Representation of the People Act, 1951 – ss. 100(1)(b), 100(1) (d)(i), 123 – Election – Filing of nomination – Submission of material particulars – Non-disclosure of three vehicles – High Court held non-disclosure of vehicles as corrupt practice – Correctness:

Held: The High Court was of opinion that appellant’s failure to disclose the three vehicles (two scooty and van), that stood registered in the names of his dependent family members, amounted to a corrupt practice – The High Court assumed that the nondisclosure of a vehicle registered in the name of a candidate or his dependent family members was sufficient in itself to constitute undue influence – One scooty was in name of wife of the appellant, DW-5 deposed that he had taken this vehicle as scrap and sold it to DW-6 – DW-6 confirmed the same – In relation to other two vehicles in question, there were actual documents of conveyance and also proof of the requisite forms prescribed under the Motor Vehicles Act, 1988 being duly filled in by wife and son of appellant – Form No. 29, relating to notice of ownership transfer of a vehicle by the registered owner, viz., the transferor, was issued in respect of each of these vehicles but despite the same, the transferees did not do the needful to get their own names registered as the owners – Once it is accepted that the three vehicles in question were either gifted or sold before the filing of the nomination by KK, the said vehicles cannot be considered to be still owned by KK’s wife and son for purposes other than those covered by the Act of 1988 – However, the High Court did not take note of this distinguishing factor in the case on hand – The vehicles were not owned and possessed in praesenti by the dependent family members of KK at the time of the filing of his nomination – Nondisclosure of three vehicles cannot be held against KK – Such non-disclosure cannot be treated as an attempt on his part to unduly influence the voters, thereby inviting the wrath of Section 123(2) of the Act of 1951. [Paras 20,21,22,25,27,28]

Representation of the People Act, 1951 – Election – Filing of nomination – Non-disclosure of three vehicles – Vehicles sold/ gifted – The High Court was of the opinion that, notwithstanding vehicles were sold/gifted, these vehicles continued to stand in the names of the dependent wife and son of KK – In consequence, upon considering the provisions of the Motor Vehicles Act, 1988 and the decision of the Supreme Court in Naveen Kumar v. Vijay Kumar and others [2018] 2 SCR 572, it was held that vehicles were owned by the dependent wife and son of KK but they were not disclosed in the Affidavit in Form No. 26 filed by him – Correctness:

Held: The High Court overlooked the fact that the above judgment (Naveen Kumar v. Vijay Kumar and others) was rendered in the context of and for the purposes of the Act of 1988 and not for general application – The judgment itself made it clear that despite the sale/transfer of the vehicle in question, a claimant or claimants should not be made to run from pillar to post to find out who was the owner of the vehicle as on the date of the accident, if the sale/transfer was not carried out in their books by the authorities concerned by registering the name of the subsequent owner, be it for whatever reason – Further, vehicles being goods, their sale would be covered by the provisions of the Sale of Goods Act, 1930, and the same make it clear that conveyance of ownership of the vehicle would stand concluded upon execution of the document of sale/transfer and registration of the new owner by the authorities concerned would be a post-sale event – Mere failure to get registered the name of the new owner of an already registered vehicle does not mean that the sale/gift transaction would stand invalidated and such a vehicle, despite being physically handed over to the new owner, cannot, by any stretch of imagination, be treated as still being in the possession and control of the former owner.[Paras 23, 27]

Representation of the People Act, 1951 – ss. 100(1)(b), 100(d) (i) – Election – Filing of nomination – Submission of material particulars – Non-submission of the ‘No Dues Certificate’ in respect of the Government accommodation occupied by appellant during his earlier tenure as an MLA was held against him – High Court held that his nomination was defective and in consequence, the acceptance by the Returning Officer was improper – Correctness:

Held: In the case on hand, it is not in dispute that there were no actual outstanding dues payable by KK in relation to the government accommodation occupied by him earlier – His failure in disclosing the fact that he had occupied such accommodation and in filing the ‘No Dues Certificate’ in that regard, with his nomination form, cannot be said to be a defect of any real import – More so, as he did submit the relevant documents of 2014 after an objection was raised before the Returning Officer – His explanation that he submitted such Certificates in the year 2014 when he stood for re-election as an MLA is logical and worthy of acceptance – The most important aspect to be noted is that there were no actual dues and the failure of KK to disclose that he had been in occupation of government accommodation during the years 2009 to 2014 cannot be treated as a defect that is of substantial character so as to taint his nomination and render its acceptance improper. [Para 42]

Representation of the People Act, 1951 – Election – Filing of nomination – Non-disclosure of taxes due – The High Court held that non-disclosure of the taxes due and payable by KK and his wife was a defect of substantial character and the same tainted his nomination:

Held: The failure on the part of KK to disclose the dues of municipal/ property taxes payable by him and his wife, the same cannot be held to be a non-disclosure, inasmuch as he did disclose the particulars of such dues in one part of his Affidavit but did not do so in another part. [Para 49]

Representation of the People Act, 1951 – Election – Filing of nomination – Whether every defect in the nomination can straightaway termed to be of such character as to render its acceptance improper:

Held: Every defect in the nomination cannot straightaway be termed to be of such character as to render its acceptance improper and each case would have to turn on its own individual facts, insofar as that aspect is concerned – This Court has always drawn a distinction between non-disclosure of substantial issues as opposed to insubstantial issues, which may not impact one’s candidature or the result of an election – The very fact that Section 36(4) of the Act of 1951 speaks of the Returning Officer not rejecting a nomination unless he is of the opinion that the defect is of a substantial nature demonstrates that this distinction must always be kept in mind and there is no absolute mandate that every non-disclosure, irrespective of its gravity and impact, would automatically amount to a defect of substantial nature, thereby materially affecting the result of the election or amounting to ‘undue influence’ so as to qualify as a corrupt practice. [Para 40]

Representation of the People Act, 1951 – Voter’s right to know – Absolute or not:

Held: A blanket proposition that a candidate is required to lay his life out threadbare for examination by the electorate is not accepted – His ‘right to privacy’ would still survive as regards matters which are of no concern to the voter or are irrelevant to his candidature for public office – In that respect, non-disclosure of each and every asset owned by a candidate would not amount to a defect, much less, a defect of a substantial character – It is not necessary that a candidate declare every item of movable property that he or his dependent family members owns, unless the same is of such value as to constitute a sizeable asset in itself or reflect upon his candidature, in terms of his lifestyle, and require to be disclosed – Every case would have to turn on its own peculiarities and there can be no hard and fast or straitjacketed rule as to when the non-disclosure of a particular movable asset by a candidate would amount to a defect of a substantial character. [Para 44]

Representation of the People Act, 1951 – s.100(1)(d)(iv) – Election invalidation under:

Held: In the instant case, the High Court linked all the non-disclosures attributed to KK to s.100(1)(d)(i) of the Act of 1951 but ultimately concluded that his election stood invalidated u/s. 100(1) (d)(iv) thereof – There is no discussion whatsoever on what were the violations which qualified as non-compliance with the provisions of either the Constitution or the Act of 1951 or the rules and orders framed thereunder, for the purposes of s.100(1)(d)(iv), and as to how the same materially affected the result of the election – For the election petitioner to succeed on such ground, viz., s.100 (1)(d) (iv), he has not only to plead and prove the breach but also show that the result of the election, insofar as it concerned the returned candidate, has been materially affected thereby – Though there are some general references to non-compliance with particular provisions of the Act of 1951 and the rules made thereunder, there are neither adequate pleadings nor proof to substantiate and satisfy the requirements of s.100(1)(d)(iv) of the Act of 1951 – Therefore, it is clear that NT (unsuccessful candidate) tied up the improper acceptance of KK nomination, relatable to s.100(1)(d)(i) of the Act of 1951, with the non-compliance relatable to s.100(1)(d)(iv) thereof and he did not sufficiently plead or prove a specific breach or how it materially affected the result of the election, in so far as it concerned the returned candidate, KK – It was not open to NT to link up separate issues and fail to plead in detail and adduce sufficient evidence in relation to the non-compliance that would attract s.100(1)(d)(iv) of the Act of 1951 – The finding of the High Court in that regard is equally bereft of rhyme and reason and cannot be sustained. [Paras 45, 46, 48]