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Isup Khan vs Narsingh Dewangan on 14 December, 2018

Page 1 of 39

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Civil Revision No. 10 of 2017

Order reserved on: 31-10-2018

Order delivered on: 14-12-2018

Isup Khan, S/o Peer Khan, aged about 27 years, R/o Village
Panchayat Bilaigarh, P.S. and Tahsil Bilaigarh, District Baloda Bazar
– Bhatapara (C.G.)
(Respondent No. 1 in election petition)
— Applicant

Versus
1. Narsingh Dewangan, S/o Panchram Dewangan, aged about 51
years, R/o Village Panchayat Bilaigarh, P.S. and Tahsil Bilaigarh,
District Baloda Bazar – Bhatapara (C.G.)
(Petitioner in election petition)

2. Kailashnath Kahar, S/o Bhagwan Prasad Kahar, aged about 34
years.

3. Naresh Kumar, S/o Ishwari Prasad Dewangan, aged about 29
years.

The respondent No.2 and 3 are R/o Village Panchayat Bilaigarh,
P.S. and Tahsil Bilaigarh, District Baloda Bazar – Bhatapara (C.G.)
(Respondent No. 2 and 3 in election petition)

4. Returning Officer, Nagar Panchayat Bilaigarh, District Baloda Bazar
– Bhatapara (C.G.)
(Respondent No.4 in election petition)
— Respondents

For Applicant: Mr. Sandeep Dubey, Advocate.
For Respondent No.1: Dr. N.K. Shukla, Senior Advocate with Mr. Anil
Singh Rajput, Advocate.
For Respondent No.4 / State: –
Mr. Arun Sao, Dy. Advocate General.

Hon’ble Shri Justice Sanjay K. Agrawal

C.A.V Order

1. Invoking revisional jurisdiction of this Court under Section 26(2) of

the Chhattisgarh Municipalities Act, 1961 (for short, ‘the Act of

1961’) and calling in question legality and validity of the impugned
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order dated 24-1-2017, this revision petition has been filed by which

the learned District Judge has set aside the petitioner’s election on

the post of President, Nagar Panchayat, Bilaigarh held on 4-1-2015

and further declared respondent No.1 herein to be elected

candidate on the said post by granting that election petition filed by

him.

2. Essential facts necessary for the adjudication of this revision

petition are as under:-

2.1) In an election held on 4-1-2015 for the post of Nagar

Panchayat Bilaigarh, the petitioner as well as respondents No.1 to 3

contested the election and the petitioner herein was declared

elected for the said post. Respondent No.1 herein questioned the

said election of the petitioner on the said post by filing election

petition under Section 20 of the Act of 1961 read with the

Chhattisgarh Nagar Palika Election Rules, 1994. It was pleaded by

respondent No.1 herein that counting of votes in the said election

was not done in accordance with law. It was further pleaded that

against the petitioner/returned candidate, in Police Station,

Bilaigarh, Crime No.324/13 for offences under Sections 186, 353,

332, 294, 323, 506, 427 read with Section 34 of the IPC and

offence under Section 4 of the Chhattisgarh Chikitsa Sansthan

Adhiniyam, 2010 has been registered and charge-sheet has been

filed, in the court of Judicial Magistrate First Class, Bilaigarh which

is pending consideration and out of which in offences under

Sections 353, 332, 506 427 of the IPC, punishment of two years

and more than two years is prescribed, and the said criminal case is

pending consideration before the said court prior to six months from
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the date of filing nomination paper by respondent No.1/returned

candidate and respondent No.1, knowing full well has not disclosed

the said fact in his nomination paper and therefore his nomination

paper has wrongly / improperly been accepted by which result of

election of Nagar Panchayat has affected, which is liable to be

declared void as respondent No.1 was obliged to declare the

pendency of said criminal case in Form-3, paragraph-4 as per Rule

25-A of the Rules of 1994 and the petitioner could not take the said

objection of pendency of criminal case against the petitioner at the

time of filing of nomination paper, as he came to know about the

said fact only on 13-1-2015. It was also pleaded that the post of

President, Nagar Panchayat, Bilaigarh was reserved for OBC

candidate and the petitioner belongs to General Category as such,

he was not entitled to contest the election for the post of President

so reserved for OBC candidate. It was finally pleaded that due to

improper acceptance of nomination paper of the petitioner, his

election result has affected and he has received less number of

votes, otherwise all the votes thrown/cast in favour of the petitioner

must have cast in his favour, therefore he also be declared elected

candidate by declaring the election of the petitioner to be void.

2.2) The petitioner herein filed his written statement opposing and

denying the allegations made in the election petition and submitted

that his nomination paper was rightly accepted by the returning

officer and election petition deserves to be dismissed with cost.

2.3) The learned District Judge, on the basis of pleadings of the

parties framed following three issues:
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dz0 okn iz’u fu”d”kZ

1- D;k uxjh; fudk; pquko o”kZ 2014 ds fnukWad **gkWa**
[email protected]@2015 dks] fjVfuZax vkWfQlj fcykbZx+ }
kjk ?kksf”kr ifj.kke ds vuqlkj] uxj iapk;r
fcykbZx+ ds v/;{k in gsrq mRrjoknh dzekad1
dks fot;h ?kksf”kr djus laca/kh vkns’k voS/k ,oa
‘kwU; gS
2- D;k uxj iapk;r fcykbZx+ ds v/;{k in gsrq vkns’k dh
oknh ujflag nsokaxu fot;h ?kksf”kr fd;s tkus dh dafMdk 26
vkKfIr izkIr djus dk vf/kdkjh gS ds vuqlkjA
3- lgk;rk ,oa okn O;; vkns’k dh
dafMdk 26
ds vuqlkj
;kfpdk
fujkd`rA

2.4) After appreciating oral and documentary evidence on

record, the learned District Judge allowed the election petition

holding that the petitioner/returned candidate failed to mention

pendency of criminal case in the nomination paper submitted

before the returning officer for the post of President – Nagar

Panchayat, Bilaigarh, and thereby committed corrupt practice

(undue influence) by which the result of election has materially

affected, and declared the election of the petitioner on post of

President void and further declared respondent No.1/election

petitioner to be elected candidate for the remaining period of the

said post of President, Nagar Panchayat, Bilaigarh.

3. Feeling dissatisfied and aggrieved by the said declaration of

setting aside his election, the petitioner herein has preferred this

revision petition questioning the order passed by the learned

District Judge, in which cross objection has also been preferred

by respondent No.1/returned candidate.

4. Mr. Sandeep Dubey, learned counsel appearing for the

petitioner / returned candidate, would submit as under:-
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(i) That the learned District Judge was absolutely unjustified in

holding that the petitioner has committed corrupt practice in

non-disclosing the pendency of criminal case against him

as required by Rule 25-A of the Rules of 1994. Elaborating

his submission, he would submit that the election

petitioner / respondent No.1 did not even allege by pleading

the material fact that in the alleged case, charge/charges

were framed against the petitioner six months prior to the

date of delivery of nomination paper as per rule in respect

of offence/offences alleged against him along with specific

date of framing of charge/charges by the court of

competent jurisdiction and the petitioner failed to disclose

or conceal the above-stated material fact in his affidavit in

Form-3 delivered along with nomination paper under the

Act of 1961 read with the Rules of 1994 to the returning

officer. Even otherwise, at the time of election, there was

no provision either in the Act of 1961 or rules made

thereunder mandating disclosure of criminal case pending

against a candidate.

(ii) That the election petitioner/respondent No.1 has failed to

plead and establish that due to alleged improper

acceptance of nomination paper of the petitioner, the

election of the returned candidate has been materially

affected.

(iii)That, the learned District Judge is absolutely unjustified in

declaring the election petitioner to be elected in breach of
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law laid down by the Supreme Court in this regard in the

matter of Prakash Khandre v. Dr Vijay Kumar Khandre

and others 1.

(iv)That the learned District Judge has made-out a new case,

by holding the petitioner guilty of corrupt practice, as there

is no pleading of corrupt practice in the election petition

filed by the election petitioner and consequently no issue

was framed in that regard, and thereby no issue of corrupt

practice was tried and no evidence was led, therefore, the

finding recorded that the petitioner is guilty of corrupt

practice, is absolutely without jurisdiction and without

authority of law.

5. Dr. N.K. Shukla, learned Senior Counsel ably assisted by Mr. Anil

Singh Rajput, learned counsel appearing on behalf of respondent

No.1, would support the impugned order declaring the election of

the petitioner to be void and declaring respondent No.1 to be

elected candidate for the remaining period. He would further

submit that cross-objection preferred by respondent No.1 be

allowed. He would reply upon the decision of the Supreme Court

in the matter of Sri Mairembam Prithviraj alias Prithviraj

Singh v. Sri. Pukhrem Sharatchandra Singh 2.

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

rival submissions made herein-above and went through the

record with utmost circumspection.

7. In order to adjudicate the plea raised at the Bar, it would be
1 (2002) 5 SCC 568
2 AIR 2016 SC 5087
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appropriate to notice the provisions contained in sub-sections (4)

and (5) of Section 20 of the Act of 1961, which state as under:-

“20. Election petition.- (1) to (3) *** *** ***

(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; and

(b) any other candidate against whom allegations of
any corrupt practice 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) set forth with sufficient particulars, the ground or
grounds on which the election or [nomination] 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 22 of the Act of 1961 provides for grounds for declaring

election to be void, which states as under:-

“22. Grounds for declaring election or [nomination]
to be void.- (1) Subject to the provisions of sub-
section (2) if the Judge is of the opinion –

(a) *** *** ***

(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;

(c) *** *** ***

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

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

(ii) *** *** ***

(iii) by the non-compliance with the provisions of this
Act or of any rules or orders made thereunder save
the rules framed under (section 32) insofar as they
relate to preparation and revision of list of voters;

he shall declare the election or [nomination] of the
returned candidate to be void.

(2) *** *** ***”

9. Section 28(ii) provides for corrupt practice (undue influence),

which states as under:-

“28. Corrupt practices.- The following shall be
deemed to be corrupt practices for the purpose of this
Act:-

(i) *** *** ***

(ii) Undue influence as defined in clause (2) of
Section 123 of the Representation of the People Act,
1951 (43 of 1951);”

10. The Rules of 1994 was 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’ ”

11. 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-
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rule (2) provides that every nomination paper presented under

Rule 25 shall be in Form-3.

12. 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
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) *** *** ***”

13. 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-
Page 10 of 39

(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
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
Page 11 of 39

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.

(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.”

14. 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.

15. The election petition filed by respondent No.1 questioning the

election petition was mainly on the ground enumerated under

Section 22(1)(d)(i) of the Act of 1961 that the nomination of the

petitioner has improperly been accepted and thereby the result of

the election insofar as it concerns to respondent No.1 / election

petitioner has been materially affected and therefore the election

of the returned candidate/petitioner deserves to be declared void

and he be declared as returned candidate.

16. Respondent No.1/election petitioner in paragraph 12 and 13 of
Page 12 of 39

his election petition has averred that against the petitioner

offences under Sections 186, 353, 332, 494, 506, 427 read with

Section 34 of the IPC and offence under Section 4 of the

Chhattisgarh Chikitsa Sansthan Adhiniyam, 2010 has been

registered in Police Station Bilaigarh and charge-sheet has been

filed in the court of Judicial Magistrate First Class, Bilaigarh on

18-9-2013 and Criminal Case No.244/2013 is pending

consideration before that court and the petitioner being fully

aware of that pendency of criminal case, did not disclose the said

fact in the nomination paper filed before the Returning Officer

and his nomination has improperly been accepted by the

Returning Officer and thus, result of the election has been

affected by said improper acceptance of nomination paper of the

petitioner, as such the election of the petitioner is liable to be

declared void. Paragraphs 12 and 13 of the election petition are

extracted herein for the sake of convenience:-

“12- ;g fd mRrjoknh dza- 1 blqi [kku ,oa vU; ds
fo:) vkj{kh dsUnz fcykbZx+ }kjk vijk/k dzekad [email protected]
esa Hkk-n-lafgrk dh /kkjk 186] 353] 332] 294] 323] 506]
[email protected] rFkk N-x- fpfdRlk laLFkku vf/kfu;e] 2010
dh /kkjk 04 ds rgr vijk/k iathc) dj vfHk;ksx i
ekuuh; U;k;ky; U;kf;d eftLVªsV izFke Js.kh fcykbZx+
ds le{k fnukad 18-09-2013 dks izLrqr fd;k x;k gS
ftldk nk-iz-dz- [email protected] gS tks fd orZeku esa fopkjk/khu
gSA

13- ;g fd mRrjoknh dza- 01 ds fo:) mDr iathc)
vijk/k esa ls Hkk-n-lafgrk dh /kkjk 353] 332] 506 rFkk 427
esa 2 o”kZ rFkk 2 o”kZ ls vf/kd rd dh dkjkokl dh ltk
dk izko/kku gS rFkk mRrjoknh blqi [kku }kjk izLrqr uke
Page 13 of 39

funsZ’ku i fnukad 15-12-2014 ds Ng ekg ds iwoZ ls mDr
nkf.Md izdj.k U;kf;d eftLVªsV izFke Js.kh fcykbZx+
ftyk cykSnkcktkjHkkVkikjk (N-x-) ds le{k fopkjk/khu
gS ftldk Kku gksrs gq, Hkh blqi [kku }kjk vius ?kks”k.kk
i esa mDr rF; dks izxV ugha fd;k gSA izR;FkhZ dz- 01
dk ukekadu xyr :i ls Lohdkj fd;k x;k gS ftlesa
pquko dk urhtk izHkkfor gqvk gS bl dkj.k izR;FkhZ dza- 01
dk fuokZpu ‘kwU;or ?kksf”kr fd;k tkuk vko’;d gSA”

17. The affidavit filed by the petitioner along with his nomination

paper in accordance with Rule 25-A of the Rules of 1994 states

as under:-

iz:i3 *[k*
(fu;e 25d ns[ksa)
vH;FkhZ }kjk fn;k tkus okyk ‘kiFk i
tks uke funsZ’ku i ds lkFk fjVfuZax vkWfQlj dks is’k fd;k tkuk gS

‘kiFki

eSa—– blqi [kka —- [email protected]@iRuh—— ihj[kku—— vk;q—–24—
fuoklh—fcykbZx+–rglhy—fcykbZx+—-ftyk—cykSnkcktkj—NRrhlx+
esa uxjikfyd [email protected] ifj”kn~——fcykbZx+—–ftyk——
cykSnkcktkj esa [email protected]/;{k vFkok okMZ dzekad ——x—– ds ik”kZn
in ds pquko ds fy, ukekadu i is’k dj jgk gWawA

[email protected] eS lR;fu”BkiwoZd esa izfrKku djrs gq, ,rn}kjk ‘kiFk ysrk gWaw%

I. fd eqs iwoZ esa ltk [email protected] gqbZ gSA————–x—————–
II. fd eqs fuEufyf[kr [email protected] esa ltk gqbZ gS %
(1) izdj.k dzekad——x—–Fkkuk—–x—–ftyk——jkT;——x—–
(2) lacaf/kr vf/kfu;e——x—–dh /kkjk———————x——————-
(3) vijk/k dk laf{kIr fooj.k ftlesa ltk gqbZ gS——
x————————————————————————————————–
————–

(4) ltk fn;s tkus dk fnukad—————————–x———————–
(5) U;k;ky; dk uke——x—–ftlds }kjk Lo?kks”k.kkdrkZ dks
ltk nh xbZ gSA
(6) ltk dk fooj.k——x—–(vof/k dk fooj.k ftruh vof/k ds
fy, dkjkxkj dk n.M fn;k x;k rFkk vFkZn.M dk fooj.k
tks vkjksfir fd;k x;kA)
(7) dkjkxkj ls foeqfDr dh rkjh[[email protected][ksa ————–x————-
(8) [email protected]{k.k dk fooj.k tks mi;qZDr ltk ds fo:)
dh xbZA —————————————x——————————————
(9) [email protected]{k.k D;k ifj.kke gqvk bldk fooj.kA ————
Page 14 of 39

———————————————–x—————————————-

III.fd eSa fuEufyf[kr izdj.kksa esa iwoZ esa [email protected]”keqDr gqvk
gwWaA

(1) izdj.k dzekad————————[email protected]———————————–
(2) lacaf/kr vf/kfu;e—ifjokn—-dh /kkjk————–500—————-
(3) U;k;ky; dk uke ftlds }kjk eqs [email protected]”keqDr
fd;k x;k gS—–U;k;ky;Jherh fiz;adk vxzoky] U;kf;d
eftLVªsV izFke Js.kh] fcykbZx+] c- cktkjHkkVkikjk———-
(4) [email protected]”keqDr gksus dk fnukad———-29-09-2014———-
(5) [email protected]”keqDr ds fy;s dh xbZ [email protected]{k.k dk
fooj.k ————————————————————————————–

(6) [email protected] dk D;k ifj.kke gqvk bldk
fooj.k————————————-nks”keqDr————————————-

IV. ;g fd eqs vkt ls 06 ekg iwoZ fuEufyf[kr izdj.kksa esa vijk/kh
cuk;k x;k gSA ftlesa U;k;ky; }kjk pktZ yxk;k x;k gS
vFkok U;k;ky; }kjk laKku fy;k x;k gSA blesa (mUgha izdj.kksa
dk fooj.k fn;k tk;s ftlesa dkjkokl dh ltk 2 ;k 2 ls
vf/kd o”kksaZ dh nh tk ldrh gSA) {blesa iwoZ dafMdk I ,oa II ds
izdj.kksa dks u fn;k tk;sA} xxx xxx xxx

V. ;g fd esjh Lo;a dh [email protected] vkSj vkfJrksa dh py] vpy
rFkk cSad tek dk fooj.k ;g gS%
{d} py laifRr (la;qDr LokfeRo dh laifRr ds laca/k esa ?
kks”k.kkdrkZ }kjk viuk fgLlk Li”V :i ls crk;k tk;s ,oa vU;
LokfeRo/kkfj;ksa dk uke] mez] O;olk; rFkk ‘kiFkdrkZ dk muls
laca/k esa Li”V :i ls crk;k tk;sA) vkfJrksa ls vk’k; ;g gS fd
tks eq[; :i ls ‘kiFkdrkZ dh vk; ij vkfJr gSA xxx xxx
dz- fooj.k Lo;a [email protected] vkfJr1 vkfJr2 vkfJr3
dk uke dk uke dk uke dk uke
1- udn 1]00]0000 x x x x
0
2- cSad] foRrh; laLFkkvksa 2]0000
vkSj xSj cSfdax foRrh; 0
daifu;ksa esa tek x x x x
/kujkf’k
3- daifu;ksa ds ckaM]
fMcsapj vkSj ‘ks;j x x x x
4- vU; foRrh; lk/ku ih-

ih-,Q-] Mkd?kj tek x x x x
;kstuk] ,y-vkbZ-lh-
ikfylh vkfn
5- eksVj okgu (d`i;k dkj gksUMk
flVh x x x x
daiuh ekWMy vkfn dk
1]50]0000
fooj.k nsosa) 0
6- xgusa (d`i;k out rFkk
x x x x X
dher dk fooj.k nsa )
7- vU; ifjlaifRr;ksa tSls
nkos dh [email protected];kt x
Page 15 of 39

(lwphc) daifu;ksa ds [email protected]@’ks;j ds laca/k esa LVkQ
,Dlpsat dk orZeku cktkj ewY; crk;k tk;s xSj lwphc)
daifu;ksa ds [email protected]@’ks;j dk ewY; [kkrs ds vuqlkj fn;k
tk;sA)
{[k} vpy laifRr;ksa dk fooj.k % (la;qDr LokfeRo dh laifRr
ds laca/k esa la;qDr LokfeRo dk foLrkj ls mYys[k fd;k tkosA
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Page 16 of 39

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(viuh Ldwy rFkk fo’ofo Lrj dh f’k{kk dk mYys[k djsa)
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o”kZ izek.k [email protected]/k [email protected] f’k{[email protected]’ofo|
ky;

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18. Respondent No.1/election petitioner had filed the election petition

stating that the petitioner/returned candidate failed to disclose

pending criminal case under Crime No.324/2013 for offence under

Sections 186, 353, 332, 294, 323, 506 427 read with Section 34
Page 17 of 39

of the IPC and Section 4 of the Act of 2010 stating that offence

under Sections 353, 332, 506 427 of the IPC are punishable with

sentence of imprisonment for two years or more than two years and

which was pending consideration on the date of filing nomination

paper and in which the petitioner / returned candidate was standing

as an accused in respect of the offences and that he was required

to be disclosed in the nomination paper in Form-III as per Rule 25-A

of the Rules of 1994 and as such, non-disclosure of certain material

information as required in Form-III, column (iv) of the affidavit

results in failure to comply with the Rules of 1994 and therefore the

nomination paper of the petitioner has improperly been accepted by

which the result of election has been materially affected.

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

Democratic Reforms 3 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.

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

Sivakumar and others 4 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: -

3 (2002) 5 SCC 294
4 (2015) 3 SCC 467
Page 18 of 39

"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
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."

21. 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
Page 19 of 39

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

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.

22. This would bring me to the grounds raised in the election petition

filed by respondent No.1 herein / election petitioner before the

learned District Judge. The election petition curiously did not

indicate under which of the grounds the election petition has been

filed questioning the election of the returned candidate. It simply

states that since criminal case pertaining to the offences as

indicated in the aforesaid paragraphs punishable for two years or
Page 20 of 39

more than two years of imprisonment is pending six months prior to

the date of nomination i.e. 16-12-2014 before the Judicial

Magistrate First Class, Bilaigarh and that was not disclosed by the

petitioner herein in his nomination paper and his nomination paper

has improperly been accepted and thus, result of the election has

been affected, therefore, the election be declared void and he be

declared as returned candidate. This averment in the election

petition has been found favour with by the learned District Judge by

holding that non-disclosure of pending criminal case amounts to

undue influence which is corrupt practice committed by the

petitioner / returned candidate under Section 22(1)(b) read with

Section 28(ii) of the Act of 1961 and therefore declared the election

of the petitioner to be void.

23. The election petition was not filed on the ground mentioned in

Section 22(1)(b) of the Act of 1961 that the petitioner is guilty of

corrupt practice of undue influence as defined in Section 28(i) of the

Act of 1961, as there is no allegation or whisper of undue influence

(corrupt practice) in the entire election petition so filed before the

Court. It appears from the perusal of the election petition that

improper acceptance of nomination paper as envisaged in Section

22(1)(d)(i) of the Act of 1961 is a ground raised by the election

petitioner before the Tribunal and it can also be said that Section

22(1)(d)(iii) i.e. by non-compliance with Rule 25-A of the Rules of

1994, is the ground raised in the election petition for declaring the

election of the returned candidate to be void. Rule 25-A of the

Rules of 1994 only mandates submission of affidavit in the

prescribed form. It nowhere mandates disclosure of pendency of
Page 21 of 39

criminal case at the time of filing nomination paper by candidate(s)

contesting election in which either cognizance has been taken or

charges have been framed, only Form III-B prescribed by Rule 25-A

has a column requiring a candidate to disclose information

regarding criminal case.

24. Now, the question would be, whether the petitioner has made a

concise statement of the material fact on which he relies as per

clauses (a) and (b) of sub-section (5) of Section 20 of the Act of

1961?

25. The law is well settled that the election of returned candidate

cannot be set aside on flimsy, vague and uncertain pleading more

so in the context of vagueness of the allegations made in the

election petition.

26. The petitioner has to make out a clear case in the pleading that the

nomination paper of respondent No.1 suffers from a defect of

substantial character and therefore it was required to be rejected

under Rule 28(4) of the Rules of 1994.

27. Respondent No.1 herein / election petitioner had come with a case

of failure to disclose or non-disclosure or concealment or

suppression in his nomination by the petitioner herein in column 4

of Form-III B framed under Rule 25-A. The election petition must

contain the following material facts based upon the information,

called, viz. -

(i) the fact that the petitioner is an accused in the offences under

specific section(s) of specific Act(s) with short description of such

offence/offences together with Cases/FIR number with the details of
Page 22 of 39

the concerned Police Station;

(ii) the fact that the offence/offences alleged against the petitioner

is/are punishable with imprisonment for a period of two years or

more;

(iii) the fact that such case/cases were pending against the

petitioner on the date of delivery of nomination paper under Rule 25

of the Rules of 1994 along with the Case No./Nos. and the name of

the Court, where the matter is pending;

(iv) the fact that the charge/charges were framed against the

petitioner prior to the date of delivery of nomination paper under

Rule 25 of the Rules of 1994 in respect of the offence/offences

alleged against him along with the specific date of framing of

charge/charges by the Court of competent jurisdiction or

cognizance of the offences has been taken; and

(v) the fact that there is a failure to disclose or non-disclosure or

concealment or suppression of the aforesaid material facts by the

petitioner in his affidavit in Form III-B delivered along with the

nomination form under Rule 25 of the Rules of 1994 to the

Returning Officer.

28. If all the aforesaid facts are pleaded or found in the petition, it can

be said that a cause of action is made out to attract the provisions

of the Rules of 1994 and to claim rejection of the nomination paper

under Rule 28(2)(c) of the Rules of 1994.

29. Reverting to the election petition in light of the aforesaid material

facts which are required to be pleaded in the election petition, it has

clearly been pleaded in the election petition (see paras 12 and 13)
Page 23 of 39

that the petitioner herein was an accused in Crime No.324/2013 for

offence under Sections 186, 353, 332, 294, 323, 506 427 read

with Section 34 of the IPC and Section 4 of the Act of 2010

registered by Police Station Bilaigarh out of which offence under

Sections 353, 332, 506 427 of the IPC are punishable with

sentence of two years' imprisonment or of more than two years and

criminal case was pending against the petitioner herein on the date

of delivery of nomination paper under Rule 25 of the Rules of 1994

and the matter was pending consideration before the Court of

Judicial Magistrate First Class, Bilaigarh. Thus, the aforesaid three

requirements are clearly pleaded in the election petition filed by

respondent No.1 herein.

30. Coming to requirement / item No.(iv), it was necessary for the

election petitioner / respondent No.1 herein to plead material fact

that prior to the date of delivery of nomination paper under the

Rules of 1994, charges were framed or cognizance of offences was

taken by the criminal court against the petitioner herein in respect

of the offences which are not disclosed in the affidavit filed in Form

III-B, by the Court of competent jurisdiction. The date of framing of

charge / charges and the date of taking cognizance of offences

become a material fact. Such pleading is required to make out a

case for non-disclosure of material fact, but surprisingly, neither the

specific date of framing charge is pleaded nor it is pleaded that

charges were framed against the petitioner / returned candidate

prior to the date of delivery of nomination paper. Such pleadings

are completely and blissfully absent in the petition. As such,

specific pleading with regard to framing of charges or taking
Page 24 of 39

cognizance of the offence against the returned candidate on the

date of delivery of nomination paper is completely missing in the

election petition. In absence of pleading, no amount of evidence

can be permitted to be led. Lack of pleading of such material facts

becomes fatal and it is difficult for the Court to try the election

petition and grant the election petition, if any. The date of taking

cognizance or the date of taking charge is a material fact which is

required to be pleaded and established as it raises a presumption

about the knowledge of the pending cases to the returned

candidate. Neither a specific date of framing charges for offences

is pleaded nor the pleading is that the cognizance was taken prior

to the date of delivery of nomination paper by the petitioner. Lack

of pleading regarding such material facts becomes fatal for election

petition and for the Court to proceed on the trial of the election

petition.

31. The learned District Judge in the impugned order has recorded a

finding that the returned candidate / petitioner was arrested on 18-

9-2013 and charge-sheet was filed on the same date before the

Judicial Magistrate First Class, Bilaigarh and matter was taken

cognizance of and thereafter, the accused was released on bail on

furnishing bail bonds and for offence under Sections 353 427 of

the IPC, sentence of imprisonment prescribed is two years and for

offence under Section 332 of the IPC, sentence of imprisonment

prescribed is three years. The learned District Judge reached to a

finding that on the date of delivery of nomination paper i.e. 15-12-

2014, the returned candidate / petitioner herein was aware about

the pendency of criminal case, but, as noticed herein-above, he
Page 25 of 39

failed to disclose the same in the affidavit filed as per Rule 25-A of

the Rules of 1994 which he was obliged to disclose in Ex.P-1,

which is a copy of nomination paper filed by him and in which

cognizance has already been taken by the Court, which is corrupt

practice within the meaning of Section 22(2) of the Act of 1961.

The finding recorded by the learned District Judge in paragraphs 21

24 in this regard is pertinent and same has been extracted

herein-below for the sake of convenience: -

21/ यददि प्र०पपी०-01 कके अननुससार प्रस्तनुत नसामदनदिरशन पत्र ककी प्रमसादणित
सत्यप्रदत व उसकके ससाथ ससलग्न स्वघघोषणिसा पत्र व शपथ पत्र कसा अवलघोकन करर तघो
यह स्पष्ट हघो जसातसा हहै दक अभ्यथर्थी इसनुप खसान नके प्ररूप 3 क ककी कणणण्डिकसा-IV कके
ससबसध मर दकसपी जसानकसारपी कसा उलकेख नहहीं दकयसा हहै , उसनके प्ररूप 3 ख कके अननुससार
ददिए गए शपथ पत्र ककी कणणण्डिकसा-IV व V कके आगके X (कसास) कसा दचिन्ह असदकत
दकयसा हहै, जजसकसा अन्यथसा अथर यह हघोतसा हहै दक उसकके दवरूद्घ नसामदनदिरशन पत्र
प्रस्तनुत करनके ककी दतजथ अथसारतत् 15/12/2014 कके छछः मसाह पपूवर प्ररूप 3 क व ख
ककी कणणण्डिकसा-IV मर उदलजखत अननुससार कघोई आपरसाजधक प्रकरणि न्यसायसालय मर
लसदबत नहहीं हहै । जबदक अदभिलकेख मर ससाक्ष्य कके दिदौरसान प्रस्तनुत दिस्तसावकेज प्र०पपी-04
सके यह प्रमसादणित हहै दक उसकके दवरूद्घ ऐससा आपरसाजधक प्रकरणि लसदबत थसा जजसकसा
उलकेख उसकके दसारसा दकयसा जसानसा न ककेवल अपकेदक्षित थसा बणलक यह अदनवसायर भिपी थसा,
क्ययोंदक अन्यथसा यह भ्रष्ट आचिरणि कके रूप मर पररलदक्षित हघोगसा, दवशके ष कर तब
जबदक यह तथ्य उस समय एकमसात्र अभ्यथर्थी अथसारत त् उत्तरवसादिपी कमसासक -01
ककी व्यदक्तिगत जसानकसारपी मर थसा ।

छत्तपीसगढ़ नगरपसाजलकसा अजधदनयम, 1961 ककी धसारसा 22 मर दनवसारचिन यसा
नसामदनदिरशन कघो शपून्य घघोदषत करनके कके अनकेक आधसार उपबसजधत हहै । धसारसा 22 (1)
(ख) कके अननुससार दनवसारदचित अभ्यथर्थी यसा उसकके अदभिकतसार दसारसा यसा दनवसारदचित
अभ्यथर्थी यसा उसकके अदभिकतसार ककी सम्मदत सके दकसपी अन्य व्यदक्ति दसारसा कघोई भ्रष्ट
आचिरणि दकयसा गयसा हहै तघो न्यसायसाधपीश अभ्यथर्थी कके दनवसारचिन यसा नसामदनदिरशन कके बसाबत
यह घघोषणिसा करकेगसा दक वह शपून्य हहै । इस प्रकरणि मर दिकेखनसा यह हहै दक उत्तरवसादिपी
कमसासक-01 दसारसा स्वघघोषणिसा पत्र मर लसदबत आपरसाजधक प्रकरणि ककी जसानकसारपी कके
ससबसध मर कनुछ भिपी न जलखनसा तथसा शपथ पत्र मर इस ससबसध मर कसास कसा दचिन्ह लगसाकर
जसानकसारपी कघो दछपसानके कसा कसायर क्यसा भ्रष्ट आचिरणि ककी शकेणिपी मर आएगसा?

24/ प्रकरणि मर प्रस्तनुत मदौजखक एवस दिस्तसावकेजपी ससाक्ष्य तथसा मसाननपीय सवर्वोच्चि
न्यसायसालय कके न्यसादृष्टसासत कके आलघोक मर यह स्पष्ट हहै दक उत्तरवसादिपी कमसासक -01 इसनुप
खसान नके वषर 2014 मर नगर पसचिसायत दबलसाईगढ़ कके अध्यक्षि पदि कके जलए आयघोजजत
Page 26 of 39

नगरपीय दनकसाय चिनुनसावयों मर अभ्यथर्थी कके रूप मर ददिनसानाँक-15/12/2014 कघो जब
नसामदनदिरशन पत्र दिसाजखल दकयसा तघो उस ददिन उसके व्यदक्तिगत रूप सके यह जसानकसारपी थपी
दक उसकके दवरूद्घ सक्षिम आपरसाजधक न्यसायसालय मर लघोक सकेवक कके ससाथ मसारपपीट
करनके, लघोक सकेवक कघो उपहदत पहह नाँचिसानके तथसा अस्पतसाल ककी सम्पजत्त कघो क्षिदत
पहह नाँचिसानके कके ससबध
स मर एक आपरसाजधक प्रकरणि लसदबत हहै जजसमर न्यसायसालय दसारसा
ससजसान जलयसा जसा चिनुकसा हहै । उत्तरवसादिपी कमसासक -01 नके इस ससबसध मर अपनके दवरूद्घ
प्रस्तनुत ससाक्ष्य कसा दकसपी भिपी रूप मर खणण्डिन नहहीं दकयसा हहै ।

पररणिसामस्वरूप यहपी मसानसा जसाएगसा दक उसनके जसानबपूझकर दनवसारचिन
प्रदकयसा मर मतदिसातसाओस पर असम्यक असर ण्डिसालनके कके आशय सके स्वघघोषणिसा
पत्र तथसा शपथ पत्र मर अपनके दवरूद्घ लसदबत आपरसाजधक प्रकरणि कसा उलकेख
नहहीं दकयसा, उत्तरवसादिपी कमसासक-01 नके मतदिसातसाओस कघो अपनपी आपरसापजधक
पपृष्ठभिपूदम ककी जसानकसारपी जसानबपूझकर इसजलए नहहीं दिपी तसादक वके उसकके
आचिरणि कके बसारके मर ददिग्भ्रदमत हघो जसाएस यहपी दनष्कषर दनकसालसा जसाएगसा । ऐसके
मर इस प्रकरणि मर यह जसद्घ हहै दक उत्तरवसादिपी कमसासक -01 नके नसामदनदिरशन पत्र
कके ससाथ प्रस्तनुत हघोनके वसालके स्वघघोषणिसा पत्र तथसा शपथ पत्र मर दनयमयों दसारसा
अपकेदक्षित अदनवसायर तसाणत्वक जसानकसारपी कघो जसानबपूझकर प्रस्तनुत न कर
दनवसारचिन मर भ्रष्ट आचिरणि दकयसा हहै, क्ययोंदक यददि लसदबत आपरसाजधक प्रकरणि
ककी जसानकसारपी उसकके दसारसा प्रदिसाय ककी जसातपी तघो दनवसारचिन अजधकसारपी कके
ससाथ-ससाथ अन्य अभ्यजथर ययों कघो इस ससबसध मर ससवपीक्षिसा/आपजत्त कसा अवसर
प्रसाप्त हघोतसा, ससाथ हपी मतदिसातसाओस कघो पतसा चिलतसा दक उनकके समक्षि आनके
वसालके अभ्यथर्थी ककी कघोई आपरसाजधक पपृष्ठभिपूदम हहै अथवसा नहहीं ।

32. The aforesaid findings indicate that the learned District Judge has

recorded a finding that criminal case was pending against the

petitioner/returned candidate on the date of delivery of nomination

paper in which the petitioner stood as accused for offences

punishable with imprisonment either for two years or more than two

years. In paragraph 24, the learned District Judge recorded a

finding that cognizance of offences has been taken.

33. A careful perusal of the entire election petition would show that it

has only been pleaded in the election petition that criminal case

against the returned candidate for the above stated offences

punishable with imprisonment either for two years or more than two
Page 27 of 39

years, is pending consideration before the Court of Judicial

Magistrate First Class, Bilaigarh, and it has neither been pleaded

that either the court has taken cognizance or charges have been

framed nor it has been whispered in the election petition. As

already held herein-above, in order to put the election petition to

trial, pleading of material facts particularly that charges have been

framed or cognizance has been taken is sine qua non which have

neither been pleaded nor it has been whispered as such, the

finding of the learned District Judge holding that offence has been

taken cognizance of by such court is perverse and contrary to

record, particularly in view of the fact that it has not been pleaded in

the election petition and in absence of such pleading no amount of

evidence, as already held, can be taken into consideration and

therefore it is not a case of non-disclosure of information required

under the Rules of 1994. There is no pleading that the defect was

of a substantial character and, therefore, the Returning Officer was

required to reject the nomination paper under the Rules of 1994 on

that ground.

34. Thus, from what has been held herein-above, it is apparent that it is

a case of failure of pleading material facts of non-disclosure of

information in Form-IIIB framed under Rule 25-A, column (iv), of the

affidavit delivered under Rule 25-A of the Rules of 1994 that prior to

the date of delivery of nomination paper, (i) charges were framed

against the petitioner in a case pending in respect of any offence

punishable with imprisonment for a period of two years or more and

(ii) he was an accused in a pending case in which cognizance was

taken in respect of any offence punishable with imprisonment for
Page 28 of 39

less than three years and such defect was of a substantial

character requiring the rejection of nomination paper by the

Returning Officer under Rule 28(2) of the Rules of 1994. As such,

the learned District Judge is absolutely unjustified in holding that

the petitioner is guilty of corrupt practice under Section 22(1)(b)

read with Section 22(1)(a) of the Act of 1961 and in further

declaring the election to be void.

35. Yet, there is one more additional reason for holding so. The

election for the post of President, Nagar Panchayat is governed by

the Act of 1961 read with the Chhattisgarh Nirvachan Niyam, 1994.

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

effect from 17-8-2004. Rule 25-A of the Rules of 1994 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

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
Page 29 of 39

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

36. 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.

37. The Act of 1961 has not been amended inserting the provision akin

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

People Act, 1951 which obliges the candidate to furnish information

in his nomination paper delivered under sub-section (1) of Section

33 of the said 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 Representation of the

People Act, 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--

(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"

Page 30 of 39

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

Section 33A(1)(i) of the Representation of the People Act, 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."

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

competent legislature either under the Act of 1961 or under the

Rules of 1994 obliging the candidate submitting nomination paper

for the post of President, Nagar Panchayat to disclose the

pendency of criminal cases in which charges have been framed as

prescribed in Section 33-A(1)(i) of the Representation of the People

Act, 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 1961 and

the rules made thereunder governing election. Therefore, at the

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

petitioner was not obliged to disclose the said information of

pendency of criminal cases in which charges have been framed
Page 31 of 39

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 1961 and the rules made thereunder.

40. 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 22(1)(d) of the Act of 1961 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 5, Paokai Haokip v. Rishang and others 6,

Tek Chand v. Dile Ram 7, Santosh Yadav v. Narender Singh 8,

Mangani Lal Mandal v. Bishnu Deo Bhandari 9, Rajendra

Kumar Meshram v. Vanshmani Prasad Verma and another 10

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

Pukhrem Sharatchandra Singh 11.)

41. 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 1961 or the rules made under the

Act of 1961 as ground enumerated under Section 22(1)(d)(iii) of the

Act of 1961 for declaring election to be void.

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

5 AIR 1954 SC 513
6 AIR 1969 SC 663
7 AIR 2001 SC 905
8 AIR 2002 SC 241
9 AIR 2012 SC 1094
10 AIR 2016 SC 4700
11 AIR 2016 SC 5087
Page 32 of 39

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

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;

(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"

43. Thus, the learned District Judge is absolutely unjustified in setting

aside the election of the petitioner / returned candidate.

44. This brings me to the next point that the learned District Judge is

further justified in declaring respondent No.1 to be elected
Page 33 of 39

candidate.

45. Section 24(2) of the Act of 1961 provides the procedure for

declaring the petitioner or other candidate to be elected candidate.

Section 24(2) provides as under: -

"24. Decision on election petition.--(1) xxx xxx xxx

(2) If any person who has filed an election petition has, in
addition to calling in question the election or nomination
of the returned candidate, claimed declaration that he
himself or any other candidate has been duly elected or
nominated and the Judge is of opinion--

(a) that in fact the petitioner or such candidate received a
majority of the valid votes; or

(b) that but for the votes obtained by the returned
candidate the petitioner or such other candidate would
have obtained a majority of the valid votes;

the Judge shall, after declaring the election or nomination
of the returned candidate, to be void, declare the
petitioner or such other candidate, as the case may be,
to have been duly elected or nominated."

46. Section 24(2) of the Act of 1961 is a replica of the provision

contained in Section 101 of the Representation of the People Act,

1951.

47. The question that the petitioner or other candidate can be declared

elected after declaring the election of the returned candidate to be

void came to be considered before the Supreme Court in the matter

of Prakash Khandre (supra) in which following question was

framed by Their Lordships: -

"1. In an election petition under the Representation of
the People Act, 1951 (hereinafter referred to as "the
Act"), when contest for election to the post of MLA is by
more than two candidates for one seat and a candidate,
who was disqualified to contest the election, is elected -
whether the court can declare a candidate who has
secured next higher votes as elected? and"

48. The Supreme Court further considered the question, if there are
Page 34 of 39

more than two candidates for one seat and the elected candidate is

subsequently found to be disqualified, whether the candidate who

has secured more votes than the remaining candidates should be

declared as elected or not, and it was held as under: -

"12. Therefore, the first ingredient for declaring the
election petitioner or other candidate to have been duly
elected depends upon error for various reasons in
counting of valid votes and if it is found that in fact the
petitioner or such other candidate received a majority of
valid votes, he is to be declared elected.

13. The second ingredient provides for establishing
that the votes obtained by the returned candidate were
obtained by corrupt practices and but for such votes the
petitioner or such other candidate would have obtained a
majority of valid votes. Say as in the present case, the
difference between the elected candidate and the
election petitioner is of 10,327 votes and if it is
established that elected candidate obtained more than
10,327 votes by corrupt practices then the petitioner or
such other candidate who has obtained majority of valid
votes could be declared as elected.

14. However, in an election where the elected
candidate is declared to be disqualified to contest
election and there are more than two candidates
contesting election, there is no specific provision under
the Act under which the person who has secured the
next highest number of votes could be declared as
elected. The Act is silent on this point. Further, it cannot
be presumed that the votes secured by the disqualified
elected candidates would have been wasted or would
have been secured by the next candidate who has
secured more votes. If disqualified candidate was not
permitted to contest the election then how the voters
would have voted in favour of the candidate who has
secured more votes than other remaining candidates
would be a question in the realm of speculation and
unpredictability. In such a situation, declaring the
election of the returned candidate on the ground of his
initial disqualification to contest the election by itself
would not entitle the election petitioner or any other
candidate to be declared elected."

49. Finally, in paragraph 24, the Supreme Court revisiting the entire law

on the point held that where there is more than one candidate for

one seat, it would be impossible to predict or guess in whose favour
Page 35 of 39

the voters would have voted if they were aware that the elected

candidate was disqualified to contest election and observed as

under: -

"24. In view of the aforesaid settled legal position, in our
view, the impugned order passed by the High Court
declaring the election petitioner as elected on the ground
that the votes cast in favour of elected candidate
(appellant) are thrown away was totally erroneous and
cannot be justified. As held by the Constitution Bench in
Konappa case12 that some general rule of election law
prevailing in the United Kingdom that the votes cast in
favour of a person who is found disqualified for election
may be regarded as "thrown away" only if the voters had
noticed before the poll the disqualification of the
candidate, has no application in our country and has only
merit of antiquity. We would observe that the question of
sending such notice to all voters appears to us alien to
the Act and the Rules. But that question is not required
to be dealt with in this matter. As stated earlier, in the
present case, for one seat, there were five candidates
and it would be impossible to predict or guess in whose
favour the voters would have voted if they were aware
that the elected candidate was disqualified to contest
election or if he was not permitted to contest the election
by rejecting his nomination paper on the ground of
disqualification to contest the election and what would
have been the voting pattern. Therefore, order passed
by the High Court declaring the election petitioner Dr.
Vijay Kumar Khandre as elected requires to be set
aside."

50. Reverting to the facts of the present case, it is quite vivid that in the

present case, for one seat of President, Nagar Panchayat there

were four candidates in the election and the election petitioner has

failed to plead and establish in whose favour the voters would have

voted if they were aware that the elected candidate was disqualified

to contest the election or if he was not permitted to contest the

election by rejecting his nomination paper on the ground of

disqualification to contest the election and what would have been

the voting pattern. In that view of the matter, the learned District

12 AIR 1969 SC 604 sub nom Vishwanatha Reddy v. Konappa Rudrappa Nadgouda
Page 36 of 39

Judge is absolutely unjustified in holding that the respondent No.1

herein is entitled to be declared elected. Therefore, the order

passed by the learned District Judge declaring the election of the

petitioner herein to be void and further declaring respondent No.1

herein to be declared as elected deserves to be and is hereby set

side and it is declared that the petitioner herein is entitled to

continue as President of Nagar Panchayat, Bilaigarh.

51. Cross-objection has been filed on behalf of respondent No.1 herein

to support the impugned order. Serious question has been raised

as to whether the cross-objection is maintainable. There is no

provision in the Act of 1961 to file cross-objection if revision is

preferred under Section 26(2) of the Act of 1961. Cross-objection is

like an appeal. It has all the trappings of an appeal. (See Hari

Shankar Rastogi v. Sham Manohar and others 13.)

52. It is well settled law that right of appeal is a creature of statute. It

cannot be conferred or inferred by the courts. The Constitution

Bench of the Supreme Court in the matter of U.P. Awas Evam

Vikas Parishad v. Gyan Devi (Dead) by LRs. and others 14

has held that right to appeal is statutory right and the courts

cannot confer or infer it. It has further been held that what is

legislatively not permitted cannot be read by implication, not in

respect of right of appeal, as it "is a creature of statute". Relying

upon the matter of Shankar Kerba Jadhav v. State of

Maharashtra 15, it was held as under: -

"A right of appeal is conferred by statute or equivalent

13 (2005) 3 SCC 761
14 (1995) 2 SCC 326
15 (1969) 2 SCC 793
Page 37 of 39

legislative authority; it is not a mere matter of practice
or procedure, and neither the superior nor the inferior
court or Tribunal nor both combined can create or take
away such a right."16

53. Similarly, the Supreme Court in the matter of Kamla Devi v.

Kushal Kanwar and another 17 held as under: -

"11. A right of appeal under the Code is statutory.
Such right of appeal is also conferred under the letters
patent of the High Court or the statutes creating the
High Court.

12. An appeal, as is well known, is the right of
entering a superior court invoking its aid and
interposition to redress an error of the court below.
The central idea behind filing of an appeal revolves
round the right as contradistinguished from the
procedure laid down therefor."

54. It is equally well settled that power to create or enlarge

jurisdiction of the court is legislative function. A Constitution

Bench (seven Judges) of the Supreme Court in the matter of

A.R. Antulay v. R.S. Nayak and another 18 has held that the

power to create or enlarge jurisdiction is legislative in character,

so also the power to confer a right of appeal or to take away a

right of appeal. Parliament alone can do it by law and no court,

whether superior or inferior or both combined, can enlarge the

jurisdiction of a court or divest a person of his rights of revision

and appeal.

55. As held herein-above, since cross-objection is like an appeal and

right of appeal is a creature of statute, it must be conferred by the

appropriate legislature and it cannot be interfered by the court. In

absence of specific legislative sanction enabling the respondents to

16 Halsbury's Laws of England, Vol. 37, para 677
17 (2006) 13 SCC 295
18 (1988) 2 SCC 602
Page 38 of 39

prefer cross-objection and appeal, the cross-objection is not

maintainable and it is held accordingly. Resultantly, the cross-

objection is dismissed as not maintainable in law, as lacking

legislative sanction.

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

impugned order passed by the District Judge setting aside the

election of the petitioner and consequently, declaring respondent

No.1 to be elected candidate, is hereby set aside and the petitioner

is eligible to assume the office and function as President of Nagar

Panchayat, Bilaigarh, forthwith.

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

above. No order as to cost(s).

Sd/-

(Sanjay K. Agrawal)
Judge
Soma
Page 39 of 39

HIGH COURT OF CHHATTISGARH, BILASPUR

Civil Revision No. 10 of 2017

Isup Khan

Versus

Narsingh Dewangan and others

Head Note

In order to set aside the election of President, Nagar Panchayat,

material fact regarding criminal case that charges have been framed or

cognizance has been taken, has to be specifically pleaded.

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