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2017 DIGILAW 223 (KER)

P. G. Sivakumar v. V S Sivakumar

2017-01-31

K.VINOD CHANDRAN

body2017
ORDER K. Vinod Chandran, J. 1. The petitioner, a namesake of the returned candidate, challenges the election of the respondent, on the ground of non-disclosure of essential and material facts along with the nomination filed, more specifically a full disclosure of the assets and liabilities. 2. The respondent appeared and raised a preliminary objection and two issues were framed by the Court; first of which is the preliminary issue and the second required to be considered only if this Court proceeds to trial. The issue framed on the preliminary objection raised is as below:- (i) Whether the Election Petition is maintainable, for reason of the nondisclosure, if at all, of the ownership of two properties by the spouse of the returned candidate and himself not amounting to a corrupt practice either under Section 33 or Section 100(i)(d)(ii) & (iv) or Section 123(2) (a)(i) & (ii) of the Representation of People Act, 1951 and there being, hence, no cause of action? 3. I have heard the learned Senior Counsel Sri.S.Sreekumar for the returned candidate and the learned Counsel Sri.A.Jayasankar for Election Petitioner. 4. The learned Counsel would contend that the allegation in the Election Petition is that the election of the respondent is to be declared void, for reason of the respondent having committed corrupt practice under Section 100(1)(d)(ii) and (iv) of the Representation of the People Act, 1951 (for brevity 'R.P. Act'). Section 100(1)(d)(ii) of the R.P. Act speaks of corrupt practices committed by the agent other than an election agent. There is no pleading to the effect of any such corrupt practice having been committed by any agent or even an election agent of the returned candidate. The allegation is only that the returned candidate has failed to disclose the ownership of a property in the name of himself, another in the joint name of his wife and her siblings and the liability of his spouse to a Co-operative Bank, with respect to a mortgage loan. 5. The learned Senior Counsel for the respondent takes me to the definition of 'corrupt practice' as available under Section 2(c) of the R.P.Act, which refers to the practices specified in Section 123 of the R.P.Act. The allegation of non-disclosure does not amount to any of the practices, as laid down in Section 123 of the R.P.Act, is the forceful argument. The learned Senior Counsel for the respondent takes me to the definition of 'corrupt practice' as available under Section 2(c) of the R.P.Act, which refers to the practices specified in Section 123 of the R.P.Act. The allegation of non-disclosure does not amount to any of the practices, as laid down in Section 123 of the R.P.Act, is the forceful argument. The pleadings indicate an allegation under Section 123(2)(a)(i) and (ii) of the R.P.Act; both of which are not practices alleged on facts in the Election Petition. It is also contended that there is no allegation of the result of the election having been materially affected, by reason of the nondisclosure of the ownership and liability, which is mandatory to bring the case within Section 100(1)(d) (iv) of the R.P. Act. 6. The learned Senior Counsel has placed before me the following decisions in support of the contentions, to buttress the argument of total lack of pleading and the absence of essential averments, so as to persuade this Court not to proceed to trial: Vashist Narain Sharma v. Dev Chandra - (1955) 1 SCR 509 , Samant N. Balkrishna and another v. George Fernandez and others - 1969 (3) SCC 238 , Shiv Charan Singh v. Chandra Bhan Singh - (1988) 2 SCC 12 , Santosh Yadav v. Narender Singh - (2002) 1 SCC 160 , Union of India v. Association for Democratic Reforms - (2002) 5 SCC 294 , People's Union for Civil Liberties (PUCL) and another v. Union of India - (2003) 4 SCC 399, Krishna Moorthy v. Sivakumar and others - (2015) 3 SCC 467 and Sri.Mariembam Prithviraj v. Sri.Pukhrem Sharatchandra Singh - AIR 2016 SCC 5087. 7. It is also contended, without admitting, that if there was a pleading and an allegation of violation of Section 100(1)(d)(i), then, probably, this Court would have to proceed for trial. But, even then, on the factual allegations raised in the writ petition, it would be downright impossible for this Court to set aside the election of the returned candidate for there being a necessity to prove that the election had been materially affected. 8. The learned Senior Counsel appearing for the returned candidate is unable to point out any reference to Section 100(1)(d)(i) in the memorandum of the Election Petition or the affidavit accompanying the same. 8. The learned Senior Counsel appearing for the returned candidate is unable to point out any reference to Section 100(1)(d)(i) in the memorandum of the Election Petition or the affidavit accompanying the same. It is also admitted that there are no averments as to the improper acceptance of the nomination and the election having been materially affected for that reason. The petitioner, however, would contend that there are sufficient allegations in the Election Petition, with respect to the election results having been materially affected, for reason of the non-disclosure of the entire assets and liabilities of the returned candidate and his spouse; since that excluded them from media scrutiny. The learned Counsel would also refer to Form 26 (Affidavit to be enclosed with the nomination paper) under the Conduct of Elections Rules 1961 (for brevity 'the Rules'), which mandates the complete disclosure having to be made of assets and liabilities; the violation of which would bring the issue under non-compliance with the provisions of the Rules and Orders made under this Act. It is argued that the disclosure of assets and liabilities has been mandated by Orders of the Election Commission and the noncompliance, as such, would result in the election being declared invalid. The learned Counsel would urge that the preliminary objection has to be rejected and the trial proceeded with. The learned Senior Counsel for the returned candidate relies on Kisan Shankar Kathore v. Arun Dattatray Sawant - (2014) 14 SCC 162 and Order in E.P No.7 of 2016 dated 24.10.2016 (V.R.Soji v. Veena George). 9. The controversy at this preliminary stage is in a very narrow compass, as to whether there are sufficient pleadings in the Election Petition. The allegation is that a full disclosure of the assets of the returned candidate and the assets and liabilities of the spouse of the returned candidate have not been made in the affidavit to be furnished by the candidate along with the nomination papers. The lack of pleadings is alleged mainly on the ground that there is no reference to sub clause (i) of clause (d) of sub section (1) of Section 100 of the R.P.Act. There is not even a pleading that there was improper acceptance of the nomination and thus the election was materially affected, is the contention raised. 10. The lack of pleadings is alleged mainly on the ground that there is no reference to sub clause (i) of clause (d) of sub section (1) of Section 100 of the R.P.Act. There is not even a pleading that there was improper acceptance of the nomination and thus the election was materially affected, is the contention raised. 10. The requirement to disclose the entire assets of a proposed candidate at the time of nomination, inter alia of himself and near relatives, originally arose from the directions issued by the High Court of Delhi to the Election Commission. The directions were intended at securing to the voters, information pertaining to each of the candidates contesting the election to the Parliament and to the State Legislatures; of the criminal antecedents of the candidate, the assets of a candidate, material facts giving insight to the candidate's competence, capacity and suitability to act as a parliamentarian or a legislator, including his/her educational qualification and any other information which the Election Commission considers necessary for judging the capacity and capability of the candidate or political party fielding the candidate, for election to the Parliament or the State Legislature. The Hon'ble Supreme Court in Association for Democratic Reforms upheld the said directions in principle and so directed in paragraph 48 of the judgment: 48. The Election Commission is directed to call for information on affidavit by issuing necessary order in exercise of its power under Article 324 of the Constitution of India from each candidate seeking election to Parliament or a State Legislature as a necessary part of his nomination paper, furnishing therein, information on the following aspects in relation to his/her candidature: (1) Whether the candidate is convicted/acquitted/discharged of any criminal offence in the past if any, whether he is punished with imprisonment or fine. (2) Prior to six months of filing of nomination, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the court of law. If so, the details thereof. (3) The assets (immovable, movable, bank balance, etc.) of a candidate and of his/her spouse and that of dependants. (4) Liabilities, if any, particularly whether there are any overdues of any public financial institution or government dues. (5) The educational qualifications of the candidate. 11. If so, the details thereof. (3) The assets (immovable, movable, bank balance, etc.) of a candidate and of his/her spouse and that of dependants. (4) Liabilities, if any, particularly whether there are any overdues of any public financial institution or government dues. (5) The educational qualifications of the candidate. 11. The Election Commission, under Article 324(1) of the Constitution of India, brought out Order No.3/ER/2002/JS-II/Vol.III dated 28.06.2002. Subsequently, amendments were made to the R.P. Act bringing in Sections 33-A and 33-B, purportedly in compliance of the directions of the Hon'ble Supreme Court. The provision with respect to furnishing of details of the assets and liabilities of the proposed candidate and the near relatives were conspicuously absent. Section 33-B, so introduced in the year 2002 by Act 72/2002, so to say, protected a proposed candidate from disclosing or furnishing any information which was not required to be disclosed or furnished under the R.P.Act or the Rules made there under. The provision read as a validation clause; making it notwithstanding anything contained in any judgment decree or order of any Court or any direction, order or instruction issued by the Election Commission. The protection so offered by the amendment was set at naught by the Hon'ble Supreme Court in People's Union for Civil Liberties. Section 33-B of the R.P.Act was held to be illegal, null and void. Hence, the direction of the Hon'ble Supreme Court, as translated to an order by the Election Commission, stands. 12. The allegation of the petitioner is that a property of the returned candidate himself and another in the joint ownership of the spouse and her siblings, each having a market value of approximately Rs.40 lakhs, were not disclosed. There was also an allegation that a loan availed, pledging the property in the joint ownership of the spouse, was also not disclosed as a liability of the spouse. The petitioner has contended that the non disclosure has materially affected the election and to support the same, the petitioner has also emphatically referred to the campaign unleashed by the print and visual media in the State; against the so called rich candidates contesting the elections, specifically targeting those having total worth over Rs. 1 crore. The petitioner has contended that the non disclosure has materially affected the election and to support the same, the petitioner has also emphatically referred to the campaign unleashed by the print and visual media in the State; against the so called rich candidates contesting the elections, specifically targeting those having total worth over Rs. 1 crore. The allegation is that by the non disclosure of the assets as also the liabilities, the returned candidate had attempted to project himself as a poor, corruption free candidate from the Thiruvananthapuram constituency and thus steered himself away from the media's tirade on 'crore-pati' candidates, thus, also exerting an undue influence on the voters. 13. The petitioner, hence, alleged that the respondent, by the non-disclosure, successfully escaped the media ire and the public eye as a 'crore-pati' candidate. Immediately, it has to be noticed that the disclosure, as made by the petitioner, itself put the total assets of himself and his near relatives above Rs. 1 crore. It has also been alleged that the candidate who came second in the elections had declared over Rs.4 crores of total worth belonging to himself and his wife and the candidate who came third disclosed more than Rs.8 crores together with his wife. One another candidate had declared worth of more than Rs.100 crores along with his wife. On the specific pleadings made in the writ petition, if the undisclosed assets are added on to the returned candidate's disclosed wealth, even then, it would not have exceeded that declared by any of the said three candidates, as declared by them in the affidavit filed along with their nominations, who were in the fray, and was of any consequence. The petitioner, who stood with the symbol 'Bread' obtained only 101 votes, offering no contest to the respondent, fielded on the symbol 'Palm'; who secured 46,474 votes and got elected with a margin of 10,905 votes. Obviously, the petitioner owes his candidature to his name which has a similarity to that of the respondent, who is a prominent candidate of a national party and the result proved that the 'hand' that makes the 'bread' often cuts it too. 14. The petitioner, obviously, was fielded as a clone, a duplicate or a double as the common parlance goes. 14. The petitioner, obviously, was fielded as a clone, a duplicate or a double as the common parlance goes. The trend of fielding namesakes against serious contenders has been a common phenomenon in this, the worlds largest democracy; with only the dubious intent of misleading that little man making that little cross in a little booth on a little bit of paper (sic). This has been practiced despite the collective majority of little men and women; comprised mostly of the poor, illiterate and the marginalized, having over the years, at the time of elections woken up from its silent slumber to speak with a resounding roar, displaying an uncanny perception; upsetting well-trenched political parties, alliances and equations, unseating the very popular, vanquishing satraps and their kin and electing the most unlikely to represent them and lead them. The little man cannot be so easily befuddled is the writing on the wall, which many ignore, to their own detriment. 15. Be that as it may, though the petitioner as a candidate was no contender, the Election Petition is also filed as a citizen and as Sir. Winston Churchill said, no amount of rhetoric or voluminous discussion can diminish the overwhelming importance of ...that 'little man'. Hence, we come to the question of whether the specific averment, made in the Election Petition, of the violation of Sections 33, Section 100(1)(d)(ii) and (iv) and Section 123(2)(a)(i) and (ii) of R.P.Act and the material facts of non-disclosure having materially affected the elections, would suffice. The learned Counsel appearing for the election petitioner was fair enough to submit that there could be no violation of Section 33 or Section 123 found nor can a violation be found on Section 100(1)(d)(ii) for reason of there being no material allegation on that count. The learned Counsel appearing for the election petitioner was fair enough to submit that there could be no violation of Section 33 or Section 123 found nor can a violation be found on Section 100(1)(d)(ii) for reason of there being no material allegation on that count. What is pressed by the election petitioner is sub clause (iv) of clause (d) of sub section (1) of Section 100 of the R.P. Act, which reads as under: 100.Grounds for declaring election to be void- (1) Subject to the provisions of subsection (2) if the High Court is of opinion xxx xxx xxx (d) that the result of the election, insofar as it concerns a returned candidate, has been materially affected xxx xxx xxx (iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void. 16. It is the submission for the respondent that the violation has to be alleged and proved along with the election of the returned candidate having been materially affected. True, but for the allegation of the candidate having escaped from the media attack against the candidates on the basis of their gross worth, there is absolutely no statistics laid as to the influence the media campaign had among the voters and whether such a campaign unleashed was a proper one; especially when there is no allegation as to any of the candidates having acquired wealth by means other than legal. The acquisition of wealth by legal means is not a disqualification and it would only indicate a citizen of acumen having prudently used his skill and resources, in his chosen professional arena, to acquire wealth, who would, on any count, be an asset to the Legislature in taking forward the Country and the State and improving the impoverished lot of the people. The mere fact that a person has escaped media scrutiny could be, for justifiable or unjustifiable reasons, not always attributable to the person. The disclosure of the two assets also would not have made any difference, on the aspect of media exposure, as noticed herein above. The mere fact that a person has escaped media scrutiny could be, for justifiable or unjustifiable reasons, not always attributable to the person. The disclosure of the two assets also would not have made any difference, on the aspect of media exposure, as noticed herein above. At the risk of repetition, it has to be noticed that the respondent's declared worth, puts him in that minority who had more than one crore net worth and the disclosure of that allegedly suppressed, would not, even then, have placed him any near to his serious opponents. 17. It is of considerable significance; the reason behind the Hon'ble Supreme Court having insisted upon the disclosure of assets by the candidate contesting an election to the Parliament or the State Legislature. In Association of Democratic Reforms (supra) it was held so in paragraph 41: 41. Mr Ashwani Kumar, learned Senior Counsel appearing on behalf of the intervenor submitted that the aforesaid observations are with regard to citizens right to know about the affairs of the Government, but this would not mean that citizens have a right to know the personal affairs of MPs or MLAs. In our view, this submission is totally misconceived. There is no question of knowing the personal affairs of MPs or MLAs. The limited information is whether the person who is contesting election is involved in any criminal case and if involved, what is the result? Further, there are widespread allegations of corruption against the persons holding post and power. In such a situation, question is not of knowing personal affairs but to have openness in democracy for attempting to cure cancerous growth of corruption by few rays of light. Hence, citizens who elect MPs or MLAs are entitled to know that their representative has not misconducted himself in collecting wealth after being elected. This information could be easily gathered only if prior to election, the assets of such person are disclosed. For this purpose, learned counsel Mr Muralidhar referred to the practice followed in the United States and the form which is required to be filled in by a candidate for the Senate, which provides that such candidate is required to disclose all his assets and that of his spouse and dependants. The form is required to be refilled every year. Penalties are also prescribed which include removal from ballot. 18. The form is required to be refilled every year. Penalties are also prescribed which include removal from ballot. 18. The Hon'ble Supreme Court when considering the validity of Section 33-B, which sought to upset the directions inter alia of disclosure of assets of the proposed candidate, in People's Union for Civil Liberties held so in paragraphs 119 and 120 of the concurring judgment on the very same aspect: IV. (2) Assets and liabilities 119. Disclosure of assets and liabilities is another thorny issue. If the right to information is to be meaningful and if it is to serve its avowed purpose, I am of the considered view that the candidate entering the electoral contest should be required to disclose the assets and liabilities (barring articles of household use). A Member of Parliament or State Legislature is an elected representative occupying high public office and at the same time, he is a public servant within the meaning of the Prevention of Corruption Act as ruled by this Court in the case of P.V. Narasimha Rao v. State. They are the repositories of public trust. They have public duties to perform. It is borne out by experience that by virtue of the office they hold there is a real potential for misuse. The public awareness of financial position of the candidate will go a long way in forming an opinion whether the candidate, after election to the office had amassed wealth either in his own name or in the name of family members viz. spouse and dependent children. At the time when the candidate seeks re-election, the citizens/voters can have a comparative idea of the assets before and after the election so as to assess whether the high public office had possibly been used for self-aggrandizement. Incidentally, the disclosure will serve as a check against misuse of power for making quick money, a malady which nobody can deny, has been pervading the political spectrum of our democratic nation. As regards liabilities, the disclosure will enable the voter to know, inter alia, whether the candidate has outstanding dues payable to public financial institutions or the Government. Such information has a relevant bearing on the antecedents and the propensities of the candidate in his dealings with public money. Assets and liabilities� is one of the important aspects to which extensive reference has been made in Assn. for Democratic Reforms case. Such information has a relevant bearing on the antecedents and the propensities of the candidate in his dealings with public money. Assets and liabilities� is one of the important aspects to which extensive reference has been made in Assn. for Democratic Reforms case. The Court did consider it, after an elaborate discussion, as a vital piece of information as far as the voter is concerned. But, unfortunately, the observations made by this Court in this regard have a been given a short shrift by Parliament with little realization that they have a significant bearing on the right to get information from the contesting candidates and such information is necessary to give effect to the freedom of expression. 120. As regards the purpose of disclosure of assets and liabilities, I would like to make it clear that it is not meant to evaluate whether the candidate is financially sound or has sufficient money to spend in the election. Poor or rich are alike entitled to contest the election. Every citizen has equal accessibility in the public arena. If the information is meant to mobilize public opinion in favour of an affluent/financially sound candidate, the tenet of socialistic democracy and the concept of equality so firmly embedded in our Constitution will be distorted. I cannot also share the view that this information on assets would enable the public to verify whether unaccounted money played a part in contesting the election. So long as Explanation 1 to Section 77 of the R.P.Act, 1951 stands and the contributions can legitimately come from any source, it is not possible for a citizen/voter to cause a verification to be made on those lines. In my opinion, the real purposes of seeking information in regard to assets and liabilities are those which I adverted to in the preceding paragraph. It may serve other purposes also, but, I have confined myself to the relevancy of such disclosure vis-Ã -vis right to information only. 121. It has been contended with much force that the right to information made available to the voters/citizens by judicial interpretation has to be balanced with the right of privacy of the spouse of the contesting candidate and any insistence on the disclosure of assets and liabilities of the spouse invades his/her right to privacy which is implied in Article 21. After giving anxious consideration to this argument, I am unable to uphold the same. After giving anxious consideration to this argument, I am unable to uphold the same. In this context, I would like to recall the apt words of Mathew, J., in Gobind v. State of M.P. While analysing the right to privacy as an ingredient of Article 21, it was observed: (SCC p. 155, para 22) 22. There can be no doubt that privacydignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior. (emphasis supplied) It was then said succinctly: (SCC pp. 155-56, para 22) If the court does find that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling State-interest test. Then the question would be whether a State interest is of such paramount importance as would justify an infringement of the right. It was further explained: (SCC p. 156, para 23) Privacy primarily concerns the individual. It therefore relates to and overlaps with the concept of liberty. The most serious advocate of privacy must confess that there are serious problems of defining the essence and scope of the right. Privacy interest in autonomy must also be placed in the context of other rights and values.� By calling upon the contesting candidate to disclose the assets and liabilities of his/her spouse, the fundamental right to information of a voter/citizen is thereby promoted. When there is a competition between the right to privacy of an individual and the right to information of the citizens, the former right has to be subordinated to the latter right as it serves the larger public interest. The right to know about the candidate who intends to become a public figure and a representative of the people would not be effective and real if only truncated information of the assets and liabilities is given. It cannot be denied that the family relationship and social order in our country is such that the husband and wife look to the properties held by them as belonging to the family for all practical purposes, though in the eye of law the properties may distinctly belong to each of them. By and large, there exists a sort of unity of interest in the properties held by spouses. The property being kept in the name of the spouse benami is not unknown in our country. By and large, there exists a sort of unity of interest in the properties held by spouses. The property being kept in the name of the spouse benami is not unknown in our country. In this situation, it could be said that a countervailing or paramount interest is involved in requiring a candidate who chooses to subject himself/herself to public gaze and scrutiny to furnish the details of assets and liabilities of the spouse as well. That is one way of looking at the problem. More important, it is to be noted that Parliament itself accepted in principle that not only the assets of the elected candidates but also his or her spouse and dependent children should be disclosed to the constitutional authority and the right of privacy should not come in the way of such disclosure; but, the hitch lies in the fact that the disclosure has to be made to the Speaker or Chairman of the House after he or she is elected. No provision has been made for giving access to the details filed with the presiding officer of the House. By doing so, Parliament has omitted to give effect to the principle, which it rightly accepted as a step in aid to promote integrity in public life. Having accepted the need to insist on disclosure of assets and liabilities of the elected candidate together with those of other family members, Parliament refrained from making a provision for furnishing the information at the time of filing the nomination. This has resulted in jeopardizing the right to information implicitly guaranteed by Article 19(1)(a). Therefore, the provision made in Section 75-A regarding declaration of assets and liabilities of the elected candidates to the presiding officer has failed to effectuate the right to information and the freedom of expression of the voters/citizens. 19. The disclosure, hence, is not intended at merely pointing fingers at the candidate for reason of the wealth acquired by the candidate or his near relative, but, to ensure that the voter is informed of the assets of a candidate at the time of his election and the acquisition of wealth after election, which, from known sources of income, would be ascertainable. Any untoward escalation would caution the voter and raise questions of how the candidate came by such wealth, which would have to have a satisfactory answer in the campaign. Any untoward escalation would caution the voter and raise questions of how the candidate came by such wealth, which would have to have a satisfactory answer in the campaign. The non-disclosure, if dependent on the election having been materially affected, this Court would not have proceeded with the Election Petition, on the sole ground of lack of pleadings. What disturbs this Court is that there is only a lack of the petitioner having not specifically referred to Section 100(1)(d)(i) in the Election Petition. 20. If there was an allegation of an improper acceptance of nomination, then, definitely, this Court would have to proceed to trial. It is trite that the mere omission to refer to a particular provision cannot lead to the rejection of a petition at the threshold, when the ingredients leading to allegation of such violation is available. What is to be looked at is the sum total of the pleadings made and whether, on such pleading made, the particular provision would be attracted. In the present case, it cannot, but, be noticed that the specific contention is with respect to non disclosure of the entire assets and liabilities of the returned candidate and his spouse. As has been noticed herein above, the declaration of assets and liabilities of the candidate and the near relatives has its source in the directions issued by the Hon'ble Supreme Court in Association of Democratic Reforms as translated into an order dated 28.06.2002, under Article 324(1) of the Constitution, by the Election Commission of India. There can, hence, be no dispute that a non disclosure of the entire assets and liabilities would render the nomination to be one having been improperly accepted. 21. The question as to whether in cases of improper acceptance of nomination, there should be a further pleading on how the elections were materially affected, has been dealt with by the Hon'ble Supreme Court in Mairembam Prithviraj. The allegation, in that case, was with respect to the false declaration made by the returned candidate of his educational qualification. The Hon'ble Supreme Court relied on Durai Muthuswami v. N. Nachiappan - AIR 1973 SC 1419 which held so: 3. The allegation, in that case, was with respect to the false declaration made by the returned candidate of his educational qualification. The Hon'ble Supreme Court relied on Durai Muthuswami v. N. Nachiappan - AIR 1973 SC 1419 which held so: 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 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 100 and Section 101. It is not necessary to refer to the rest of the section. Under Section 83 (1) (a), in so far as it is necessary for the purposes an election petition shall contain a concise statement of the material facts on which the petitioner relies. Under Section 100 (1) if the High Court is of 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) ............ (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected - (i) by the improper acceptance of any nomination, or (ii) ............ (iii) ............ the High Court shall declare the election 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 as void should be of opinion that the result of the election in so far as it concerns a returned candidate has been materially affected by the improper acceptance of any nomination. Under S. 83 all that was necessary was a concise statement of the material facts on which the petitioner relies . That the appellant in this case has done. He has 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 9A. That the appellant in this case has done. He has 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 9A. That was why it was called improper acceptance. We do not consider that in the circumstances of this case it was necessary for the petitioner to have also further alleged that the result of the election so far as it concerns the returned candidate been materially affected by the improper acceptance of the 1st respondent's nomination. That is the obvious conclusion to be drawn from the circumstances of this case. There was only one seat to be filled and there were only two contesting candidates. If the allegation that the 1st respondent's nomination has been improperly accepted is accepted the conclusion that would follow is that the appellant would have been elected as he was the only candidate validly nominated. There can be, therefore, no dispute that the result of the election in so far as it concerns the returned candidate has been materially affected by the improper acceptance of his nomination because but for such improper acceptance he would not have been able to stand for the election or be declared to be elected. The petitioner had also alleged that the election was void because of the improper acceptance of the 1st respondent's nomination. In the case of election to a single member constituency if there are more than two candidates and the nomination of one of the defeated candidates had been improperly accepted the question might 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 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 such a case the question would arise as to 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 materially affected by the improper 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 petitioner's favour and he would have got a majority he cannot succeed in his election petition. Section 100 (l) (d) (i) deals with such a contingency. It is not intended to provide a convenient technical plea in a case like this where there can be no dispute at all about the election being materially affected by the acceptance of the improper nomination. "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 contemplate a mere repetition of a formula. The learned Judge has failed to notice the distinction between a ground on which an election can be declared to be void and the allegations that are necessary in an election petition in respect of such a ground. The petitioner had stated the ground on which the 1st respondent's election should be declared to be void. He had also given the material facts as required under S.83(l)(a). We are, 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 nomination had been improperly accepted. (emphasis supplied) Following the aforesaid judgment it was held so in paragraph 22 of Mairembam Prithviraj: 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. 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 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 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 if the Appellant's 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. The judgment of this Court in Durai Muthuswami (supra) was referred to in Jagjit Singh v. Dharam Pal Singh 1995 Supp (1) SCC 422 in which it was held as 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 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 from the circumstances is that the result of the election has been materially affected and that Section 100(1)(d) of the Act is not intended to provide 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 ]. (See: Durai Muthuswami v. N. Nachiappan (1973) 2 SCC 45 : (1974) 1 SCR 40 ]. In the present case, the Appellant in the election petition has stated that he has lost by 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. From the averments contained in the election petition it is thus 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.� 22. The learned Counsel would argue that in Mairembam Prithviraj and Durai Muthuswami there were only two candidates in the fray and in the context of one of the candidates' nomination being found to be improperly accepted, there was no question of any other consequence other than the election being declared void. Herein, the question is different and Vashist Narain Sharma would be more apposite, is the contention. 23. Mairembam Prithviraj also referred to Vashist Narain Sharma and extracted paragraph 9, which is as herein below: 9. The learned counsel for the respondents concedes that the burden of proving that the improper acceptance of a nomination has materially affected the result of the election lies upon the petitioner but he argues that the question can arise in one of three ways: (1) where the candidate whose nomination was improperly accepted had a secured less votes than the difference between the returned candidate and the candidate securing the next highest number of votes, (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 himself. It is agreed that in the first case the result of the election is not materially affected because if all the wasted votes are added to the votes of the candidate securing the (next?) 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 materially affected. So far as the third case is concerned it may be readily conceded that such would be the conclusion. In the other two cases, it is contended that the result is 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 between the returned candidate and 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 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 may or which proportion of the votes will go to one or the other of the candidates. While it must be recognised that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by Section 100 (1) (c) and hold without evidence that the duty had been discharged. Should the petitioner fail to adduce satisfactory evidence to enable the Court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand. 24. Even Vashist Narain Sharma, as per the underline supplied in Mairembam Prithviraj, held that when the person whose nomination being improperly accepted is the returned candidate himself, it could be readily conceded that the only conclusion would be that of the acceptance of the nomination having materially affected the election. Paragraph 23 of Mairembam Prithviraj is also extracted hereunder: 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 100(1)(d). There has to be further pleading and proof that the result of the election of the returned candidate was materially affected. Paragraph 23 of Mairembam Prithviraj is also extracted hereunder: 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 100(1)(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 proof in the event of 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 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 ( AIR 1973 SC 1419 ) (supra) is not applicable to the facts of this case. The submission that Durai Muthuswami, AIR 1973 SC 1419 is a case of disqualification under Section 9-A of the Act and, so, it is not applicable to the facts of this case is also not correct. As stated supra, the election petition in that 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 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. (emphasis supplied) 25. The insufficiency or lack of pleadings is fatal to an Election Petition since the right to challenge an election is defined by the Statute and has to be invoked within the contours; as defined by the Statute itself. The right to information regarding a candidate, whether it be; his/her criminal antecedents, educational qualification or assets and other aspects of competence, have been held to be a fundamental right, by the judgment in People's Union for Civil Liberties (supra). The right to information regarding a candidate, whether it be; his/her criminal antecedents, educational qualification or assets and other aspects of competence, have been held to be a fundamental right, by the judgment in People's Union for Civil Liberties (supra). The leading judgment held so: The contention that as there is no specific 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 election of a particular candidate, the statutory provisions would govern respective rights of the parties. However, voters fundamental right to know the antecedents of a candidate is independent of statutory rights under the election law. A voter is first citizen of this country and apart from statutory rights, he is having fundamental rights conferred by the Constitution. Members of a democratic society should be sufficiently informed so that they may cast their votes intelligently 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 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. The concurring judgment too held so: (7) The provision made in Section 75-A regarding declaration of assets and liabilities of the elected candidates to the Speaker or the Chairman of the House has failed to effectuate the right to information and the freedom of expression of the voters/citizens. Having accepted the need to insist on disclosure of assets and liabilities of the elected candidate together with those of the spouse or dependent children, Parliament ought to have made a provision for furnishing this information at the time of filing the nomination. Failure to do so has resulted in the violation of guarantee under Article 19(1)(a). 26. What the Court is concerned about is as to whether the citizen has been deprived of any information by the returned candidate on the ground of he having failed to disclose the entirety of the assets and liabilities of himself and his near relatives, in which event, there has to be necessarily a finding of improper acceptance of nomination. 26. What the Court is concerned about is as to whether the citizen has been deprived of any information by the returned candidate on the ground of he having failed to disclose the entirety of the assets and liabilities of himself and his near relatives, in which event, there has to be necessarily a finding of improper acceptance of nomination. In the event of the returned candidate's nomination being found to be improperly accepted, as has been held in Vashist Narain Sharma, Durai Muthuswami and Mairembam Prithviraj, there is no requirement to further prove that the election was materially affected. That goes without saying and is the only inevitable conclusion. The averments in the Election Petition are sufficient insofar as specifically pleading that there is a non disclosure of entire assets and liabilities by the returned candidate, which is a mandate under the Order issued by the Election Commission as directed by the Hon'ble Supreme Court. The said allegation leads to the inevitable result of the nomination having been improperly accepted. The mere absence of a mention of the specific provision under the R.P.Act cannot be a reason to reject the Election Petition at the threshold. On such reasoning the preliminary objection has to be rejected. I do so. The Election Petition shall be posted for evidence.