Mangani Lal Mandal vs Bishnu Deo Bhandari

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s). 10728 OF 2011

MANGANI LAL MANDAL Appellant (s)

VERSUS

BISHNU DEO BHANDARI Respondent(s)

J U D G M E N T

R.M. Lodha, J.

The returned candidate - Mangani Lal Mandal -

is in appeal under Section 116A of the Representation of

the People Act, 1951 (for short, '1951 Act') aggrieved by

the judgment dated November 25, 2011 of the Patna High

Court whereby his election to the 15th Lok Sabha has been

set aside.

2. The appellant - the returned candidate -

contested the general Parliament election to the 15th Lok

Sabha from 7, Jhanjharpur Parliamentary Constituency held

on April 23, 2009. Altogether 12 candidates filed their

nomination papers, including the appellant, as per the

schedule fixed for conducting the said election. On May

16, 2009, the result of the above election was announced

and the appellant was declared elected.

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3. The respondent - Bishnu Deo Bhandari, a voter

(hereinafter referred to as the 'election petitioner') -

challenged the election of the returned candidate by filing

the election petition before the Patna High Court. The

election petitioner alleged that the returned candidate

suppressed the facts in the affidavit that he filed

alongwith his nomination papers that he had two wives and

the dependent children by marriage with his first wife. He

did not disclose the assets and liabilities of his first

wife and the dependent children born out of that wedlock.

The challenge to the election of the returned candidate was

brought under Section 100(1)(d)(iv) of the 1951 Act and it

was prayed that the election of the returned candidate be

declared to be void.

4. The returned candidate traversed the

averments made by the election petitioner and also raised

diverse objections, inter alia, that the election petition

did not disclose any cause of action nor it contained the

concise statement of material facts.

5. The High Court, on the basis of the pleadings

of the parties, framed as many as seven issues and, after

recording the evidence, held that the returned candidate

failed to furnish information about his first wife and the

dependents in the affidavit filed along with his nomination

CIVIL APPEAL NO(s). 10728 OF 2011

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papers. The High Court heavily relied upon the two

decisions of this Court in Union of India Vs. Association

for Democratic Reforms & Anr.1 and People's Union for Civil

Liberties (PUCL) & Anr. Vs. Union of India & Anr.2 and

held that the suppression of facts by the returned

candidate with regard to the assets and liabilities of his

first wife and the dependent children born out of that

wedlock was breach of the Constitution viz. Article

19(1)(a) and for such breach and non-compliance, the

candidate who has not complied with and breached the right

to information of electors and has won the election has to

suffer the consequence of such non-compliance and the

breach. The High Court, in view of the above, set aside

the election of the returned candidate from Jhanjharpur

Parliamentary Constituency being void under Section

100(1)(d)(iv) of the 1951 Act.

6. We have heard Mr. A. Sharan, learned senior

counsel for the appellant, and Mr. S.B.K. Manglam, learned

counsel for the respondent.

7. The Appeal deserves to be allowed on the

short ground which we indicate immediately hereinafter.

8. Section 100 of the 1951 Act provides for

grounds for declaring election to be void. As we are

concerned with Section 100(1)(d)(iv), the same is

1 (2002) 5 SCC 294

2 (2003) 4 SCC 399

CIVIL APPEAL NO(s). 10728 OF 2011

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reproduced which reads as under :-

"100. Grounds for declaring election to be void.-(1) Subject to the provisions of sub- section (2) if the High Court is of opinion-

(a) x x x x (b) x x x x (c) x x x x

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

(i) x x x (ii) x x x (iii) x x x (iv) by any non-compliance with the provisions of the Constitution or of this Act or any rules or orders made under this Act,

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

(2) x x x x"

9. A reading of the above provision with Section

83 of the 1951 Act leaves no manner of doubt that where a

returned candidate is alleged to be guilty of non-

compliance of the provisions of the Constitution or the

1951 Act or any rules or orders made thereunder and his

election is sought to be declared void on such ground, it

is essential for the election petitioner to aver by

pleading material facts that the result of the election

insofar as it concerned the returned candidate has been

materially affected by such breach or non-observance. If

the election petition goes to trial then the election

petitioner has also to prove the charge of breach or non-

CIVIL APPEAL NO(s). 10728 OF 2011

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compliance as well as establish that the result of the

election has been materially affected. It is only on the

basis of such pleading and proof that the Court may be in a

position to form opinion and record a finding that breach

or non-compliance of the provisions of the Constitution or

the 1951 Act or any rules or orders made thereunder has

materially affected the result of the election before the

election of the returned candidate could be declared void.

A mere non-compliance or breach of the Constitution or the

statutory provisions noticed above, by itself, does not

result in invalidating the election of a returned candidate

under Section 100(1)(d)(iv). The sine qua non for declaring

election of a returned candidate to be void on the ground

under clause (iv) of Section 100(1)(d) is further proof of

the fact that such breach or non-observance has resulted in

materially affecting the result of the returned candidate.

In other words, the violation or breach or non-observation

or non-compliance of the provisions of the Constitution or

the 1951 Act or the rules or the orders made thereunder, by

itself, does not render the election of a returned

candidate void Section 100(1)(d)(iv). For the election

petitioner to succeed on such ground viz., Section

100(1)(d)(iv), he has not only to plead and prove the

ground but also that the result of the election insofar as

it concerned the returned candidate has been materially

CIVIL APPEAL NO(s). 10728 OF 2011

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affected. The view that we have taken finds support from

the three decisions of this Court in (1) Jabar Singh Vs.

Genda Lal3; (2) L.R. Shivaramagowda and Others Vs. T.M.

Chandrashekhar (dead) by LRs. and Others.4 and (3) Uma

Ballav Rath (Smt.) Vs. Maheshwar Mohanty (Smt) and others5.

10. Although the impugned judgment runs into 30 pages,

but unfortunately it does not reflect any consideration on

the most vital aspect as to whether the non-disclosure of

the information concerning the appellant's first wife and

the dependent children born out of that wedlock and their

assets and liabilities has materially affected the result

of the election insofar as it concerned the returned

candidate. As a matter of fact, in the entire election

petition there is no pleading at all that suppression of

the information by the returned candidate in the affidavit

filed along with the nomination papers with regard to his

first wife and dependent children from her and non-

disclosure of their assets and liabilities has materially

affected the result of the election. There is no issue

framed in this regard nor there is any evidence let in by

the election petitioner. The High Court has also not formed

any opinion on this aspect. We are surprised that in the

absence of any consideration on the above aspect, the High

3 (1964) 6 SCR 54

4 (1999) 1 SCC 666

5 (1999) 3 SCC 357

CIVIL APPEAL NO(s). 10728 OF 2011

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Court has declared the election of the returned candidate

to the 15th Lok Sabha from the Jhanjharpur Parliamentary

Constituency to the void. The impugned judgment of the

High Court is gravely flawed and legally unsustainable. As

a matter of law, the election petition filed by the

election petitioner deserved dismissal at threshold yet it

went into the whole trial consuming Court's precious time

and putting the returned candidate to unnecessary trouble

and inconvenience.

11. Civil Appeal is, accordingly, allowed. The impugned

judgment dated November 25, 2011 is set aside. The

election petition filed by the respondent is dismissed with

costs which we quantify at ` 1,00,000/- (Rupees One Lakh).

...........................J. (R.M. LODHA)

NEW DELHI; ..............................J. FEBRUARY 1, 2012 (SUDHANSU JYOTI MUKHOPADHAYA)