Orissa High Court: In an application under Sections 80, 81, 82, 83 and 84 read with Section 100 of the Representation of People Act, 1951, (‘the Act’) seeking declaration of the nomination of Indian National Congress’s Mohammed Moquim, member of the Odisha Legislative Assembly (‘Respondent’) and the election of the 90-Barabati Cuttack Assembly Constituency as void, S.K. Sahoo, J. allowed the application and declared the election of the Respondent from the 90-Barabati Cuttack Assembly Constituency held in April 2019 as void and that the Respondent filed his nomination papers in violation of Section 33 of the Act.
Factual Matrix
The Respondent filed his nomination papers on 02-04-2019 and secured 50244 votes and he was elected as Member of Legislative Assembly from Barabati-Cuttack. The applicant’s case was that the Respondent had not submitted his nomination papers in the prescribed Form 2B and had filed false affidavit in Form 26 along with the nomination papers and has thus violated the Election Rules and Act and as such the election of Respondent was void and to direct, inter alia, for fresh election in the Barabati Cuttack Assembly Constituency to the Odisha State Legislative Assembly. It was also alleged that the respondent filed his nomination paper in violation of Section 33 of the Act, which prescribes that each candidate shall, either in person or by his proposer, between the hours of eleven O’ clock in the forenoon and three O’ clock in the afternoon deliver to the Returning Officer at the place specified in this behalf in the notice issued under section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer.
Analysis
The Court perused Section 81(3) of the Act, which prescribes that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition, and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. The Court referred to Article 173 and Article 191 of the Constitution of India deals with qualification for membership of the State Legislature and disqualifications for membership, respectively.
The Court on perusal of Rule 4 of the Conduct of Elections Rules, 1961, (‘1961 Rules’) said that the failure to complete or defect in completing the declaration as to symbols in a nomination paper shall not be deemed a defect of substantial character. The Court also said that it is not that every defect such as deletion of Part II of nomination paper and not filing the Part III and III-A of the nomination paper in the prescribed Form 2B is not a defect of substantial character.
The Court noted that every candidate contesting the General Assembly election of the Constituency held in the year 2019 was required to file their nomination papers in Form 2B only as appended to the 1961 Rules and not in any other form. The Court said that the nomination papers filed by the Respondent were not in the prescribed Form 2B and that even the Returning Officer had stated that the nomination papers filed by the Respondent were not exactly in the prescribed Form 2B. Thus, the Court said that the Returning Officer had illegally and improperly accepted such nomination papers and the mandate of Section 33 of the Act read with Rule 4 of the 1961 Rules and the instructions issued by the Election Commission of India in exercise of power under Article 324 of the Constitution have been violated. The Court also added that deletion of PART-II of the nomination in Form 2B in pursuance to the instruction given in the prescribed nomination Form 2B, by the Respondent rendered his nomination liable for rejection. Further, the Court said that the defects as pointed out by the applicant regarding deletion of PART-II of nomination Form 2B as well as with respect to PART-III and PART-IIIA of nomination Form 2B constituted a substantial defect and as such the nomination filed by the Respondent was not rightly accepted by the Returning Officer as prescribed under Section 36(4) of the Act. Therefore, the Court held that the Respondent filed his nomination papers in violation of Section 33 of the Act. The Court also opined that the Respondent did not make proper and full declaration of the criminal cases pending against him in the affidavit filed in Form 26.
Further, the Court said that the Respondent was duty bound as a candidate to make true disclosure about the criminal cases pending against him and that taking defence of clerical or printing error cannot be countenanced when it is apparent that such errors have occurred at multiple places. The Court stated that “a responsible man seeking election to the House of the State Legislature is not expected to file his nomination whimsically without verifying the contents thereof, specifically taking into account the fact that voters shall judge him on the basis of disclosure he makes in his nomination papers as well as the affidavit.” The Court also added that the suppression/wrong information/false information affects the voter’s fundamental right to know about the criminal cases pending against the Respondent correctly.
Considering the defects in the nomination papers, the Court said that the result of the election, insofar as it concerned the Respondent, was materially affected.
Regarding the declaration of the bank accounts, the Court noted that the candidate is required to give the assets in joint name indicating the extent of joint ownership. The Court noted that the accounts in Federal Bank Limited, B.K. Road, Cuttack and S.B.I., Main Branch, Chandinichowk, Cuttack are the joint accounts of the Respondent and his spouse. The Court said that the Respondent did not mention the extent of joint ownership of the two accounts in his affidavit in Form 26 filed along with his nomination papers. The Court also noted that the two bank accounts were not even declared in the spouse column which was required to indicated as she was the joint account holder.
Decision
The Court allowed the application and declared that the election of the Respondent as MLA from the 90-Barabati Cuttack Assembly Constituency held in April 2019 was void and hence, the same was set aside.
[Debashish Samantaray v. Mohammed Moquim, 2024 SCC OnLine Ori 1102, Decided on: 04-03-2024]
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