SRI MAIREMBAM PRITHVIRAJ @ PR!THVIRAJ SINGH .versusSHRI PUKHREM SHARATCHANDRA SINGH

                          [2016] 9 S.C.R. 687



    SRI MAIREMBAM PRITHVIRAJ @ PR!THVIRAJ SINGH .                           A
                                   v.
          SHRI PUKHREM SHARATCHANDRA SINGH
                    (Civil Appeal No. 2649 of2016)
                         OCTOBER 28, 20 I 6                                 B

        [ANIL R. DAVE AND L. NAGESWARA RAO, JJ.]
       Election Laws:
         Legislative Assembly election - Only two candidates contesting
 the election in the constituency - Election petition by the candidate      c
 who lost the election, challenging the election of returned
 candidate - Alleging false declaration as regards his educational
 qualification and improper acceptance of his nomination - Election
  petitioner also sought that he should be declared elected - High
  Court declared the election of the returned candidate as void -
                                                                            D
  However, the High Court refused to declare the election petitioner
  as elected - Cross-appeal by the election petitioner and the returned
  candidate - Held: The informatio11 provided by the returned
  candidate in Form 26 regarding his educational qualification would
  amount to false declaration - The false declaration regarding
  educational qualification is of substantial character - Mere finding      E
. that there has been an improper acceptance of the ·nomination is
  not sufficient for a declaration that the election is void uls.
  JOO(l}(d) - There has to be further proof and pleading that the
  result of the returned candidate was materially affected - But such
  proof is not required if there are only two candidates bf the fray -
                                                                            F
  Jn the present case, it was not necessmy for the election petitioner
  to prove that result of the election, in so far as it concerned the
  returned candidate has been materially affected by the improper
  acceptance of his nomination as there were only two candidates
  contesting the election - The High Court in exercise of its
  discretionary powe1; rightly refused to declare the election petitioner   G
  as elected after the election of the returned candidate was declared
  void - The election petitioner since had contested the election on
  behalf of Nationalist Congress Party and after result of the election
  having joined Bhartiya Jania Party was not entitled for such
  declaration - Representation of the People Act, 1951 - ss.JOO(l)(d),
                                                                            H
                                687
688            SUPREME COURT REPORTS                      [2016] 9 S.C.R.


A     36(4), 53(2) and 80A.
             High Court - Inherent powers - Exercise of - While hearing
      election petition - Held: High Court hearing an election petition is
      not an 'authority• and it remains the High Court while trying an
      election petition - Inherent powers of High court are not taken
 B    away while adjudicating election disputes - Representation of the
      People Act, 1951 - ss. 53(2) and 80A.
            Dismissing the appeals, the Court
            HELD:

 c          Civil Appeal No. 2649 of 2016:
            1.1 The Election Commission of India issued a press note
      on 28.06.2002 in which there was a reference to the judgment of
      this Court in Union ofIndia v. Association for Democratic Reforms,
      in which it was held that information on five aspects has to be
D     provided to the voter. One of the five aspects pertains to the
      educational qualification of the candidates. An order was issued
      by the Election Commission of India on 28.06.2002 directing that
      full and complete information relating to the five aspects which
      were mentioned in the judgment has to be furnished. Providing
      incomplete information or suppression of material information
 E    on any of the five aspects was to be treated as a defect of
      substantial character by the Returning Officers. [Para 15)(699-
      E-F]
            1.2 Every voter has a fundamental right to know about the
      educational qualification of a candidate. It is also clear from the
 F    provisions of the Act, Rules and Form 26 that there is a duty cast
      on the candidates to give correct information about their
      educational qualifications.[Para l 7][700-B-C]
          1.3 The declaration relating to educational qualification
   of the appellant in the affidavit cannot be called a clerical error.
 G It is not an error committed once. Since 2008, the Appellant was
   making the statement that he has an MBA degree. The
   information provided by him in the affidavit filed in Form 26 would
   amount to a false declaration. He was given an opportunity by
   the Returning Officer to produce the relevant document in
   support of his declaration. At least at that point of time he should
 H
  SRI MAIREMBAM PRITHVIRAJ@PRITHVIRAJ SINGH v. SHRI                    689
            PUKHREMSHARATCHANDRASINGH

have informed the Returning Officer that an error crept into the        A
declaration. He did not do so. The false declaration relating to
his educational qualification cannot be stated to be not of a
substantial character. [Para 18)(701-C-E)
     Kisan Shankar Kathore v. Arun Dattatray Sawant 2014
     (14) sec 162; Union of India V. Association for                    B
     Democratic Reforms 2002 (5) SCC 294 : 2002 (3) SCR
     696; Resurgence India v. Election Commission of India
     and Anr. 2014 (14) SCC189 : 2013 (9) SCR 360 -
     relied on.
      2.1 There is a difference between improper acceptance of c
a nomination of a returned candidate and improper acceptance
of nomination of any other candidate. There is also a difference
between cases where there are only two candidates in the fray
and a situation where there are more than two candidates
contesting the election. If the nomination of a candidate other
than the returned candidate is found to have been improperly D
accepted, it is essential that the election Petitioner has to plead
and prove that the votes polled in favourof such candidate would
have been polled in his favour. On the other hand, ifthe jpiproper
acceptance of nomination is of the returned candidate, there is
no necessity of proof that the election has been materially affected E
as the returned candidate would not have been able to rontest
the election if his nomination was not accepted. It is not necessary
for the respondent to prove that result of the election in so far as
it concerns the returned candidate has been materially affected
by the improper acceptance of his nomination a~ there were only
two candidates contesting the election and if the appellant's· F
nomination is declared to have been improperly accepted, his
election would have to be set aside without any further enquiry
and the only candidate left in the fray is entitled to be declared
elected. [Para 22)(706-A-D]
      2.2 Thus; mere finding that there has been an improper            G
acceptance of the nomination is not sufficient for a declaration
that the election is void under Section lOO(l)(d). There has to
be further pleading and proof that the result of the election of the
returned candidate was materially affected. But, there would be
no necessity of any IJroof in the event of the nomination of a          H
690            SUPREME COURT REPORTS                       [2016] 9 S.C.R.


A     returned candidate being declared as having been improperly
      accepted, especially in a case where there are only two candidates
      in the fray. If the returned candidate's nomination is declared to
      have been improperly accepted it would mean that he could not
      have contested the election and that the result of the election of
      the returned candidate was materially affected need not be proved
 B
      further. [Para 23][708-G-H; 709-A-B]
      Civil Appeal No. 2829 of 2016:
             3. The High Court rightly refused to grant the relief to the
      appellant that he should be declared as elected. The High Court
c     held that the appellant, after result of the election, having joined
      BJP was not entitled for the declaration, as he had contested the
      election on behalf of NCP. The High Court held so taking into
      account the spirit of law as expressed in Paragraph No.2 of the
      JO•h Schedule of the Constitution of India. It is not correct to say
      that in view of s. 53(2) of the Act, the appellant should have been
 D    declared duly elected as he was the only person remaining in the
      fray after the election of respondent/returned candidate was
      declared void. The High court is conferred with the jurisdiction
      to try an election petition u/s. 80(A) of the Act. The High Court
      hearing an election petition is not an 'authority' and that it remains
 E    the High Court while trying an election petition. The inherent
      power of the High Court is not taken away when the election
      disputes arc adjudicated. The power of High Court is not fettered
      by s. 53(2). The High Court has taken into consideration an
      anomalous situation that would arise by a candidate belonging to
      one party being declared elected after having crossed the floor.
 F    There is no need to interfere with the discretion exercised by
      the High Court. [Paras 27, 28, and 29][710-D-II; 711-A, C-D]
            Durai Muthuswami v. N. Nachiappan and Ors. 1973
            (2) SCC 45 : 1974 (1) SCR 40; Jagjit Singh v. Dharan1
            Pal Singh 1995 Sut>P (1) SCC 422; Vashist Narain
 G          Sharma v. Dev Chandra 1955 (1) SCR 509; Kisan
            Shankar Kathore v. Arun Datta/ray Sawant 2014 (14)
            SCC 162 : 2014 (7) SCR 258 - relied on.
            Peoples Union for Civil Liberties (PUCL) v. Union of
            India 2003 (4) sec 399 : 2003 (2) SCR 1136;
H
  SRI MAIREMBAM PRITHVIRAJ@ PRITHVIRAJ SINGH v. SHRI                  691
            PUKHREM SHARATCHANDRA SINGH

     Ms. Meenakshi Arora Hari Krishna Lal v. Babu Lal                  A
     Marandi 2003 (8) SCC 613 : 2003 (4) Suppl. SCR
     1170; Magani Lal Manda! v. Bis/11111 Deo Bhandari
     2012 (3) SCC 314 : 2012 (1) SCR 527; Shambhu
     Prasad Sharma v. Charandas Mahant and Ors. 2012
     (11) SCC 390 : 2012 (6) SCR 356; T. Deen Dayal v.
                                                                       B
     High Court ofA.P. 1997 (7) SCC 535 : 1997 (4) Suppl.
     SCR 39; Hari Shanker Jain v. Sonia Gandhi 2001 (8)
     SCC 233 : 2001 (3) Suppl. SCR 38 - referred to.
                         Case Law Reference
1974 (1) SCR 40                 relied on          Para 6              c
1995 Sur>P (1) sec 422          relied on          Paras 7, 22
2002 (3) SCR 696                relied on          Para 7
2003 (2) SCR 1136               referred to        Para 7
2014 (7) SCR 258                relied on          Paras 7, 16, 22     D
2013 (9) SCR 360                relied on          Para 7.
2001 (3) Suppl. SCR 38          referred to        Paras 7, 28
2012 (1) SCR 527                referred to        Para 19
2012 (6) SCR 356                referred to        Para 19              E
1955 (1) SCR 509                relied on          Para 22
1997 (4) Suppl. SCR 39          referred to        Para 29
     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2649
of2016.                                                                 F
     From the Judgment and Order dated 29.02.2016 of the High Court
ofManipur at Imphal in Election Petition No. I of2012
                                WITH
      C. A. No. 2829 of 2016.                                           G
     V. Giri, Sr. Adv., Sapam Biswajit Meitei, Naresh Kumar Gaur,
Manav Vohra, Ms. Punam Kumari, Advs. for the Appellant.
       Ms. Meenakshi Arora, Sr. Adv., Lenin Hijam, Vasav A., Rahul
Joshi, A. D. Tamboli, S. Gowthaman, Advs. for the Respondent.
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692             SUPREME COURT REPORTS                           [2016] 9 S.C.R.



A           The Judgment of the Court was delivered by
            L. NAGESWARA RAO, J.
             CIVIL APPEAL No. 2649 of 2016
             I. The Appellant has filed this appeal aggrieved by the judgment
B     of the High Court of Manipur at Imphal by which his election to the
      Manipur Legislative Assembly from MoirangAssembly constituency was
      declared as void.
             2. A Notification was issued for election to the I O•h Manipur
      Legislative Assembly on 04.01.2012. The Appellant belonging to the Indian
c     National Congress (INC) and the Respondent who was sponsored by
      the National Congress Party (NCP) filed their nominations within the
      time prescribed. There was no other nomination filed. The Respondent
      objected to the nomination of the Appellant at the time of scrutiny on the
      ground that a false declaration relating to educational qualification was
      made by the Appellant. The Returning Officer directed the Appellant to
D     submit documents in proof of his educational qualification as declared in
      the affidavit filed under Form 26. The Appellant failed to produce any
      document to prove his educational qualification in spite of which the
      Returning Officer accepted the nomination of the Appellant. Polling took
      place on 28.01.2012 and the counting of votes was held on 06.03.2012.
E     The result was declared on the same day. The Appellant secured 14,521
      votes and the Respondent secured 13,363 votes. The Appellant was
      declared elected as MLA, Moirang Constituency.
              J. The Respondent challenged the election of the Appellant by
      filing an election petition in the Guwahati High Court seeking a declaration
 F    that the Appellant's election was null and void, that the Respondent should
      be declared as duly elected and that a criminal proceeding should be
      directed to be initiated against the Appellant under Section 125-A and
      127 of the Representation of the People Act, 1951 (hereinafter referred
      to as 'the Act'). Apa1t from the ground of improper acceptance of
      nomination, the Respondent also alleged corrupt practices against the
G     Appellant.
            4. The Appellant denied the allegation of false declaration.
      According to the Appellant, the declaration made by him that he passed
      Master of Business Administration (MBA) in 2004 from Mysore
      University was a clerical error. The Respondent abandoned the allegation
H
  SRI MAIREMBAM PRITHVIRAJ@ PRITHVIRAJ SINGH v. SHRI                             693
  PUKHREM SHARATCHANDRA SINGH [L. NAGESWARA RAO, J.]

of corrupt practices and other electoral malpractices during the trial of         A
the election petition in the High Court. The High Court framed six issues
which are as follows:
      i) "Whether the Returning Officer of 27'" Moirang AC has
          illegally accepted the nomination paper of the respondent
          or not?                                                                 B
       ii) Whether the election of the respondent had been materially
          affected by the acceptance of the nomination paper of the
          respondent by the R.O. of 27r1, Moirang AIC or not?
       iii) Whether the respondent had filed false affidavit in respect
           of the highest education qualification in the Form, in which           c
           the respondent had mentioned "MBA Mysore University"
           or whether it was merely a clerical error?
       iv) Whether the petition lacks material facts or not?
       v) Whether the election petition is liable to be dismissed for
                                                                                  D
          not putting the words "attested to be true copy of the
          petition" on each and every page of the petition by the
          petitioner himself or not; or on any of the defects raised
          by the respondent in his written statement?
       vi) Whether the petitioner is entitled to the relief claimed in
                                                                                  E
           the writ petition?"
       5. Issue No. 5 pertains to attestation of the petition not being
made properly. The objection raised by the Appellant to the maintainability
of the election petition was that only the front page of the election petition
had the words "Attested to be true copy." Issue No. 5 was answered ill'
                                                                                   F
favour of the Respondent. The High Court considered the main
controversy pertaining to the filing of false affidavit regarding the
educational qualification by the Appellant in a detailed manner. There is
no doubt that the Appellant filed Form 26 in which he mentioned his
educational qualification as MBA from Mysore University in 2004. After
careful consideration of the material on record and various judgments             G
cited by the parties, the High Court concluded that the declaration made
by the Appellant in Form 26 about his educational qualification as MBA
from Mysore University was false. The plea of the Appellant that the
defect in Form 26 was due to a clerical error was rejected. The contention
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694             SUPREME COURT REPORTS                          . [20 I 6] 9 S.C.R.



A     of the Appellant that providing wrong information about the educational
      qualification was not a defect of substantial character was also rejected.
      The Appellant contended that the Respondent failed to plead and prove
      that the result was 'materially affected' as required under Section I 00
      (1 )(d) of the Act. The High Court did not accept the said contention on
      the ground that there were only two candidates in the fray in which case
B
      it was not necessary to prove that the result of election of the returned
      candidate was materially affected. The High Court further held if it is
      found that the Appellant's nomination was improperly accepted, the result
      of his election stood automatically affected materially. The High Court
      on the basis of the above reasons declared the election of the Appellant
c     as void. The Appellant has filed this appeal challenging the same.
             6. We have heard Mr. V. Giri, learned Senior Counsel for the
      Appellant and Ms. Meenakshi Arora, learned Senior Counsel for the
      Respondent. Mr. Giri submitted that the declaration pertaining to the
      educational qualification of the Appellant was merely a clerical error
 D    and cannot be termed as a false declaration. In any event, the declaration
      of educational qualification is not a defect of substantial nature warranting
      rejection of his nomination. Mr. Giri also submitted that the election
      petition was filed under Section 100 (I) (d) (i) and (iv) of the Act. He
      stated that there is neither pleading nor proof in the election petition that
      the improper acceptance of the Appellant's nomination had materially
 E    affected the result. According to Mr. Giri, the Appellant's election cannot
      be set aside on the ground of improper acceptance of his nomination
      without the requirement of Section 100 ( 1) (d) of the Act being satisfied.
      He referred to Dur(li Mutlwswami v. N. Nac/1i(lppw1 (Int/ Ors.
      reported in 1973 (2) sec 45 and submitted that the said judgment
 F    should be restricted to the facts of that case. He also attempted to
      distinguish the said judgment as not applicable to the facts of this case
      by submitting that it was a case of disqualification under Section 9-A of
      the Act. He further submitted that the said case was one filed under
      Section 100 (I) (a) of the Act. He contended that there is no need for
      pleading or proving that the result was materially affected ifthe election
G     is challenged under Section 100 (I) (a) to ( c) whereas it is compulsory in
      a petition filed under Section I 00 (I) (d).
           7. Ms. Meenakshi Arora, learned Senior Counsel, argued that the
      Respondent pleaded in the election petition that the result of the election
      was materially affected by the improper acceptance of the nomination
H
  SRI MAIREMBAM PRITHVIRAJ@ PRITHVIRAJ SINGH v. SHRI                        695
  PUKHREM SHARATCHANDRA SINGH [L. NAGESWARA RAO, J.]

of the Appellant. She took us through the pleadings and evidence, both       A
oral and documentary, to contend that the declaration of educational
qualification by the Appellant was not a mistake. She submitted that the
same declaration was made by the Appellant even when he contested
the earlier election to the Legislative Assembly in 2008. She also
highlighted the contradictory stands relating to the declaration taken by
                                                                             B
the Appellant. She submitted that it was not necessary to show that the
result of the election was materially affected when there were only two
contesting candidates for one seat. She relied upon the judgment in
Durai Muthuswami (supra) which according to her, was approved in
Jagjit Singh v. Dlwram Pal Singh, reported in 1995 Supp (1) SCC
422. She further relied upon Union of India v. Association for               c
Democratic Reforms, reported in 2002 (5) SCC 294, People's
Union for Civil Liberties (PUCL) v. Union of India, re11orted in
2003 (4) SCC 399, Kisan_ Shankar Kathore v. Arun Dattatray
Sawant reported in 2014 .(14) SCC 162 and Resurgence India v.
Election Commission oflndia and Anr. reported in 2014 (14) SCC
                                                                             D
189 in support of her submission that a voter has a right to know about
the educational qualification of the candidate and any false or mis-
declaration would result in rejection of the nomination of the candidate.
Ms. Meenakshi Arora also cited Hari Krishna Lal v. Babu Lal
Marandi re11orted in 2003 (8) SCC 613 to contend that the false
declaration relating to the educational qualification of a candidate is a     E
defect of substantial character.
      8. Two issues fall for our consideration in this appeal which are:
      (a)Whether a false declaration relating to the educational
         qualification is a defect of substantial character warranting
         rejection of a nomination?                                           F

      (b )Whether it is necessary to plead and prove that the result was
          materially affected when the nomination of the returned
          candidate was found to have been improperly accepted, moreso,
          when there are only two candidates contesting the election?
                                                                             G
      9. Chapter I of Part V of the Act deals with the nomination of
candidates. Section 33 of the Act provides for presentation of nomination
paper and requirements of a valid nomination. A nomination paper
complete in the prescribed form, signed by a candidate and by an elector
of the constituency as proposer should be delivered to the Returning
                                                                             H
696             SUPREME COURT REPORTS                          [2016) 9 S.C.R.



A     Officer within the prescribed period. Section 33-A which was inserted
      by Act 72 of 2002 with effect from 24.08.2002 contemplates that a
      candidate has to provide additional information, apart from the information
      provided by him under Section 33 (I). The information mentioned in
      Section 33-A relates to the criminal antecedents of a candidate. Section
      36 deals with scrutiny of nomination. Section 36(4) which is relevant for
 B
      adjudication of this case is as follows:
            "36. Scrutiny of nomi11ation. -(4) The Returning Officer
            shall not reject any nomination paper on the ground of
            any defect which is not of a substantial character. "
             I 0. Rule 4 (A) of the Conduct of Election Rules, 1961 which was
c     inserted with effect from 03.09.2002 reads as under:
            "f4A. Form of <tffidllvit to be filed lit lite time of
            delivering 11omination paper.-The candidate or his
            proposer, as the case may be, shall, at the time of
            delivering to the returning officer the nomination paper
D
            under subsection {I) of section 33 of the Act, also deliver
            to him an affidavit sworn by the candidate before a
            Magistrate of the first class or a Notary in Form 26.}"
             11. A candidate has to file an affidavit along with his nomination
      paper as prescribed in Form 26 in which one of the columns pertains to
 E    the educational qualification. Grounds for declaring the election to be
      void are provided in Section I 00 of the Act which is as under:
             "100. Gro1111ds for declllring election to be void.-
             [(I) Subject to the provisions of sub-section (2) if 3
            [the High Cow:tJ is qf opinion-
 F
            (a) that on the date of his election a returned candidate was
               not qualified, or was disqualified, to be chosen to fill the ·
               seat under the Constitution or this Act 9 [or the Govern111ent
                qf Union Territories Act, 1963 (20 qf 1963)]; or
            (b) that any corrupt practice has been co111111itted by a returned
 G
                candidate or his election agent or by any other person
                with the coi1se111 of a returned candidate or his election
                agent; or
            (c) that any nomination has been improperly rejected; or
H           (d)that the result of the election, in so far as it concerns a
 SRI MAIREMBAM PRITHVIRAJ@ PRITHVIRAJ SINGH v. SHRI                            697
 PUKHREM SHARATCHANDRA SINGH [L. NAGESWARA RAO, J.]

         returned candidate, has been materially affected-                      A
      (i)by the improper acceptance or any nomination, or
      (ii}by any corrupt practice committed in the interests of the
          returned candidate 1 [by an agent other than his election
          agent], or
                                                                                B
      (iii)by the improper reception, refusal or rejection of any vote
          or the reception of any vote which is void, or
      (iv)by any non-compliance with the provisions of the
         Constitution or of this Act or of auy rules or orders made
         under this Act,                                                        c
      [the High Court] shall declare the election of the
      returned candidate to be void.]
           [(2)] If in the opinion of 2 [the High Court], _a
      returned candidate has been guilty by an agent, other
      than his election agent, of any corrupt practice 4 ***                    D
      but 2 [the High Court] is satisfied-
      (a)that no such corrupt practice was committed at the election
         by the candidate or his election agent, and every such
         corrupt practice was committed contrary to the orders, and
         5 [without the consent]. of the candidate or his election              E
         agent; --
      6 *****
      (c)that the candidate and his election agent took all reasonable
          means for preventing the commission of corrupt 7 ***
          practices at the election; and                                        F

      (d)that in all other respects the election was free from any
         corrupt 7 ***practice on the part of the candidate or any
         of his agents,
      then 2 [the High Court] may decide that the election of                   G
      the returned candidate is not void. "
       12. Section 125-A prescribes penalty for filing false affidavit which
is reproduced as under:
      "[125A. Pe11alty for jili11g fttlse ttffitlavit, etc.-
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698            SUPREME COURT REPORTS                            [20 I 6] 9 S.C.R.



A           A candidate who hi111self or through his proposer, with
            intent to be elected in an election,-
            (i) fails to furnish i1ifor111atio11 relating to sub-section (1) of
                section 33A; or
            (ii) give false information which he knows or has reason to
B               believe to be false; or
            (iii)conceals any i11for111atio11, in his 110111i11atio11 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,
c               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}"
            I 3. Sir Winston Churchill underlining the importance of a voter in
 D    a democratic form of Government stated as follows:
            "At the bottom of all tributes paid to democracy is the
            little 111an, walking into a little booth, with a little pencil,
            making a little cross on a little bit ofpaper - no amount
            of rhetoric or voluminous discussion can possibly
 E          diminish the overwhelming importance of the point. "
             14. In Union of India v. Association for Democratic Reforms
      (supra) this Court held that the voter has a fundamental right to
      information about the contesting candidates. The voter has the choice
      to decide whether he should cast a vote in favour of a person involved in
 F    a criminal case. He also has a right to decide whether holding of an
      educational qualification or holding of property is relevant for electing a
      person to be his representative. Pursuant to the judgment in Union of
      India v. Association for Democratic Reforms (supra) Section 33-A was
      inserted in the Representation of the People Act providing for right to
      additional inforn1ation by an Ordinance. The challenge to the said
 G
      Ordinance was dealt with by this Court in People's Union for Civil
      Liberties (PUCL) v. Union of India (supra) in which it was held as
      follows:
            "78. What e111erges from the above discussion can be
            su111111arised thus:
 H
  SRI MAIREMBAM PRITHVIRAJ@ PRITHVIRAJ SINGH v. SHRI                             699
  PUKHREM SHARATCHANDRA SINGH [L. NAGESWARA RAO, J.]

       (D) The contention that as there is no spec(fic                            A
      fundamental right conferred on a voter by any statutory
      provision to know the antecedents of a candidate, the
      directions given by this Court are against the statutory
      provisions is. on the face of it, without any substance.
      In an election petition challenging the validity of an
                                                                                  B
      election of a particular candidate, the statutory
      provisions would govern re~pective rights of the parties.
      However, voters' funda111ental right to know the
      antecedents of a candidate is independent of statulory
      rights under the election law. A voter is first citizen of
      this country and apart from statutory rights, he is having                  c
      funda111ental rights conferred by the Constitution.
      Members of a democratic society should be s1!1Jicie111Zv
      informed so that they may cast their votes i11telligentZv
      in favour of persons who are to govern them. Right to
      vote would be meaningless unless the citizens are well
      informed about the antecedents of a candidate. There
                                                                                  D
      can be little doubt that exposure to public gaze and
      scrutiny is one of the surest means to cleanse our
      democratic governing system and to have competent
      legislatures. "
       15. It is i·elevant to mention that the Election Commission of India       E
issued a press note on 28.06.2002 in which there was a reference to the
judgment of this Court in Union oflndia v. Association for Democratic
Reforms in which it was held that information on five aspects has to be
provided to the voter. One of the five aspects pertains to the educational
qualification of the candidates. An order was issued by the Election              F
Commission of India on 28.06.2002 directing that full and complete
information relating to the five aspects which were mentioned in the
judgment has to be furnished. Providing incomplete information or
suppression of material infonnation on any of the five aspects was to be
treated as a defect of substantial character by the Returning Officers.
                                                                                  G
       16. In Resurgence India v. Election Commission oflndia and Anr.
(supra) this Court held that every candidate is obligated to file an affidavit
with relevant information with regard to their criminal antecedents, assets
and liabilities and educational qualification. The fundamental right under
Article 19 (I) (a) of the voter was reiterated in the said judgment and it
                                                                                  H
700             SUPREME COURT REPORTS                            [2016) 9 S.C.R.



A     was held that filing of affidavit with blank particulars would render the
      affidavit as nugatory. In Kisan Shankar Kathore v. Arun Dattatray
      Sawant reported in 2014 (14) SCC page 162 this Court considered
      the question as to whether it was incumbent upon the Appellant to have
      disclose the information sought for in the nomination form and whether
      the non-disclosure thereof render the nomination invalid and void. It
B
      was held that non-furnishing of the required information would amount
      to suppression/non-disclosure.
              17. It is clear from the law laid down by this Court as stated
      above that every voter has a fundamental right to know about the
      educational qualification of a candidate. It is also clear from the provisions
c     of the Act, Rules and Form 26 that there is a duty cast on the candidates
      to give correct information about their educational qualifications. It is
      not in dispute that the Appellant did not study MBA in the Mysore
      University. It is the case of the Appellant that reference to MBA from
      Mysore University was a clerical error. It was contended by the
D      Appellant that he always thought of doing MBA by correspondence
       course from Mysore University. But, actually he did not do the course.
       The question which has to be decided is whether the declaration given
       by him in Form 26 would amount to a defect of substantial nature
      warranting rejection of his nomination. Section 36 (4) of the Act mandates
      that the Returning Officer shall not reject a nomination paper on the
 E     ground of any defect which is not of a substantial character. The
      'declaration made by the Appellant in Form 26, filed in 2012 is not a
      clerical error as contended by him. The Appellant contested election to
      the same constituency in 2008 and in the affidavit filed by him in Form
      26 he declared that he passed MBA from Mysore University in 2004.
 F    In the affidavit filed by him in this election petition by way of examination-
       in-chief, the Appellant stated that his nomination paper and the enclosed
      affidavit were prepared and filed by his counsel Chakpam Bimolchandra
       Singh on the instructions of his agent Ph. Shamu Singh. He also stated
      that his counsel filled the prescribed affidavit in his own hand-writing.
      The Appellant also stated that he signed the affidavit without reading the
G     contents and he came to know about the error only when the Respondent
      raised his objection to the nomination. The Appellant further stated that
      he was working in Projeon, Infosys Company and IBM till 2007 and
      because of his job many local friends and elders thought that he was an
      MBA degree-holder. His election agent also thought that he was holding
H
  SRI MAIREMBAM PRITHVIRAJ@ PRITHVIRAJ SINGH v. SHRI                           701
  PUKHREM SHARATCHANDRA SINGH [L. NAGESWARA RAO, J.]

an MBA degree due to which he instructed the Advocate Chakpam                   A
Bimolchandra Singh to fill up column 9 of the affidavit by stating that the
Appellant is an MBA degree-holder. In his cross-examination, the
Appellant gave evasive replies to the questions relating to his educational
qualification. He stated that he does not remember whether he had
undergone MBA from Mysore University and he does not remember
                                                                                B
whether he possesses MBA degree. Chakpam Bimolchandra Singh
who was examined as DW-3 in his cross-examination denied having
filled up the entries in Form 26. He stated that he entered the educational
qualifications of the Appellant on the basis of instructions given by the
election agent Shamu Singh. He also stated that he was not present
before the Oath Commissioner when the Appellant signed the affidavit.           c
        18. The contention of the Appellant that the declaration relating to
his educational qualification in the affidavit is a clerical error cannot be
accepted. It is not an error committed once. Since 2008, the Appellant
was making the statement that he has an MBA degree. The information
provided by him in the affidavit filed in Form 26 would amount to a false       D
declaration. The said false declaration cannot be said to be a defect
which is not substantial. He was given an oppo1tunity by the Returning
Officer to produce the relevant document in support of his declaration.
At least at that point of time he should have informed the Returning
Officer that an error crept into the declaration. He did not do so. The
false declaration relating to his educational qualification cannot be stated    E
to be not of a substantial character. It is no more res integra that every
candidate has to disclose his educational qualification to subserve the
right to information of the voter. Having made a false declaration relating
to his educational qualification, the Appellant cannot be permitted to
contend that the declaration is not of a substantial character. For the          F
reasons stated supra, we uphold the findings recorded by the High Court
that the false declaration relating to the educational qualification made
by the Appellant is substantial in nature.
       19. Having answered the first question against the Appellant, we
proceed now to deal with the next point. Section I 00 ( 1) (a) to ( c) deals    G
with disqualification, corrupt practices and improper rejection of
nominations respectively which are _grounds for setting aside the election.
The sine qua 11011 for setting aside an election under Section l 00 (I) (d)
is that the result of the election, in so far as it concerns a returned
candidate, has been materially affected. The contention of Mr. Giri,
                                                                                H
702            SUPREME COURT REPORTS                          [2016) 9 S.C.R.


A  learned Senior Counsel for the Appellant is that even if it is held that the
   nomination of the appellant was improperly accepted, his election cannot
   be set aside in the absence of any pleading or proof that the result was
   materially affected by the improper acceptance of the nomination. He
   relied upon Magani Lal Manda! v. Bishnu Deo Bhandari, reported
   in 2012 (3) sec page 314 to contend that every defect cannot be a
 B ground for setting aside an election under Section I 00 (I) (d) without
   further proof that it had materially affected the result of the returned
   candidate. He also referred to Shambhu Prasad Sharma v. Charandas
   Mahant and Ors. reported in 2012 (11) SCC nage 390 in which it
   was held as follows:
c           "20. Coming to the allegatio11 that other candidates had
            also not submitted affidavits in proper.format, rendering
            the acceptance of their 11ominatio11 papers improper.
            we need to point out that the appellant was required to
            not only allege material facts relevant to such improper
D           acceptance, but .fi1rther assert that the election of the
            returned candidate had been materially affected by such
            acceptance. There is no such assertion in the election
            petition. Mere improper acceptance assuming that any
            such improper acceptance was supported by assertion
            of material facts by the appellant-petitioner. would not
 E          disclose a cause of action to call for trial of the election
            petition on merit unless the same is alleged to have
            materially affected the result of the re fumed candidate. "
          20. There is no dispute that an election cannot be set aside on the
   ground of improper acceptance of any nomination without a pleading
 F and proof that the result of the returned candidate was materially affected.
   The point to be considered is whether the law as laid down by this Court
   relating to the pleading and proof of the fact of the result of the returned
   candidate being materially affected applies to a case where the nomination
   of the returned candidate is declared to have been improperly accepted.
 G A situation similar to the facts of this case arose for consideration of this
   Court in Durai Muthuswami's case. It is necessary to deal with this
   case in detail as the Counsel for the Appellant submitted that the said
   judgment is not applicable to the facts of the present case and that finding
   in the said case have to be treated as obiter.

H           21. The facts, in brief, of the case ofDurai Muthuswami are that
  SRI MAIREMBAM PRITHV!RAJ@ PRITHV!RAJ SINGH v. SHRI                           703
  PUK.HREM SHARATCHANDRASINGH [L. NAGESWARARAO, J.]

 the Petitioner in the election petition contested in the election to the       A
 Tamil Nadu Legislative Assembly from Sankarapuram constituency. He
 challenged the election of the First Respondent on the grounds ofimproper
 acceptance of nomination of the returned candidate, rejection of I 0 I
 postal ballot papers, ineligible persons permitted to vote, voting in the
 name of dead persons and double voting. The High Court dismissed the
                                                                                B
·election petition by holding that the Petitioner failed to allege and prove
 that the result of the election was materially affected by the improper
 acceptance of the nomination of the First Respondent as required by
 Section I 00 (I) (d) of the Act. The Civil Appeal filed by the Petitioner
 therein was allowed by this Court in Durai Muthuswami (supra) in which
 it was held as follows:                                                        c
       "3. Before dealing with the question whether the learned
       Judge was right in holding that he could not go into the
       question whether the 1st respondent's nomination has
       been improperly accepted because there was no
       allegation in the election petition that the election had                D
       been materially affected as a result of such improper
       acceptance, we may look into the relevant provisions
       of law. Under Section 81 of the Representation of the
       People Act, 1951 an election petition calling in question
       any election may be presented on one or more of the
       grounds specified in sub-section (1) of Section JOO and                  E
       Section 101. It is not necessary to refer to the rest of
       the section. Under Section 83(1) (a), insofar as it is
       necessary for the purpose of this case, an election
       petition shall contain a concise statement of the material
       facts on which the petitioner relies. Under Section 100(1)                F
       if the HiKh Court is qf opinion-
       (a) that on the date of his election a returned candidate
       was not qualified, or was disqualified, to be chosen to
       fill the seat under the Constitution or this Act ....
        (b)-(c) * * *                                                           G

       (d) that the result of the election, insofar as it concerns
       a returned candidate, has been materially ajfected-
        (i) by the improper acceptance of any nomination, or
                                                                                H
                                                                                       /



          704      . SUPREME COURT REPORTS                           [2016] 9 S.C.R/


          A      (ii)-(iii) •••
                  the High Court shall declare the ell!ction of the returned
                  candidate to be void. Therefore, what Section 100
                  requires is that the High Court before it declares the
                  election of a returned candidate is void should be of
          B       opinion that the result of the election insofar as it
                 ·concerns a returned candidate has been materially
:.1               ajfected·by the improper acceptance of any nomination.
! I
                  Under Section 83 all that was necessary was a concise
ij
                  statement of the material facts on which the petitioner
                 .relies. That the appellant in this case has done. He has
          c       also stated that the election is void because of the
                  improper acceptance of the 1st respondent's nomination
                  and the facts given showed that the 1st respondent was
                  suffering from a disqualification which will fall under
                  Section 9-A. That was why it was called improper
          D       acceptance. We do not consider that in the circu111sta11ces
                  o[_ this case it was necessary_ (pr the v.etitioner to have
                  also (prther alleged that the result o(_the election inso(_ar
                  as it concerns the returned candidate has been
                  materially_ a((gcted by_ the imv.ror..er accep_tance of_ the
                  1st resv.ondent 's nomination. That is the obvious
           E      conclusion to be drmvn (!'om the circumstances of_ this
                  case. There was only_ one seat to be fl/led and there
                  were only_ two contesting candidates. If_ the allegation
                  that the /st resv.ondent's no111inatio11 has been imv.rov.erly_
                  accev.ted is accev.ted the conc!usio11 that would (pl!ow
           F      is that the Of!.f!.ellant would have bee11 elected as he was
                -1he only_ candidate validly_ no111i11ated. There can be,
                  there(pre, no disv.ute that the result of_ the election
                  inso(_ar as it concerns the returned candidate has been
                  materially_ affected by_ the imv.rov.er accev.tance of_ his
                  nomination because but (pr such imv.rov.er accev.tance
      '   G       he would not have been able to stand (pr the election
                  or be declared to be elected. The p_etitioner had also
                  alleged that the election was void because of_ the
                  imv.rov.er accev.tance o(_the I st resv.ondent 's nominatio11.
                  In the case of_ election to a single-member constituenrx
          H
SRI MAIREMBAM PRITHVIRAJ@ PRITHVIRAJ SINGH v. SHRI                    705
PUK.HREM SHARATCHANDRA SINGH [L. NAGESWARA RAO, J.]

   if there are more than two candidates and the                       A
   nomination of one of the defeated candidates had been
   improperly accepted the question .n)ight arise as to .
   whether the result of the election of the returned
   candidate had been materially affected by such improper
   reception. In such a case the question would arise as to
                                                                       B
   what' would have happened to the votes which had been
   cast in favour of the defeated candidate whose
   nomination had been improperly accepted if it had not
   been accepted. In that case it would be necessary for
   the person challenging the election not merely to allege
   but also tO prove that the result of the election had been          c
   materially affected by the i111proper acceptance of the
   nomination of the other defeated candidate. Unless he
   succeeds in proving that if the votes cast in favour of
   the candidate whose nomination had been improperly
   accepted would have gone in the petitioners favour
   and he would have got a majority he cannot succeed in               D
   his election petition. Section 1OO(l)(d){i) deals with such , '·
   a contingency. it iif,not intended to provide a convenient.
   technical plea in a case like this where there ca11 be no .
   dispute at all about the election being materially affected
   by the acceptance of the improper. nomination.                      E
    "Materially affected" is not a formula that has got to
   be specified but it is an essential requirement that is ,
   contemplated in this section. Law does not conupnplate ·
   (I mere repetition of a formula. The learned Judge has

   failerJ to notice the distinction between a ground on
   which an election can. be declared to be void and the                F
   allegations that are necessary in an election petition in .
   respect of such a ground.. The petitioner had stated the
   ground on ivhich the 1~·t respondent!:,· election should
   be declared to be void. He had also give,11 the. material
    facts as required under Section 83 (I) (a). We are,                G
   therefore, of opinion that the learned Judge erred in
   holding that it was not competent for him to go into the
   question whether the 1st respondent's no111i11ation had
   been improperly accepted." (Underlining ours)

                                                                       H
706           SUPREME COURT REPORTS                         [2016] 9 S.C.R.


A        22. It is clear from the above judgment that there is a difference
  between the improper acceptance of a nomination of a returned candidate
  and the improper acceptance of nomination of any other candidate. There
  is also a difference between cases where there are only two candidates
  in the fray and a situation where there are more than two candidates
  contesting the election. If the nomination of a candidate other than the
B
  returned candidate is found to have been improperly accepted, it is
  essential that the election Petitioner has to plead and prove that the
  votes polled in favour of such candidate would have been polled in his
  favour. On the other hand, if the improper acceptance of nomination is
  of the returned candidate, there is no necessity of proof that the election
c has been materially affected as the returned candidate would not have
  been able to contest the election if his nomination was not accepted. It
  is not necessary for the Respondent to prove that result of the election in
  so far as it concerns the returned candidate has been materially affected
  by the improper acceptance of his nomination as there were only two
  candidates contesting the election and ifthe Appellant's nomination is
0
  declared to have been improperly accepted, his election would have to
  be set aside without any further enquiry and the only candidate left in
  the fray is entitled to be declared elected. The judgment of this Court in
  Durai Muthuswami (supra) was referred to in Jagjit Singh v. Dlwram
  Pal Singll, 1995 Supp (1) SCC 422 page 429 in which it was held as
E follows:
           "21. The trial Judge has held that since there is no
           averment in the petition that the result of the election
           was materially affected by improper rejection or
           acceptance of votes, it is devoid of cause of action. We
 F         are unable to agree that the absence of such an averment
           in the facts of this case is fatal. As pointed out by this
           Court, there may be cases where the obvious conclusion
           to be drawn jiwn the circumstances is that the result of
           the election has been materially affected and that
           Section JOO(l}(d) of the Act is not intended to provide
G          a convenient technical plea in a case where there can
           be no dispute at all about the result of the election being
           materially affected by the alleged infirmity. (See: Durai
           Muthuswami v. N. Nachiappan [(1973) 2 SCC 45 :
           (1974) 1 SCR 40] .) In the present case, the appellant
H
 SRI MAIREMBAM PRITHVIRAJ @PRITHVIRAJ SINGH v. SHRI                   707
 PUKHREM SHARATCHANDRA SINGH [L. NAGESWARARAO, J.]

     in the election petition has stated that he has lost by a         A
     margin of 80 votes only. From the various averments in
     the election petition it was evident that the number of
     valid votes of the appellant which are alleged to have
     been improperly rejected is much more than 80. Fro111
     the aver111ents contained in the election petition it is thus
                                                                       B
     obvious if the appellant succeeds in establishing his
     case as set out in the election petition the result of this
     election, insofar as it concerns the returned candidate,
     would be materially affected. "
     It was held by this Court in Vashist Narain Slwrnw v. Dev
Chandra, reported in 1955 (1) SCR 509 as under:                        c
     "9. The learned counsel for the respondents concedes
     that the burden of proving that the i111proper acceptance
     of a nomination has 111aterially affected the result of
     the election lies upon the petitioner but he argues that
     the question can arise in one of three wtrys:                     D

     (1) where the candidate whose nomination was
     improperly accepted had secured less votes than the
     difference between the returned candidate and the
     candidate securing the next highest number of votes,
                                                                       E
     (2) where the person referred to above secured more
     votes, and
     (3) where the person whose nomination has been
     improperly accepted is the returned candidate hi111sel(
     It is agreed that in the first case the result of the election     F
     is not materially affected because if all the wasted votes
     are added to lhe votes of the candidate securing the
     highest votes, it will make no difference to the result
     and the returned candidate will retain the seat. In the
     other two cases it is contended that the result is
                                                                       G
     materially affected. So far as the third case is concerned
     it may be readily conceded that such would be the
     conclusion. But we are not prepared to hold that the
     mere fact that the wasted votes are greater than the
     margin of votes be1ween the returned candidate and
                                                                       H
708             SUPREME COURT REPORTS                            [2016] 9 S.C.R.



A            the candidate securing the next highest number of votes
             must lead to the necessary inference that the result of
             the election has been materially affected. That is a
             matter which has to be proved and the onus of proving
             it lies upon the petitioner. It will not do merely to say
             that all or a majority of the wasted votes might have
B            gone to the next highest candidate. The casting of votes
             at an election depends upon a variety of factors and it
             is not possible for any one to predicate how many or
             which proportion of the votes will go to one or the other
             of the candidates. While it must be recognised that the
c            petitioner in such a case is confronted with a difficult
             situation, it is 110'1 possible to relieve him of the duty
             imposed upon him by Section 100(1) (c) and hold
             without evidence that the duty has been discharged.
             Should the petitioner fail to adduce satisfactory
             evidence to enable the Court to find in his favour 011
 D           this point, the inevitable result would be that the Tribunal
             would not inte1fere in his favour and would allow the
             election to stand. " (Underlining ours).
             This Cou11 in Kisan Shankar Kathore v. Arun Dattatray Sawant
      (supra) dealt with a situation similar to that of this case. In that case, the
 E    election of the returned candidate was successfully challenged on the
      ground of non-disclosure of material informatiori. The appeal filed by
      the returned candidate was dismissed by this Court by observing as
      follows:
             "Once it is found that it was a case of improper
 F           acceptance, as the1·e was misinformation or suppression
             of material information, one can state that question of
             rejection in such a case was only deferred to a later
             date. When the Court gives such a finding, which would
             have resulted in rejection, the effect would be same,
G            namely, such a candidate was not entitled to contest
             and the election is void. "
         23. Mere finding that there has been an improper acceptance of
  the nomination is not sufficient for a declaration that the election is void
  under Section I 00 (I) (d). There has to be further pleading and proof
H that the result of the election of the returned candidate was materially
  SRI MAIREMBAM PR ITH VI RAJ@ PRITHVlRAJ SINGH v. SHRI                       709
  PUKHREM SHARATCHANDRA SINGH [L. NAG ES WA RA RAO, J.]

affected. But, there would be no necessity ofany proof in the event of         A
the nomination of a returned candidate being declared as having been
improperly accepted, especially in a case where there are only two
candidates in the fray. If the returned candidate's nomination is declared
to have been improperly accepted it would mean that he could not have
contested the election and that the result of the election of the returned
                                                                               B
candidate was materially affected need not be proved further. We do
not find substance in the submission of Mr. Giri that the judgment in
Durai Muthuswami (supra) is not applicable to the facts of this case.
The submission that Durai Muthuswami is a case of disqualification under
Section 9-A of the Act and, so, it is not applicable to the facts llf this
case is also not correct. As stated supra, the election petition in that       c
case was rejected on the ground of non-compliance of Section 100 (1)
(d). The said judgment squarely applies to this case on all fours. We
also do not find force in the submission that the Act has to be strictly
construed and that the election cannot be declared to be void under
Section 100 (1) (d) without pleading and proof that the result of the
                                                                               D
election was materially affected. There is no requirement to prove that
the result of the election of the returned candidate is materially affected
 once his nomination is declared to have been improperly accepted.
     24. For the aforementioned reasons, the Civil Appeal is dismissed.
No costs.
                                                                                E
Civil Appeal No. 2829 of 2016
      25. This appeal is filed by the Petitioner in the election petition
challenging that pati of the judgment dated 29.02.2016 of the High Court
Manipur at Imphal, by which the reliefthat he should be declared to be
elected was rejected. The Appellant contested the election as a candidate       F
of the Nationalist Congress Party (NCP). Respondent No.1 was
declared to have been elected on 28.01.2012. The election of the First
Respondent was set aside by the High Court in the election petition filed
by the Appellant. The Appellant also sought for a reliefthat he should
be declared to have been elected. Such relief was rejected by the High
Court. Hence, this appeal.                                                      G
      26. After the result of the election was declared on 28.01.2012,
the Appellant resigned from NCP and joined Bhartiya Janta Party (BJP).
To a question posed by the Court during the recording of his evidence,
the Appellant stated that he tendered resignation from NCP in the latter
                                                                                I-I
710             SUPREME COURT REPORTS                            [2016] 9 S.C.R.


A     part of2013, that he joined BJP and he continued to be a member of the
      BJP. In January, 2016, the Appellant filed an application for amendment
      to the election petition. He intended to insert additional submissions
      relating to his expulsion from NCP on 23.12.2013 and the representation
      made by him to the President NCP Manipur to cancel the expulsion
      order. He also wanted to bring on record the fact that his enrolment to
B
      the membership of BJP was rejected on 18.01.2016. He further stated
      in the application that the order of expulsion by the NCP was revoked by
      an order dated 21.01.2016.
             27. The arguments in the election petition filed by the Appellant
      were concluded on 25.02.2016. The High Court recorded a finding in
c     the impugned judgment that all the pending miscellaneous applications
      were disposed of with the consent of both sides and the election petition
      was to be adjudicated on the basis of existing material on record. As the
      miscellaneous application filed by the Appellant was not considered, the
      High Court decided the matter on the basis of the material on record
D     which clearly showed that the Appellant resigned from NCP and joined
      BJP. After a careful consideration of the material on record, the High
      Court refused to grant the declaration as sought by the Appellant. The
      High Court held that having joined BJP, the Appellant was not entitled
      for a declaration as he contested the election in 2012 on behalf ofNCP.
      The High Court highlighted the fact that the Appellant will be an MLA
 E    belonging to BJP, if declared elected after having contested the election
      on behalf of the NCP. Taking into account the spirit of law as expressed
      in paragraph no. 2 of the I 01h Schedule of the Constitution of India the
      High Court did not grant the relief sought by the Appellant that he should
      be declared elected.
 F         28. Ms. Meenakshi Arora, learned Senior Counsel appearing for
    the Appellant submitted that the I 01h Schedule to the Constitution is not
    applicable to adjudication of an election petition. She relied upon Section
    53 (2) of the Act to contend that the Appellant sliould be declared as
    duly elected as he was the only person remaining i~1 the fray after the
 G election of respondent/returned candidate was declared void. Section
  · IOI of the Act provides for declaration of the Petitioner to have been
    duly elected ifthe High Court is ofthe opinion that the Petitioner received
    majority of the valid votes.
             29. According to Section 80 (A) of the Act, the High Court will
H     have the jurisdiction to try an election petition. It is well settled law that
  SRI MAIREMBAM PRITHVIRAJ@PRJTHVIRAJ SINGH v. SHRI                               711
  PUKHREMSHARATCHANDRASINGH [L. NAGESWARARAO,J.]

the High Court hearing an election petition is not an 'authority' and that         A
it remains the High Co~n1 while trying an election petition under the Act.
(See T. Deen' D(ly(l/ 1•. llitJli Court o_i A.P., 1997 (7) SCC 535 at
page 540. This Court in H(lri Shanker Jain v. Sonia Gmullii, 2001
(8) SCC 233 at page 244 upheld the decision of a Full Bench of the
Rajasthan High Court wherein it was decided that the jurisdiction of the
                                                                                   B
High Court to try an election petition is not by way of constituting a
special jurisdiction and conferring it upon the High Com1. It is an extension
of the originaljurisdiction of the High Court to hear and decide the election
disputes. It is clear froin the above judgments of this Court that the
inherent power of the High Court is not taken away when the election
disputes are adjudicated. Section 53 (2) is a power conferred on the               c
Returning Officer·to·declare a candidate elected when the number of
candidates is equal to the number of seats to be filled. The powerofthe
Hjgh C::m1rt is not fetter~d by.Section 53 (2}. The High Court has taken
into consideration ananqll)alqus.~ituation that would a~i~e j:lya candidate
belonging to one party being dec~ared elected after having crossed the
floor. We are in ag~ee~entwith tl~e High Court and ~e do not intend to
                                                                                    D
 interfere with the disc~etion exercised by the High Court.
      30. For the aforesaid reasons, the Civil Appeal is dismissed. No
order as to costs.
Kalpana K. Tripathy                                          Appeals dismissed.