RAJENDRA KUMAR MESHRAMversusVANSHMANI PRASAD VERMA AND ANR.

                             [2016] 9 S.C.R. 74



A                   RAJENDRA KUMAR MESHRAM
                                     v.
              VANSHMANI PRASAD VERMA AND ANR.
                      (Civil Appeal No.3797 of2015)
B                          OCTOBER 03, 2016
          [RANJAN GOGOi AND PRAFULLA C. PANT, JJ.]
          Election Laws:
         Representation of People Act, 1951 - ss.33(5), 36(2)(b), 87,
C JOO(l)(a) and JOO(l)(d) - Election of appellant to a constituency
  of Madhya Pradesh Legislative Assembly - Election petition filed
  by respondent No. J - High Court held that appellant had not filed
  the electoral roll (or certified copy thereof) of his constituency,
  therefore the returning officer had committed an illegality in
D accepting the nomination of appellant - High Court came to the
  conclusion that election of appellant was liable to be declared void
  uls.JOO(J)(a) along with s.JOO(l)(d)(i) - On appeal, held: High
  Court ought to have found out whether improper acceptance of the
  nomination had materially affected the result ofthe election - Without
  dealing with that question/issue, it was not empowered to declare
E the election of appellant-returned candidate as void - To declare
  election void uls.JOO(l)(a), it must be established that the returned
  candidate is not a voter of any assembly constituency of the State -
  Election petition filed by the respondent-election petitioner itself
  stated that the appellant-returned candidate was a registered voter
F of a constituency - There was no pleading at all to the effect that
  appellant was not a voter - Therefore, order of High Court
  unsustainable - Election of appellant-returned candidate was valid.
          Allowing the appeal, the Court
          HELD: 1. The election of the appellant-returned candidate
a is declared to be valid in law. [Para 17] (82-G]
          2. Under s.100 (l)(d) of Representation of People Act,1951,
    an election is liable to be declared void on the ground of improper
    acceptance of a nomination if such improper acceptance of the
    nomination has materially affected the result of the election. This
H   is in distinction to what is contained in s.lOO(l)(c) i.e. improper
                                       74
 RAJENDRA KUMAR MESHRAM v. VANSHMANI PRASAD                                75
               VERMA AND ANR.

rejection of a nomination which itself is a sufficient ground for          A
invalidating the election without any further requirement of proof
of material effect of such rejection on the result of the election.
The High Court did not endeavor to go into the further question
that would be required to be determined even if it is assumed
that the appellant-returned candidate had not filed the electoral
                                                                            B
roll or a certified copy thereof and, therefore, had not complied
with the mandatory provisions of s.33(5) of the 1951 Act. Before
setting aside the election on the above ground, the High Court
ought to have carried out a further exercise, namely, to find out
whether the improper acceptance of the nomination had materially
affected the result of the election. The High Court having failed           c
to determine the said issue naturally, it was not empowered to
declare the election of the appellant returned candidate as void
even if it is assumed that the acceptance of the nomination of the
returned candidate was improper. (Para 9) (79-F-H; 80-A-C)
       3.1 Under s.lOO(l)(a), the election of the returned candidate        D
is liable to be declared void if, i11ter ali<t, he was not qualified for
membership of Parliament or the State Legislature as may be.
S.5 of the 1951 Act deals with qualifications for membership of a
Legislative Assembly of a State which, i11ter lllill, requires a
candidate to be an elector of any Assembly constituency of the
State. To declare an election void u/s.lOO(l)(a), it must, therefore,       E
be established that the returned candidate is not a voter of any
assembly constituency of the State. [Para llj (80-E-F]
       3.2 No objection to the effect that the returned candidate
was not qualified to contest the election as he was not a voter of
any assembly Constituency of the State was raised in the objection          F
filed in election petition. Neither was any objection taken to the
effect that the returned candidate was not eligible to participate
in the election as he had not furnished the electoral roll of the
Constituency in which he was a voter or a certified copy thereof.
However, in the election petition filed, it was pleaded in para             G
1.11, that the returned candidate had "failed to furnish a certified
copy of the voter list to entitle him to contest the election from
Devsar constituency as he is registered voter of 80, Singrauli
constituency and without filing the certified copy of relevant part
of voter list he was not eligible to contest from other constituency."
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76            SUPREME COURT REPORTS                        [2016) 9 S.C.R.


A    There was no pleading at all to the effect that the appellant is not
     a voter of any assembly constituency and therefore is not qualified.
     [Para 12) [80-G-H; 81-A-C]
           3.3 The trial of an election petition, as per section 87 of
     1951 Act has to be in accordance with the provisions of the Code
B    of Civil Procedure, 1908. When no pleadings that the election of
     the returned candidate was void on grounds mentioned in section
     IOO(l)(a) were made and no issue on this score was struck and
     no op1>ortunity to the returned candidate to adduce relevant
     evidence was afforded, the High Court could not have found that
     the election of the returned candidate was void under section
C    IOO(l)(a). The High Court erred in holding that the respondent-
     election petitioner had made out a case for declaration that the
     result of the election in favour of the returned candidate was void
     u/s.IOO(l)(a) of the 1951 Act. [Paras 14, 15) [81-E-F; 82-D-E)
        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3797
D of2015.
        From the Judgment and Order dated 31.03.2015 of the High Court
  of Madhya Pradesh Judicature at Jabalpur in Election Petition No. 2 of
  2014.
        Shekhar Naphade, Sr. Adv., C. D. Singh, D.S. Parmar, Ms. Sakshi
E Kakkar, Ms. Shivali Choudhary, Adv. for the Appellant.
        Vivek Tankha, Sr. Adv., Pawanshree Agrawal, Sachin Pujari,
  Ms. Nikita Shrivastava, Mishra Saurabh,Ankit Kr. Lal, Advs. for the
  Respondents.
        The Judgment of the Court was delivered by
F       RANJAN GOGOi, J. I. The election of the appellant to the
  No.81 Deosar Constituency of Madhya Pradesh Legislative Assembly
  which was held on 11.05.2013 has been set aside by the High Court in
  an election petition filed by the respondent No. I herein. The validity of
  the said order of the High Court is the subject matter of the present
G appeal.
         2. On a reading of the election petition filed by the respondent
  No. I, it would appear to us that several grounds were urged to invalidate
  the election in question. According to the respondent-election petitioner,
  one of the nominations filed by him as a candidate of the Indian National
H Congress Party was wrongly rejected on the ground that the symbol
  RAJENDRA KUMAR MESHRAM v. VANSHMANI PRASAD                                     77
        VERMA AND ANR. [RANJAN GOGOi, J.]

allotment letter was submitted by the election petitioner after the stipulated   A
time. However as two other nominations filed by the respondent-election
petitioner as an independent candidate was accepted, he contested the
election in which he lost. Consequently, he challenges the rejection of
his nomination as a Indian National Congress Party candidate as being
wrongful. Apart from the above ground, the election petition was also
                                                                                  B
filed alleging that the appellant-returned candidate was a government
servant. In addition to the above, it was pleaded that the appellant-returned
candidate had failed to furnish, along with the nomination paper, a copy/
certified copy of the electoral rol i of N o.80 Singrau!i constituency in
which electoral roll his name was claimed to be appearing against serial
No.118. According to the election petitioner on account of the aforesaid          c
omission the returned candidate was not eligible to participate in the
election. His nomination, therefore, was wrongly accepted.
       3. The High Court answered the first two questions in favour of
the returned candidate. However, insofar as the third question set forth
above is concerned, the conclusion of the High Court is adverse to the            D
returned candidate. In this connection the High Court came to the
conclusion that the returned candidate had not filed the electoral roll or
certified copy thereof ofNo.80 Singrauli Constituency and therefore the
returning officer had committed an illegality in accepting the nomination
of the returned candidate and in not rejecting the same on account of
non-compliance of Sections 33(5) and 36(2)(b) of the Representation of            E
People Act, 1951 (For short, "the 195 I Act"). On the said basis the High
Court came to the conclusion that the election of the returned candidate
was liable to be declared void under Section I 00(1 )(a) along with Section
 IOO(l)(d)(i) of the 1951 Act. Consequential directions therefore have
been issued. Aggrieved this appeal has been filed.                                F
      4. We have heard Shri Shekhar Naphade, learned senior counsel
appearing for the appellant, Shri Vivek Tankha, learned senior counsel
appearing for the respondent No. I and Shri Mishra Saurabh, learned
counsel for the respondent No.2.
       5. As no cross appeal has been filed by the respondent-election            G
petitioner challenging the findings of the High Court adverse to him, the
scope of the present appeal is confined to the correctness of the order
of the High Court insofar as the third question set forth above is
concerned.
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78             SUPREME COURT REPORTS                           [2016] 9 S.C.R.


 A          6. At the outset the relevant part of the pleadings contained in the
     election petition insofar as the said issue is concerned may be set out as
     hereunder:-
           1.11 That, the election of the respondent as a member of M.P.
           Legislative Assembly for Devsar Constituency deserves to be
 B         declared as void for the reason that the Returning Officer has
           wrongly rejected the petitioner's nomination form as candidate
           sponsored by Indian National Congress and also for wrongly
           accepting the nomination from the respondent. It is also submitted
           that the respondent not only failed to submit order by Competent
           Authority accepting his resignation but also failed to furnish a
 c         certified copy of the voter list to entitle him to contest the election
           from Devsar constituency as he is registered voter of 80. Singrauli
           constituency and without filing the certified copy ofrelevant part
           of voter list he was not eligible to contest from other constituency.
           Acceptance of respondent's nomination form has materially
·D         affected the election result.
            1.12 That the respondent has been illegally allowed to contest
            the election while the petitioner has been wrongly denied the right
            to contest the election and therefore, this petition.
            1.13 That, the rejection of nomination form of the petitioner was
 E          illegal and contrary to election law and rules framed thereunder
            and as such declaring the respondent No. I (one) as returned
            candidate from 81, Devsar constituency deserves to be quashed
            and deserves to be declared as null and void.
            1.14 That, the nomination form of the respondent has been
 F          wrongly accepted by the Returning Officer ignoring the legal
            provision. It is submitted that the respondent has not produced
            any valid documents to prove that he was not in service on the
            date of filing ofhis nomination form and he has also not furnished
            the certified copy of the relevant part of the voter list of the
 G          constituency in which he was registered as voter to entitle him to
            contest election from other constituency i.e. 81, Devsar
            Constituency."
         7. In a written statement filed by the returned candidate, all the
   aforesaid averments have been denied. On the basis of the pleadings of
 H the parties the following issues were framed by the Court:-
 RAJENDRA KUMAR MESHRAM v. VANSHMANI PRASAD                                       79
       VERMA AND ANR. [RANJAN GOGOi, J.]

      (1) Whether the returning officer has malafidely rejected the               A
      petitioner's nomination form as the candidate sponsored by the
      Indian National Congress under fhe influence of the then ruling
      party?
      (2) Whether respondent No. I was in government service at the
      time of acceptance of his nomination form by the returning officer?         B
      (3) Whether respondent No.2 has committed illegality in accepting
      the nomination form of respondent No. I?
      (4) Whether respondent No.1 has failed to prove that his name
      was in the voter list of80 Singrauli Constituency? (if so, effect)
                                                                                   c
      (S) Whether respondent No. I has failed to submit valid Caste
      Ce1tificate for contesting the election from the constituency
      reserved for scheduled caste category?
       (6) Whether result of election of 81 Deosar Constituency was
       materially affected due to improper acceptance of nomination of
                                                                                   D
       respondent No.1?
       (7) Relief and costs?
       8. As issue Nos.I and 2 extracted above, have been answered in
favour of the returned candidate and there is no cross appeal, it is only
the remaining issues that survive for consideration. All the said issues           E
center round the question of improper acceptance of the nomination
form of the returned candidate. Jn this regard, issue No.6 which raises
the question of material affect of the improper acceptance ofnomination
of the returned candidate on the result of the election may be specifically
noticed.
                                                                                   F
       9. Under Section 100 (l)(d), an election is liable to be declared
void on the ground of improper acceptance of a nomination if such
improper acceptance of the nomination has materially affected the result
of the election. This is in distinction to what is contained in Section
100( I)(c) i.e. improper rejection of a nomination which itself is a sufficient
ground for invalidating the election without any further requirement of            G
proof of material effect of such rejection on the result of the election.
The above distinction must be kept in mind. Proceeding on the said basis,
we find that the High Court did not endeavor to go into the further
question that would be required to be determined even if it is assumed
that the appellant-returned candidate had not filed the electoral roll or a        H
80             SUPREME COURT REPORTS                           [2016] 9 S.C.R.



A    ce11ified copy thereof and, therefore, had not complied with the mandatory
     provisions of Section 33(5) of the 1951 Act. In other words, before setting
     aside the election on the above ground, the High Court ought to have
     carried out a further exercise, namely, to find out whether the improper
     acceptance of the nomination had materially affected the result of the
     election. This has not been done notwithstanding issue No.6 framed
B
     which is specifically to the above effect. The High Court having failed
     to determine the said issue i.e. issue No.6, naturally, it was not empowered
     to declare the election of the appellant returned candidate as void even
     if we are to assume that the acceptance of the nomination of the returned
     candidate was improper.
c           l 0. An argument has been advanced on behalf of the respondent-
     election petitioner that the High Court has also found the election to be
     void on the grounds mentioned in Section l 00(1 )(a). In this regard it has
     been submitted that the failure of the returned candidate to furnish the
     electoral roll of the constituency where his name appears as a voter or
D    the certified copy thereof would, by itself, establish that he was not
     qualified to take part in the election as he had failed to prove that he is a
     voter. Therefore his election was liable to be declared void under Section
     IOO(l)(a) of the 1951 Act which the High Court had done.
            11. Under Section l 00(1 )(a) the election of the returned candidate
E    is liable to be declared void if, inter alia, he was not qualified for
     membership of Parliament or the State Legislature as may be. Section 5
     of the 1951 Act deals with qualifications for membership of a Legislative
     Assembly of a State which, inter alia, requires a candidate to be an
     elector of any Assembly constituency of the State. To declare an election
     void under Section I 00(1 )(a), it must, therefore, be established that the
F    returned candidate is not a voter of any assembly constituency of the
     State.
            12. After the receipt of nomination, the election petitioner has
     objected to the acceptance of the nomination of the appellant-returned
     candidate on the ground that the returned candidate was a Government
G    servant and therefore disqualified from contesting the election. This was
     rejected by the Returning Officer on 11.11.2013 holding that the returned
     candidate had duly submitted his resignation which was accepted before
     the date of filing of nomination. No objection to the effect that the
     returned candidate was not qur lified to contest the election as he was
H    not a voter of any assembly Constituency of the State was raised in the
 RAJENDRA KUMAR MESHRAM v. VANSHMANI PRASAD                                      81
       VERMA AND ANR. [RANJAN GOGOi, J.]

objection filed. Neither was any objection taken to the effect that the           A
returned candidate was not eligible to participate in the election as he
had not furnished the electoral roll of the Constituency in which he was
a voter or a certified copy thereof. However, in the election petition
filed, it was pleaded in para 1.11 of the election petition, (extracted above)
that the returned candidate had "failed to furnish a certified copy of the
                                                                                  B
voter Iist to entitle him to contest the election from Devsar constituency
as he is registered voter of80, Singrauli constituency and without filing
the certified copy of relevant part of voter list he was not eligible to
contest from other constituency." There was no pleading at all to the
effect that the appellant is not a voter of any assembly constituency and
therefore is not qualified.                                                       c
        13. From the above, it is clear that it was not the case of the
respondent-election petitioner that the appellant-returned candidate was
not qualified to contest the election. It is only before this Court, and that
too in the oral arguments made, that it has been urged, by relying on the
order of the High Court, that the returned candidate was not qualified to         D
contest the election under Section 100(1 )(a) of the 1951 Act and therefore
his election was rightly set aside by the High Court.
        14. The trial of an election petition, as per Section 87of1951 Act
has to be in accordance with the provisions of the Code of Civil Procedure,
1908. When no pleadings that the election of the returned candidate was           E
void on grounds mentioned in Section I OO(l)(a) were made and no issue
on this score was struck and no opportunity to the returned candidate to
adduce relevant evidence was afforded, the High Court, in our considered
view, could not have found that the election of the returned- candidate
was void under Section lOO(l)(a). In fact, from a reading of para 1.11 of
the election petition as extracted above, it clearly appears that the election    F
petitioner had stated that the appellant-returned candidate is a voter of
No.80 Singrauli constituency but he had omitted to enclose the electoral
roll or a certified copy thereof along with his nomination papers which
made him ineligible to contest the election. This part of the pleading
must be seen in the light of the provisions of Section 33(4) and 33(5) of         G
the 1951 Act. Under-Section 33(4) the returning officer must satisfy
himself that a candidate's name and electoral roll numbers is the same
as claimed/entered in the nomination paper. If the candidate is a voter
of the same constituency from which he seeks election, there is no
difficulty the electoral rolls would be readily available with the returning
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82                SUPREME COURT REPORTS                         (2016] 9 S.C.R.


A    officer. But if the candidate is a voter of another constituency, then
     Section 33(5) requires him to enclose along with the nomination or atthe
     time of scrutiny, the electoral roll or certified copy of the same pertaining
     to that constituency. The entire case of the election petitioner as pleaded
     is that the appellant-returned candidate was a voter of another
     constituency i.e. No.80 Singrauli constituency but he had not enclosed
B
     or produced the electoral roll of that constituency or a certified copy
     thereof thereby making him ineligible to contest the election. '
            15. In view of the state of the pleadings as noticed above; the
     issues framed and the evidence led by the parties, we cannot agree with
     the High Court that the respondent-election petitioner had made out a
C    case for declaration that the result of the election in favour of the returned
     candidate was void under Section IOO(l)(a) of the 1951 Act. Having
     reached our conclusion on above said basis, it is not necessary to go into
     the question raised on behalf of the respondent-election petitioner that
     failure to produce the copy of the electoral roll of the constituency in
D    which a candidate is a voter or a certified copy thereof, by itself, would
     amount to a proof of lack of/absence of qualification under Section 5 of
     the 1951 Act. All that would be necessary for us to say in this regard is
     that any such view would not be consistent with the legislative intent
     expressed by the enactment of two separate and specific provisions
     contained in Section 100 (1 )(a) and 100 (J)(d) of the 1951 Act.
E
            16. Though a number of precedents have been cited on behalf of
     the respondent-election petitioner to sustain the arguments advanced, it
     will not be necessary for us to take any specific note of the principles of
     Jaw laid down in any of the said cases inasmuch as all the said cases
     relate to rejection of nominations on account of failure to comply with
F    the provisions of Section 33(5) of the Act of 1951 which is not in issue
     before us in the present appeal.
            17. Consequently and forthe aforesaid reasons, we cannot sustain
     the order of the High Court. Accordingly, the same is set aside and the
     appeal is allowed. The election of the appellant-returned candidate is
G    declared to be valid in Jaw.
     Ankit Gyan                                                      Appeal allowed.