, would submit as under: –

1. Admittedly and undisputedly, Sessions Trial No.46/2009 for

offence punishable under Sections 147, 307 read with

Section 34, 294 and 506 Part-II of the IPC was registered and
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pending in the Court of Sessions Judge, Korba against the

petitioner in which charges have already been framed and

one case was fixed for evidence after charge, and that fact

was deliberately and willfully suppressed by the petitioner

while filing nomination paper by the petitioner / returned

candidate and that amounts to corrupt practice and therefore

his election has rightly been held to be void by the learned

Election Tribunal.

2. The petitioner contested the election on the strength of

provisional caste certificate Ex.P-3 which was not issued

against Revenue Case No.7052/B-121/2013-14, whereas

domicile certificate and income certificate were issued to the

ward of one Abdul Rafique Khan, therefore, on the strength of

forged provisional caste certificate, he contested the election

and got elected himself which has rightly been set-aside by

the Election Tribunal. Therefore, no interference is warranted

in exercise of the jurisdiction of this Court under Section 441-

B of the Act of 1956 and the civil revision deserves to be

dismissed.

6. I have heard learned counsel for the parties and considered their

rival submissions made herein-above and also went through the

record with utmost circumspection.

7. In order to adjudicate the plea raised at the Bar, it would be

appropriate to notice the provisions contained in Section 441 of the

Act of 1956, particularly Sections 441(4) and 441(5), which provide

as under: –

“441. Election petitions.–(1) to (3) xxx xxx xxx
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(4) A petitioner shall join as respondents to his petition–

(a) where the petitioner, in addition to claiming a
declaration that the election or nomination, as the case
may be, of all or any of the returned candidates is void,
claims a further declaration that he himself or any
other candidate has been duly elected or nominated,
all the contesting candidates other than the petitioner,
and where no such further declaration is claimed, all
the returned candidates;

(b) any other candidates against whom allegations of
any corrupt practices are made in the petition.

(5) An election petition shall–

(a) contain a concise statement of the material facts on
which the petitioner relies;

(b) with sufficient particulars, set forth the ground or
grounds on which the election or nomination is called
in question;

(c) be signed by the petitioner and verified in the
manner prescribed in the Code of Civil Procedure,
1908 (V of 1908), for the verification of pleadings.”

8. Section 441-B of the Act of 1956 provides for grounds for declaring

elections or nominations to be void. Clauses (a), (b) and (d)(i) of

sub-section (1) of Section 441-B of the Act of 1956 provide as

under: –

“441-B. Grounds for declaring elections or
nominations to be void.–(1) Subject to the provisions
of sub-section (2), if the Court is of the opinion–

(a) that on the date of his election or nomination a
returned candidate was not qualified or was
disqualified, to be chosen as a Mayor or a Councillor;
or

(b) that any corrupt practice has been committed by a
returned candidate or his agent or by any other person
with the consent of a returned candidate or his agent;

or

(c) xxx xxx xxx

(d) that the result of the election or nomination, in so
far as it concerns a returned candidate has been
materially affected–

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(i) by the improper acceptance of any nomination; or

(ii) to (iv) xxx xxx xxx

the Court shall declare the election of the returned
candidate to be void.”

9. The election of the Councillor, Municipal Corporation, is governed

by the Chhattisgarh Nagarpalika Nirvachan Niyam, 1994 (for short,

‘the Rules of 1994’). The Rules of 1994 were amended with effect

from 17-8-2004 and Rule 25-A was inserted which states as

under:-

Rule 25-A “Under the provision of sub-rule (1) of
Rule 25, every candidate who is submitting his
nomination for the election of Councillor of Chairperson
of Nagar Panchayat before the returning officer shall
necessarily enclose a self-declaration in form 3 ‘A’ and
every candidate who is submitting his nomination
before the returning officer for the election of Mayor of
Councillor of any Municipal Corporation of for
President of Councillor of any Municipal Council shall
necessarily enclose an affidavit sworn before a
Magistrate of the first class or a Notary in form 3’B’ ”

10. Rule 24 of the Rules of 1994 provides for nomination of

candidates. Sub-rule (1) of Rule 24 provides that any person

may be nominated as a candidate to fill a seat if he is qualified to

be elected to fill that seat under the provisions of the Act. Sub-

rule (2) provides that every nomination paper presented under

Rule 25 shall be in Form-3.

11. Rule 25 of the Rules of 1994 relates to presentation of

nomination paper and requirement for valid nomination which

states as under:-

“25. Presentation of nomination papers.- (1) On or
before the date appointed under clause (a) of Rule 21
each candidate shall either in person or by his
proposer deliver to the Returning Officer of Asstt.
Returning Officer so authorised by the Returning
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Officer for that purpose, during the time and at the
place specified in the notice issued under Rule 21, a
duly completed nomination paper in the prescribed
form and signed by the candidate and [in the case of
election of Mayor or President, by a voter of any ward,
by a voter of that ward] as proposer:

Provided that any person who is subject to any
disqualifications as voter under the Act shall not be
eligible to sign any nomination paper as proposer.”

(2) *** *** ***”

12. Rule 28 of the Rules of 1994 provides for scrutiny of nomination

paper, which states as under:-

“28. Scrutiny of nomination papers. – (1) On the
date fixed for the scrutiny of nomination papers
received under Rule 25 the candidates, their election
agents, one proposer of each candidate, and one other
person duly authorised in writing by the candidate but
no other person, may attend at the time and place
appointed in this behalf under Rule 21 and the
Returning Officer shall give them all reasonable
facilities for examining the nomination papers of all
candidates which have been delivered as required by
Rule 25.

(2) The Returning Officer shall then examine the
nomination papers and shall decide all objections
which may be made with regard to any nomination and
may either on such objections or on his own motion,
alter such summary inquiry if any, as he deems
necessary, reject any nomination paper on any of the
following grounds, that is to say-

(a) that the candidate is disqualified for being elected
to fill the seat by or under the Act;

(b) that the proposer is disqualified from subscribing
a nomination paper;

(c) that there has been a failure to comply with any
of the provisions of Rules 24, [24-A], 25, 26; and

(d) that the signature of the candidate or the
proposer on the nomination paper is not genuine.

(3) Nothing contained in clause (c) or (d) of sub-rule (2)
shall he deemed to authorise the rejection of the
nomination of any candidate on the ground of any
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irregularity in respect of a nomination paper, if the
candidate has been duly nominated by means of
another nomination paper in respect of which no
irregularity has been committed.

(4) The Returning Officer shall not reject any
nomination paper on the ground of mere clerical or
printing error or any defect which is not of a substantial
nature.

(5) The Returning Officer shall hold the scrutiny on the
date appointed in this behalf under clause (b) of Rule
21 and shall not allow any adjournment of the
proceedings except when such proceedings are
interrupted or obstructed by riot or open violence or by
causes beyond his control :

Provided that in case any objection is raised by
the Returning Officer or is made by any other person,
the candidate may be allowed time to rebut it not later
than the next day but one following the date fixed for
scrutiny and the Returning Officer shall record his
decision on the date to which the proceedings have
been adjourned.

(5-A) If nomination of a candidate has been accepted
by the Returning Officer for more than one ward
through oversight or for want of objection or for any
other reason whatsoever, the Returning Officer shall
after giving an opportunity to such candidate or his
election agent, ignore the nomination paper tendered
later in point of time and record this fact on such
nomination paper and shall delete or cause to be
deleted from the list of validly nominated candidate in
Form 5, the name of such candidate from the ward in
question. The Returning Officer shall also affix a copy
of the revised list in Form 5 on the notice board in his
office, duly recording the date and time of such
affixture below his signature.

(6) The Returning Officer shall endorse on each
nomination paper his decision regarding accepting or
rejecting the same and, if the nomination paper is
rejected shall record in writing a brief statement of his
reasons for such rejection. The order passed by the
Returning Officer shall be final.

(7) For the purposes of this rule the production of a
certified copy of an entry made in the voters’ list of the
relevant Municipality shall be conclusive evidence of
the right of any voter named in that entry’ to stand for
election, unless it is proved that the candidate is
disqualified.

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(8) Immediately after all the nomination papers have
been scrutinised and decision accepting or rejecting
the same have been recorded, the Returning Officer
shall prepare a list of validly nominated candidates in
Form 5 and affix it on the notice board in his office, duly
recording the date and lime of such affixure, below his
signatures.”

13. A nomination filed by candidate can be rejected on the grounds

enumerated in Rule 28(2) (a) to (d) of the Rules of 1994. Sub-

rule (4) of Rule 28 provides that the Returning Officer shall not

reject any nomination paper on the ground of mere clerical or

printing error or any defect which is not of a substantial nature.

14. The election petition was filed by respondent No.1 herein

questioning the election of the petitioner herein mainly on the

ground that under Section 441-B(1)(a) of the Act of 1956, on the

date of election, the petitioner / returned candidate was not

qualified to be chosen as Councillor, as the seat on which he was

elected was reserved for OBC and the petitioner has submitted

forged caste certificate, therefore, he could not have been

elected on the said post and on the said seat and secondly, on

the ground that the nomination paper of the petitioner was

improperly accepted, as he did not disclose the two pending

criminal cases in his nomination paper which he was obliged to

disclose while filing the nomination paper and by which the

nomination paper was improperly accepted.

15. The question for consideration would be,

1. Whether the petitioner was qualified to be chosen as

Councillor of Municipal Corporation, Korba on the date of

election?

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2. Whether his nomination paper was improperly accepted, as he

was required to disclose pendency of criminal cases / criminal

antecedents which he did not disclose and therefore the result

of election has been materially affected by the said improper

acceptance of nomination paper?

Re: Question No.1: –

16. As noticed herein-above, Section 441(5)(a) of the Act of 1956

clearly provides that an election petition shall contain a concise

statement of the material facts on which the petitioner relies and

clause (b) further provides that an election petition shall with

sufficient particulars, set forth the ground or grounds on which the

election or nomination is called in question. The aforesaid

provisions of the Act of 1956 are pari materia provisions as

contained in Section 83(1)(a) the Representation of the People Act,

1951.

17. Their Lordships of the Supreme Court in the matter of Santosh

Yadav v. Narender Singh 1 dealing with need of specific pleading

in the election petition have clearly laid down that concise and

specific pleadings setting out all relevant material facts are

imperative and pertinently observed as under: –

“15. A word about the pleadings. Section 83 of the Act
mandates an election petition to contain a concise
statement of the material facts on which the petitioner
relies. The rules of pleadings enable a civil dispute being
adjudicated upon by a fair trial and reaching a just
decision. A civil trial, more so when it relates to an
election dispute, where the fate not only of the parties
arrayed before the court but also of the entire
constituency is at a stake, the game has to be played
with open cards and not like a game of chess or hide and
seek. An election petition must set out all material facts
1 (2002) 1 SCC 160
Page 13 of 30

wherefrom inferences vital to the success of the election
petitioner and enabling the court to grant the relief
prayed for by the petitioner can be drawn subject to the
averments being substantiated by cogent evidence.
Concise and specific pleadings setting out all relevant
material facts, and then cogent affirmative evidence
being adduced in support of such averments, are
indispensable to the success of an election petition. An
election petition, if allowed, results in avoiding an election
and nullifying the success of a returned candidate. It is a
serious remedy. Therefore, an election petition seeking
relief on a ground under Section 100(1)(d) of the Act,
must precisely allege all material facts on which the
petitioner relies in support of the plea that the result of
the election has been materially affected. Unfortunately
in the present case all such material facts and
circumstances are conspicuous by their absence.”

18. Similar principle of law has been laid down by the Supreme Court in

the matters of Jaipal Singh v. Sumitra Mahajan (Smt.) and

another 2, Anil Vasudev Salgaonkar v. Naresh Kushali

Shigaonkar 3 and Rajendra Kumar Meshram v. Vanshmani

Prasad Verma 4.

19. The Supreme Court in the matter of Sadashiv H. Patil v. Vithal D.

Teke 5 had clearly held that election law has to be construed strictly

and further held that a finding as to disqualification has the effect of

unseating a person from an elected office held by him pursuant to

his victory at the polls in accordance with the democratic procedure

of constituting a local authority. The Supreme Court also held that

the consequences befall not only him as an individual but also the

constituency represented by him which would cease to be

represented on account of his having been disqualified. The

Supreme Court further observed that looking at the penal

consequences flowing from an elected councillor being subjected to

2 (2004) 4 SCC 522
3 (2009) 9 SCC 310
4 (2016) 10 SCC 715
5 (2000) 8 SCC 82
Page 14 of 30

disqualification and its repercussion on the functioning of the local

body as also the city or township governed by the local body the

provisions have to be construed strictly.

20. Very recently, in the matter of Madiraju Venkata Ramana Raju v.

Peddireddigari Ramachandra Reddy and others 6, the Supreme

Court has held that “material facts” would mean all the basic facts

constituting the ingredients of the grounds stated in the election

petition in the context of relief to declare the election to be void.

21. Reverting to the facts of the case in light of the above-stated

statutory provisions and the principles of law laid down by Their

Lordships in the afore-cited cases, it is quite vivid that the election

petitioner in order to plead that the petitioner herein is not qualified

to contest the election from Ward No.23 of Municipal Corporation,

Korba, raised following pleadings in paragraph 6 of his election

petition and thereafter raised grounds in paragraphs 13 and 14

which are as under: –

6) यह कक गगैरययाकचिकयाकरयार क 01 कक दयारया वयारर क 23 अन्य कपिछड़या वगर
हकरत आरकक्षिर वयारर मम प्रत्ययाशश हकरत कदिए गयक नयाम कनदिरशन पित कक सयाथ कयाययारलय
रहसशलदियार ककोरबया, जजिलया ककोरबया कक दयारया रयाजिस्व प्रकरण क 7052 बश.

121/2013-14 कया अस्थयायश जियाकर प्रमयाण पित प्रस्रतर कररक हह ए स्वयय कको अन्य
कपिछड़या वगर हकरत आरकक्षिर सशट कया प्रत्ययाशश हकोनक बयाबर जिको प्रमयाण पित प्रस्रतर
ककयया गयया हगै। उक रयाजिस्व प्रकरण कमयायक कक आधयार पिर समस्र प्रकरण कक
प्रमयाकणर प्रकरजलकपि प्रयाप ककयक जियानक पिर उक रयाजिस्व प्रकरण कमयायक मम
गगैरययाकचिकयाकरयार क 01 कक नयाम पिर ककोई भश जियाकर प्रमयाण पित जियारश नहह ककयया
गयया हगै। उक रयाजिस्व प्रकरण कमयायक मम ककसश अब्दिल
त रफ़कक खयान नयामक
आवकदिक कक दयारया अपिनश सयरयान मतशरर र आफरशन कक नयाम पिर कनवयास प्रमयाण पित
एवय अब्दिल
त रफ़कक खयान आवकदिक कक नयाम पिर आमदिनश प्रमयाण पित प्रयाप ककयया
गयया हगै अथयारर अन्य कपिछड़या वगर हकरत आरकक्षिर सशट बयाबर गगैरययाकचिकयाकरयार क
01 कक दयारया फजिर रूपि सक अन्य कपिछड़या वगर कया जियाकर प्रमयाण पित प्रयाप कर स्वयय

6 (2018) 14 SCC 1
Page 15 of 30

कको प्रत्ययाशश बनयायक जियानक हकरत गगैरययाकचिकयाकरयार क 05 कक समक्षि दिस्रयावकजि प्रस्रतर
ककयक गयक हगै।

13) यह कक गगैरययाकचिकयाकरयार क 01 कक दयारया वयारर क 23 अन्य कपिछड़या वगर
हकरत आरकक्षिर वयारर मम प्रत्ययाशश हकरत कदिए गयक नयाम कनदिरशन पित कक सयाथ कयाययारलय
रहसशलदियार ककोरबया, जजिलया ककोरबया कक दयारया रयाजिस्व प्रकरण क 7052 बश.
121/2013-14 कया अस्थयायश जियाकर प्रमयाण पित प्रस्रतर कररक हह ए स्वयय कको अन्य
कपिछड़या वगर हकरत आरकक्षिर सशट कया प्रत्ययाशश हकोनक बयाबर जिको प्रमयाण पित प्रस्रतर
ककयया गयया हगै। उक रयाजिस्व प्रकरण कमयायक कक आधयार पिर समस्र प्रकरण कक
प्रमयाकणर प्रकरजलकपि कदिनयायक 16/01/2015 कको प्रयाप ककयक जियानक पिर उक रयाजिस्व
प्रकरण कमयायक मम गगैरययाकचिकयाकरयार क 01 कक नयाम पिर ककोई भश जियाकर प्रमयाण पित
जियारश नहह ककयया गयया हगै। उक रयाजिस्व प्रकरण कमयायक मम ककसश अब्दिल
त रफकक
खयान नयामक आवकदिक कक दयारया अपिनश सयरयान मतशरर र आफरशन कक नयाम पिर
कनवयास प्रमयाण पित एवय अब्दिल
त रफकक खयान आवकदिक कक नयाम पिर आमदिनश
प्रमयाण पित प्रयाप ककयया गयया हगै अथयारर अन्य कपिछड़या वगर हकरत आरकक्षिर सशट बयाबर
गगैरययाकचिकयाकरयार क 01 कक दयारया फजिर रूपि सक अन्य कपिछड़या वगर कया जियाकर प्रमयाण
पित प्रयाप कर स्वयय कको प्रत्ययाशश बनयायक जियानक हकरत गगैरययाकचिकयाकरयार क 05 कक समक्षि
दिस्रयावकजि प्रस्रतर ककयक गयक हगै।

14) यह कक सयामयाजजिक पिररसस्थकर कक प्रमयाणशकरण कक कवकनयमन
अजधकनयम 2013 कक अनतसयार समतकचिर सक्षिम अजधकयारश कक दयारया जियारश प्रमयाण
पित प्रस्रतर नहह ककयया गयया हगै इस अजधकनयम कक रहर आरकक्षिर सशट 2 ठ कक
अन्रगर र सयवगैधयाकनक कनकयाय मम कनवयारचिन प्रककयया कक दयारया नयामयायकन आरकक्षिर
सशट पिर इस अजधकनयम कक रहर जियारश सक्षिम अजधकयारश कक दयारया हश उपियतक
प्रमयाण पित प्रस्रतर ककयया जियानया आवश्यक हगै। इस प्रकयार सक गगैरययाकचिकयाकरयार क
01 कक दयारया कनवयारचिन मम गलर जियानकयारश एवय दिस्रयावकजि (जियाकर प्रमयाण पित) दिककर
अभ्यथर बनया हगै जजिसकक कयारण गगैरययाकचिकयाकरयार क 01 कया कनवयारचिन शशून्य
घकोकषिर ककयक जियानक यकोग्य हगै।

22. A careful perusal of the aforesaid averments made in the election

petition would show that the petitioner herein has filed provisional

social status certificate (Ex.P-3) issued by the Tahsildar, Korba in

Revenue Case No.7052 B.121/2013-14 certifying that he belongs

to OBC, which in effect and substance was not issued at all to him,

but against the said revenue case, domicile income certificates

were issued at the instance of one Abdul Rafique Khan to his
Page 16 of 30

daughter Afrin, therefore, the said certificate Ex.P-3 is forged

certificate and the said certificate has not been issued in

accordance with the Chhattisgarh Scheduled Castes, Scheduled

Tribes and Other Backward Classes (Regulation of Social Status

Certification) Rules, 2013, as such, he was not qualified to contest

for election on the post of Councillor of Ward No.23, Municipal

Corporation, Korba. The aforesaid perusal would further show that

it is not the case of the election petitioner / respondent No.1 that

the petitioner herein / returned candidate did not belong to OBC

and therefore he was not entitled and qualified to contest the seat

of Councillor reserved for OBC. In sum and substance, there is no

pleading that the petitioner was not the person belonging to OBC

and therefore not entitled to contest the election on the post of

Councillor of Municipal Corporation, Korba and it can be further

held that there is no challenge that he did not belong to the

category of OBC which Ward No.23 of Municipal Corporation,

Korba was reserved. The election petitioner simply thrown

challenge as to the manner in which the certificate was issued to

the petitioner herein vide Ex.P-3 that the revenue case mentioned

in the social status certificate issued to the petitioner was not

issued to him in the said revenue case number. The election

petitioner was required to plead material facts stating inter alia that

the respondent (therein) / returned candidate did not belong to OBC

for which the seat was reserved and therefore he was not qualified

to contest the election on the said post reserved for OBC category.

The election tribunal constituted under the Act of 1956 has to look

into the legality and validity of election on the ground enumerated in
Page 17 of 30

Section 441-B of the Act of 1956. Correctness or otherwise of the

certificate can certainly be gone into by the election tribunal so

constituted if the challenge of the election petitioner would be that

the returned candidate did not belong to OBC for which the seat

was reserved and therefore the certificate issued to the returned

candidate is forged and as such he was disqualified / not qualified

to contest the election of Councillor. As noticed herein-above, the

election petitioner simply thrown challenge to the certificate Ex.P-3

that it was not issued in accordance with law, as income domicile

certificates were issued to another person against the said revenue

case, therefore, the certificate is a forged one and he was not

entitled and qualified to question the election. As such, the election

petitioner omitted to state material facts that the returned candidate

did not belong to OBC and therefore he was not entitled to contest

election on the said post and Ex.P-3 – social status certificate

certifying provisionally that the returned candidate belongs to OBC

is forged, as such, the pleading qua the ground enumerated under

Section 441-B(1)(a) of the Act of 1956 is completely lacking in the

election petition.

23. In the matter of Ajay Kumar Poeia v. Shyam and others 7,

election of respondent from a reserved (SC) constituency was

challenged by appellant therein stating inter alia that respondent

had fraudulently obtained a caste certificate showing himself to be

belonging to SC and contested election from the reserved seat

although he was not a member of SC. Their Lordships of the

Supreme Court considering the election petition held that the

7 (2004) 1 SCC 429
Page 18 of 30

appellant in effect or substance did not raise any material fact that

the first respondent was not a member of the Scheduled Caste and

dismissed the appeal upholding the order of the High Court, and

observed as under: –

“4. A bare perusal of the documents contained in the
aforementioned paragraphs would show that the
appellant in effect or substance did not raise any material
fact that the first respondent herein was not a member of
the Scheduled Caste. Learned counsel appearing on
behalf of the appellant, however, submitted that the
averments contained in Ground 4(ii) contains the
requisite fact. The said paragraphs contains the grounds
for setting aside the improper acceptance of the
nomination papers filed by the first respondent and
cannot be treated to be statements containing the
requisite material facts, which, if proved, would entitle the
appellant in obtaining the reliefs sought for. Furthermore,
the said statements had been verified and purported to
be based on the legal advice. It may be true that for
improper verification of the material facts pleading in the
election petition, the same cannot be dismissed at the
threshold, but apart from the fact that the appellant
herein did not move any application for reverification of
the election petition, the averments contained in
paragraph 4(ii) do not satisfy the requirement of Section
81(1) of the Representation of the People Act, 1951 and
in that view of the matter, the said plea is not available to
the appellant.”

24. Falling back to the facts of the present case in light of the above-

stated legal proposition, it is quite vivid from the averments as well

as the grounds raised in the election petition that the election

petitioner has simply stated that the provisional social status

certificate Ex.P-3 issued to the petitioner against the said revenue

case was not issued to him at all and that certificate is forged and

his election be declared void which the election tribunal has

accepted and declared the election to be void.

25. In the considered opinion of this Court, the election petitioner

omitted to state and raise material facts and did not state any
Page 19 of 30

material facts that the returned candidate / petitioner herein was not

member of OBC therefore he was not qualified to contest election

on the post of Councillor, Municipal Corporation, Korba and

therefore no evidence could have been let-in by the election

petitioner to prove that the returned candidate was not qualified to

contest election on the post of Councillor and in absence of said

material facts and on mere challenge to the provisional caste

certificate issued to the petitioner, it cannot be held and declared

that he did not belong to OBC category and is not qualified to

contest the election. As such, the finding recorded by the learned

election tribunal on this count is contrary to facts and law and being

perverse is liable to be set-aside.

Re: Question No.2: –

26. Now, I have to consider the next question as to whether non-

disclosure of criminal antecedents by the returned candidate while

filing nomination paper and thereby improper acceptance of

nomination paper, has materially affected the result of election

warranting the setting aside of election of the returned candidate /

petitioner.

27. In order to judge the correctness of this plea, it would be

appropriate to notice the pleadings in the election petition.

Paragraphs 9 and 12 of the election petition are the key paragraphs

so far as the pleading with regard to this ground is concerned,

which read as follows: –

9) यह कक गगैरययाकचिकयाकरयार क 01 कक दयारया नयाम कनदिरशन पित मम गलर
जियानकयारश दिश गयश हगै क्यकोकक गगैरययाकचिकयाकरयार क 01 कक कवरुद्ध न्ययाययालय
शशमयान सत न्ययाययाधशश ककोरबया कक न्ययायलय मम दियासणरक प्रकरण क 46/2009
Page 20 of 30

अपिरयाध धयारया 147, 149, 307, 294, 506 (b) भयाररशय दिणर सयकहरया कया
प्रकरण जिको छ o ग o रयाज्य कवरुद्ध अब्दिल
त सतल्रयान वगगैरह कक नयाम सक पियजिशबध
हकोकर आरकोपि पिश्चियार सयाख्य हकरत लसमबर हगै। उक अपिरयाध क 1077/2008
कया अकभयकोग पित थयानया ककोरवयालश ककोरबया कक दयारया न्ययाययालय मम प्रस्रतर ककयया
गयया हगै और गगैरययाकचिकयाकरयार कक दयारया अपिनक शपिथ पित मम उक कववरण कको
छतपियायया गयया हगै। जिबकक उक लसमबर प्रकरण मम दिको यया दिको वषिर सक अजधक
कयारयावयास कक सजिया कया प्रयावधयान हगै।

12) यह कक गगैरययाकचिकयाकरयार क 01 कक दयारया नयाम कनदिरशन पित कक सयाथ
प्रयारूपि 3 ख (कनयम 25 क) अभ्यथर दयारया कदियया जियानक वयालया शपिथ पित जिको
नयाम कनदिरशन पित कक सयाथ ररटकनरग आकफसर कको पिकश ककयया जियानया हगै, भरकर
कदियया गयया। उक शपिथ पित कक कयकरकया 02 कक उपिकयायकरकया IV मम
गगैरययाकचिकयाकरयार क 01 कक ओर सक प्रस्रतर ककयया गयया हगै जजिसमक “यह कक मतझक
आजि सक छछः मयाह पिशूवर कनमनजलजखर प्रकरण मम अपिरयाधश बनयायया गयया हगै जजिसमक
न्ययाययालय दयारया चियाजिर लगयायया गयया हगै अथवया न्ययाययालय दयारया सयजयान जलयया
गयया हगै इसमम (उन्हश प्रकरणणों कया कववरण कदियया जियायक जजिसमम कयारयावयास कक
सजिया दिको यया दिको अजधक वषिर्षो कक दिश जिया सकरश हगै)” कक खणर मम
गगैरययाकचिकयाकरयार क 01 कक दयारया ककोई कववरण प्रस्रतर नहह ककयया गयया हगै
जजिसकक आधयार पिर गगैरययाकचिकयाकरयार क 01 कक दयारया अपिनक शपिथ पित मम ककसश
भश मयामलक कया ककोई कववरण प्रस्रतर न कररक हह ए यह बरयायया गयया हगै कक उसकक
कवरुद्ध ककसश भश न्ययाययालय मम ककसश भश मयामलक कया ककोई सयजयान नहह जलयया
जिया रहया हगै। जिबकक गगैरययाकचिकयाकरयार क 01 कक कवरुद्ध न्ययाययालय शशमयान सत
न्ययाययाधशश ककोरबया कक न्ययाययालय मम दियासणरक प्रकरण क 46/2009 अपिरयाध
धयारया 147, 149, 307, 294, 506 (b) भयाररशय दिणर सयकहरया कया प्रकरण
लसमबर हगै। उक अपिरयाध क 1077/2008 कया अकभयकोग पित थयानया ककोरवयालश
ककोरबया कक दयारया न्ययायलय मम प्रस्रतर ककयया गयया हगै और गगैरययाकचिकयाकरयार क 01
कक दयारया अपिनक शपिथ पित मम उक कववरण कको छतपियायया गयया हगै। जिबकक उक
लसमबर प्रकरण मम दिको यया दिको वषिर सक अजधक कयारयावयास कक सजिया कया प्रयावधयान
हगै। इस प्रकयार सक गगैरययाकचिकयाकरयार क 01 कक दयारया कनवयारचिन मम गलर
जियानकयारश दिककर अभ्यथर बनया हगै जजिसकक कयारण गगैरययाकचिकयाकरयार क 01 कक
दयारया कनवयारचिन मम गलर जियानकयारश दिककर अभ्यथर बनया हगै जजिसकक कयारण
गगैरययाकचिकयाकरयार क 01 कया कनवयारचिन शशून्य घकोकषिर ककयक जियानक यकोग्य हगै।

28. The learned District Judge after considering the evidence of the

parties recorded finding that the returned candidate / respondent

No.1 (therein) has suppressed the pendency of S.T.No.46/2009
Page 21 of 30

while filing nomination paper which amounts to corrupt practice and

therefore his election is liable to be declared as void.

29. The Supreme Court in the matter of Union of India v. Assn. for

Democratic Reforms 8 has held that it was incumbent upon every

candidate to give information about his assets and other affairs, as

every voter has a right to know about the details of the candidate

and such a requirement is also covered by Article 19(1)(a) of the

Constitution of India.

30. The Supreme Court in the matter of Krishnamoorthy v.

Sivakumar and others 9 while dealing with the provisions of

Section 33-A read with Column (5)(i) in Form No.26 of the

Representation of the People Act, 1951, considered the question as

to whether non-furnishing of the information while filing an affidavit

pertaining to the criminal cases, especially cases involving heinous

or serious crimes or relating to corruption or moral turpitude would

tantamount to corrupt practice, and held as under: –

“82. But the question is when an election petition is filed
before an Election Tribunal or the High Court, as the
case may be, questioning the election on the ground of
practising corrupt practice by the elected candidate on
the foundation that he has not fully disclosed the criminal
cases pending against him, as required under the Act
and the Rules and the affidavit that has been filed before
the Returning Officer is false and reflects total
suppression, whether such a ground would be
sustainable on the foundation of undue influence. We
may give an example at this stage. A candidate filing his
nomination paper while giving information swears an
affidavit and produces before the Returning Officer
stating that he has been involved in a case under Section
354 Indian Penal Code and does not say anything else
though cognizance has been taken or charges have
been framed for the offences under the Prevention of
Corruption Act, 1988 or offences pertaining to rape,
murder, dacoity, smuggling, land grabbing, local
8 (2002) 5 SCC 294
9 (2015) 3 SCC 467
Page 22 of 30

enactments like the Maharashtra Control of Organised
Crime Act, 1999, U.P. Control of Goondas Act, 1970,
embezzlement, attempt to murder or any other offence
which may come within the compartment of serious or
heinous offences or corruption or moral turpitude. It is
apt to note here that when an FIR is filed a person filing a
nomination paper may not be aware of lodgement of the
FIR but when cognizance is taken or charge is framed,
he is definitely aware of the said situation. It is within his
special knowledge. If the offences are not disclosed in
entirety, the electorate remain in total darkness about
such information. It can be stated with certitude that this
can definitely be called antecedents for the limited
purpose, that is, disclosure of information to be chosen
as a representative to an elected body.”

31. The Supreme Court in the aforesaid judgment Krishnamoorthy

(supra) has further clearly held that when the FIR is filed, a person

filing a nomination paper may not be aware of lodgment of the FIR,

but when the cognizance is taken or charge is framed, he is

definitely aware of the said situation of cognizance of offence

having been taken or framing of charges for offences against him.

It is further held that it is within the special knowledge of the

accused and if the offences are not disclosed in entirety, the

electorate remain in total darkness about such information. It is

further held that it can be stated with certitude that this can

definitely be called antecedents for the limited purpose, that is,

disclosure of information to be chosen as a representative to an

elected body. In para 86 of the aforesaid decision, it was held that

the requirement of a disclosure especially the criminal antecedents,

enables a voter to have an informed and instructed choice. If a

voter is denied of the acquaintance to the information and deprived

of the condition to be apprised of the entire gamut of criminal

antecedents relating to heinous or serious offences or offences of

corruption or moral turpitude, the exercise of electoral right would
Page 23 of 30

not be an advised one. He will be exercising his franchise with the

misinformed mind and his fundamental right to know also gets

nullified. The Supreme Court has also held that while filing the

nomination form, if the requisite information, as has been

highlighted, relating to criminal antecedents, is not given,

indubitably, there is an attempt to suppress, effort to misguide, and

keep the people in dark and this attempt undeniably and

undisputedly is undue influence and would amount to corrupt

practice and the election is liable to be declared as null and void

under Section 100(1)(b) of the Representation of the People Act,

1951.

32. The election for the post of Councillor of Municipal Corporation is

governed by the Act of 1956 read with the Chhattisgarh

Nagarpalika Nirvachan Niyam, 1994 (for short, ‘the Rules of 1994’).

As noticed, Rule 25-A of the Rules of 1994 was amended with

effect from 17-8-2004. It states as under: –

Rule 25-A “Under the provision of sub-rule (1) of Rule
25, every candidate who is submitting his nomination
for the election of Councillor of Chairperson of Nagar
Panchayat before the returning officer shall necessarily
enclose a self-declaration in form 3 ‘A’ and every
candidate who is submitting his nomination before the
returning officer for the election of Mayor of Councillor
of any Municipal Corporation of for President of
Councillor of any Municipal Council shall necessarily
enclose an affidavit sworn before a Magistrate of the
first class or a Notary in form 3’B’ ”

The above-stated inserted Rule obliges the candidate submitting

his nomination paper for the election of Councillor or Chairperson of

Nagar Panchayat to enclose a self-declaration in Form 3A and also

to submit an affidavit sworn before a Magistrate of First Class or a

Notary in Form III-B. Clause (iv) of Form III-B as per rules newly
Page 24 of 30

inserted states as under: –

IV – ;g fd eqs vkt ls 06 ekg iwoZ fuEufyf[kr izdj.kksa esa vijk/kh cuk;k
x;k gS ftlesa U;k;ky; }kjk pktZ yxk;k x;k gS] vFkok U;k;ky; }kjk
laku fy;k x;k gSA blesa ¼mUgha izdj.kksa dk fooj.k fn;k tk;s ftlesa
dkjkokl dh ltk 2 ;k 2 ls vf/kd o”kkZsa dh nh tk ldrh gSA ½ ¼blls iwoZ
dafMdk I ,oa II ds izdj.ksa dks fn;k tk;sA

33. Thus, Rule 25-A of the Rules of 1994 only requires filing of an

affidavit in Form III-B. The Rule itself does not require disclosure of

criminal cases in which either charges have been framed or

cognizance of offence has been taken, it is only prescribed in Form

III-B envisaged by Rule 25-A of the Rules of 1994. As such, neither

the Act of 1961 nor the Rules of 1994 governing the election

specifically provides for disclosure of criminal cases in which

charges have been framed / or cognizance of offences has been

taken.

34. The Act of 1956 has not been amended inserting the provision akin

to or similar to Section 33A(1)(i) of the Representation of the

People Act, 1951 (for short, ‘the Act of 1951’) which obliges the

candidate to furnish information in his nomination paper delivered

under sub-section (1) of Section 33 of the Act of 1951, as to

whether he is accused of any offence punishable with imprisonment

for two years or more in a pending case in which charges have

been framed by the court of competent jurisdiction. Section 33A(1)

of the Act of 1951 provides as under: –

“33A. Right to information.–(1) A candidate shall,
apart from any information which he is required to
furnish, under this Act or the rules made thereunder, in
his nomination paper delivered under sub-section (1) or
Section 33, also furnish the information as to whether–

Page 25 of 30

(i) he is 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 of
competent jurisdiction;

(ii) xxx xxx xxx”

35. The consequence of not complying with the provision contained in

Section 33A(1)(i) of the Act of 1951 has been provided in Section

125A of the said Act of 1951 which states as under: –

“125A. Penalty for filing false affidavit, etc.–A
candidate who himself or through his proposer, with
intent to be elected in an election,–

(i) fails to furnish information 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 information,

in his nomination 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.”

36. As such, there was no such enabling provision mandated by

competent legislature either under the Act of 1956 or under the

Rules of 1994 obliging the candidate submitting nomination paper

for the post of Councillor, Municipal Corporation to disclose the

pendency of criminal cases in which charges have been framed as

mandated in Section 33-A(1)(i) of the Act of 1951 except in Form

III-B prescribed under Rule 25-A of the Rules of 1994, as the

candidate is only required to disclose or furnish information in

shape of affidavit under the Act of 1956 and the rules made

thereunder governing election or nor the consequences have been

provided for not furnishing the required information / criminal
Page 26 of 30

antecedents while filing nomination paper at par with the provisions

contained in Section 125A of the Act of 1951. Therefore, at the time

of filing nomination paper under the Rules of 1994, the petitioner

herein was not obliged to disclose the said information of pendency

of criminal cases in which charges have been framed against him

or cognizance has been taken for the offences prescribing

punishment for two years or more, in absence of legislative

sanction mandating disclosure of such information in the Act of

1956 and the rules made thereunder, and for the alleged non-

disclosure, his election on the post of Councillor could not have

been set-aside by the election tribunal.

37. The effect of non-disclosure of criminal antecedents / pendency of

criminal case was considered by this Court in Civil Revision

No.10/2017 (Isup Khan v. Narsingh Dewangan and others) decided

on 14-12-2018 against which special leave petition was filed before

the Supreme Court bearing Special Leave to Appeal (C)

No.2917/2019 (Narsingh Dewangan v. Isup Khan and others) and

which was dismissed on 8-2-2019.

38. The election petitioner / respondent No.1 has also failed to plead

and establish that result of returned candidate has been materially

affected due to such improper acceptance of nomination paper as

prescribed in Section 441-B(1)(d)(i) of the Act of 1956 in order to

establish the ground either by improper acceptance of nomination

paper or by non-compliance with the provisions of this Act or of any

rules made thereunder. (See Vashist Narain Sharma v. Dev

Chandra and others 10, Paokai Haokip v. Rishang and others 11,

10 AIR 1954 SC 513
11 AIR 1969 SC 663
Page 27 of 30

Tek Chand v. Dile Ram 12, Santosh Yadav v. Narender Singh 13,

Mangani Lal Mandal v. Bishnu Deo Bhandari 14, Rajendra

Kumar Meshram v. Vanshmani Prasad Verma and another 15

and Sri. Mairembam Prithviraj alias Prithviraj Singh v. Sri.

Pukhrem Sharatchandra Singh 16.)

39. As such, the election petitioner / respondent No.1 herein has failed

to plead and establish non-compliance by the returned candidate

with the provisions of the Act of 1956 or the rules made under the

Act of 1956 as the grounds enumerated under Section 441-B(1) of

the Act of 1956 for declaring election to be void.

40. The above-stated fact is clear from the fact that competent

legislature noticed the above-stated lacuna in the Rules of 1994 at

par with Section 33A of the Act of 1951 and amended the Rules

with effect from 26-3-2018. Amended Rule 25-A of the Rules of

1994 provides as under: –

“25-A. Affidavit to be filed along with nomination
paper.–(1) Under the provisions of sub-rule (1) of rule
25, every candidate (and concerned mayor/president in
case of recall from his post), who is submitting his
nomination for election of Mayor or Councilor of
Municipal Corporation or President or Councilor of
Municipal Council or President or Councilor of Nagar
Panchayat before the returning officer shall, necessarily
enclose an affidavit sworn before Magistrate of first class
or notary in Form 3-A.

(2) Every candidate shall declare information relating to,

(i) Whether he is convicted/discharged/acquitted in any
criminal case in the past or he is accused in any pending
criminal case? If so, the details thereof;

12 AIR 2001 SC 905
13 AIR 2002 SC 241
14 AIR 2012 SC 1094
15 AIR 2016 SC 4700
16 AIR 2016 SC 5087
Page 28 of 30

(ii) The assets (immovable, movable, bank balance etc.)
of a candidate and of his/her spouse and that of
dependants, which he and his/her spouse and
dependent children are jointly or separately owns or his
beneficiary;

(iii) Liabilities, if any, towards any public financial
institution;

(iv) Dues, if any, towards the Central Government or
State Government;

(v) The educational qualifications of the candidate;

in an affidavit, in such format and in such manner, as
may be prescribed by the State Election Commission,
while filing his nomination paper before Returning Officer.

(3) If affidavit is not enclosed then nomination paper shall
be rejected.

(4) to (6) xxx xxx xxx”

41. The above-stated statutory amendment incorporated in the Rules

with effect from 26-3-2018 mandating disclosure of criminal

antecedents / pendency of criminal case, would show that there

was no such legal requirement in the Act / Rules on the date of

election in question.

42. Finally, I am of the considered opinion that the election petitioner /

respondent No.1 herein has failed to plead the material facts with

regard to that the returned candidate did not belong to OBC by

raising appropriate pleading and therefore no evidence has been let

in by the election petitioner to prove that the returned candidate

was not the person belonging to OBC and he was not entitled and

qualified to contest election being not a qualified candidate for

contesting election on the reserved seat – Ward No.23 of Municipal

Corporation, Korba, except throwing challenge to the manner in

which the social status certificate (Ex.P-3) was issued to him. The

learned election tribunal exceeded its jurisdiction by setting aside
Page 29 of 30

the election by merely holding that the social status certificate Ex.P-

3 was not issued to the petitioner herein in accordance with law. In

order to declare the election to be void, the learned election tribunal

ought to have reached to a finding that the petitioner did not belong

to OBC and therefore he was not qualified to contest election on

the post of Councillor reserved for OBC. Therefore, the finding on

this issue recorded by the election tribunal deserves to be set-

aside.

43. Similarly, for non-disclosure of criminal case, the election of the

petitioner / returned candidate has been declared void. This finding

is also not made out as the Rules of 1994 do not mandate the

returned candidate to disclose the criminal antecedents at the time

when the nomination paper was filed by the returned candidate as

per the Rules of 1994 as on that day applicable as the Rules oblige

the candidate to submit nomination paper in the election of

Councillor to enclose a declaration in Form 3 ‘A’ and also submit

affidavit sworn before a Magistrate in Form 3 ‘B’, which are only

directory in nature. The specific rule requiring disclosure of criminal

antecedents / pendency of criminal case came into force with effect

from 26-3-2018. There is neither pleading nor evidence on record,

as required statutorily, to hold that on account of improper

acceptance of nomination paper, election of the returned candidate

has been materially affected, which is absolutely necessary for

declaring the election void on the ground of improper acceptance of

nomination paper.

44. As a fallout and consequence of the aforesaid discussion, the

judgment and order of the election tribunal declaring the election of
Page 30 of 30

the petitioner to be void, deserves to be and is accordingly set

aside. Consequently, the petitioner is eligible to assume the office

and function as Councillor of Ward No.23 of Municipal Corporation,

Korba, forthwith.

45. The revision petition is allowed to the extent sketched herein-

above. No order as to cost(s).

Sd/-

(Sanjay K. Agrawal)
Judge
Soma

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