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Madras High Court · body

2019 DIGILAW 2075 (MAD)

Ku. Ka. Selvam v. R. Selvam

2019-08-08

D.KRISHNAKUMAR

body2019
ORDER : D. KRISHNAKUMAR, J. 1. The Election Commission of India issued notification to hold General Elections 2016 to the Tamil Nadu Legislative Assembly. The following Election schedule was announced by the Election Commission of India. 1. Filing of nominations from : 23.04.2016 2. Last date for filing nominations : 29.04.2016 3. Scrutiny of nominations : 30.04.2016 4. Date of Election: 16.05.2016 5. Counting of votes : 19.05.2016 The Election petitioner had contested as an independent candidate in Thousand Light Assembly Constituency in the symbol of "ring" allotted by the Returning officer. The second respondent/applicant herein also contested as an official candidate of D.M.K. Party in "Rising Sun" symbol. The second respondent/applicant herein filed nomination papers as a D.M.K. Party Candidate along with affidavit in Form No. 26 of Representation of People Act. When the scrutiny of the nomination papers of the candidates who had filed nomination to contest Election in Thousand Light Assembly constituency was undertaken by the Returning Officer, the Election petitioner and his agent were present. The Election agent of the third respondent herein viz., Thirumaran, who was present there, made a written objection to the Returning Officer, objecting the acceptance of the nomination papers filed by the second respondent stating that the second respondent willfully failed to disclose the particulars regarding the property owned by him in the affidavit in Form 26 of Representation of People Act and further sought for rejection of the nomination of the second respondent on the ground of suppression of material facts. The second respondent/applicant herein through their agent pleaded that the Returning Officer cannot decide the issue raised by the Election agent of the, third respondent and reject the nomination of the second respondent/applicant herein on account of non disclosure of the particulars relating to assets while disclosing the assets in the affidavit in Form 26 of Representation of People Act. The said plea of the applicant was accepted by the Returning Officer and the nomination of the second respondent/applicant herein was accepted by the Returning Officer. According to the election petitioner, agent of the third respondent in Election petition objected that the second respondent/applicant herein failed to disclose in the affidavit in Form 26 of Representation of People Act, the particulars relating to the property for an extent of 10 acres of land, owned by him, comprised in S. Nos. According to the election petitioner, agent of the third respondent in Election petition objected that the second respondent/applicant herein failed to disclose in the affidavit in Form 26 of Representation of People Act, the particulars relating to the property for an extent of 10 acres of land, owned by him, comprised in S. Nos. 13/1A1, 13/1A2, 13/1B, 13/2 and 13/3, situated at No. 73, Maduravoyal Village, Ambattur Taluk, Chennai, and having interest in the said land registered as Document No. 4629/97 before S.R.O., Virugambakkam, Chennai. According to the Election petitioner, the aforesaid property, is in the name of Sri Jaya Educational Trust and the second respondent/applicant herein is its Chairman. The said trust is a private trust in which the second respondent/applicant herein is the beneficiary. According to the Election petitioner, the second respondent/applicant herein failed to disclose the particulars relating to the said property owned by him and having interest in it, in the affidavit filed along with the nomination papers. The second respondent/applicant herein' being a Chairman of Sri Jaya Educational Trust had executed a lease deed, dated 21.4.2011 for 10 acres of land, comprised in S. Nos. 13/1A1 and 13/1B, duly registered as Document No. 2235 of 2011, in the office of Sub Registrar, Virugambakkam, in favour of M.G.R. Educational Trust for 15 years from 20.2.2011 and received an income of Rs. 10,000/- towards lease amount as per the lease deed. The aforesaid property is worth about Rs. 150 Crores. Thus, being a trustee, the second respondent/applicant herein is having interest over the said trust and its properties and non disclosure of the aforesaid assets in the affidavit filed along with nomination papers amounts to swearing a false affidavit suppressing the material and vital information. Thus, the second respondent/applicant herein filed false affidavit before the Returning Officer which amounts to improper acceptance of the nomination of the second respondent/applicant herein. The election of the returned candidate has been materially affected by the non disclosure of his ownership/interest over Sri Jaya Educational Trust and its property. Hence, election of the second respondent/applicant herein is vitiated and becomes void in view of Section 100(1)(d)(i) and 100(1)(d)(iv) of the Representation of People Act, 1951. 2. The second respondent in the Election petition has filed the present application in O.A. No. 645 of 2017 to reject the Election petition. Hence, election of the second respondent/applicant herein is vitiated and becomes void in view of Section 100(1)(d)(i) and 100(1)(d)(iv) of the Representation of People Act, 1951. 2. The second respondent in the Election petition has filed the present application in O.A. No. 645 of 2017 to reject the Election petition. O.A. No. 1219 of 2017 has been filed by the Election petitioner/first respondent herein for amendment in the Verification portion in the Election petition. 3. The present application viz., O.A. No. 645 of 2017 has been filed under Order XIV Rule 8 of the Original Side Rules of this court r/w. Order VII Rule 11 C.P.C. to reject the Election Petition No. 4 of 2016 by stating that the properties referred to above were purchased by Sri Jaya Educational Trust. According to the applicant, the property has been purchased in the name of Jaya Educational Trust represented by its Chairman Mr. Ku. Ka. Selvam. The said Trust is a public trust assessed by the Income Tax Department on its own capacity. 4. The learned Senior Counsel appearing for the applicant herein, drew the attention of this Court to Sections 33-A, 36 and 100 of the Representation of People Act which reads as follows: Section 33A :- Right to Information - (1) A candidate shall, apart from any information which he is required to furnish, under this Act or the rules made thereunder, in his nomination paper delivered under sub-section (1) or Section 33, also furnish the information as to whether- (i) he is accused of any offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the court of competent jurisdiction; (ii) he has been convicted of an offence other than any offence referred to in sub-section (1) or sub-section (2), or covered in sub-section (3) of section 8 and sentenced to imprisonment for one year or more. (2) The candidate of his proposer, as the case may be, shall at the time of delivering to the returning officer the nomination paper under sub-section (1) of section 33, also deliver to him an affidavit sworn by the candidate in a prescribed form verifying the information specified in sub-section (1). (2) The candidate of his proposer, as the case may be, shall at the time of delivering to the returning officer the nomination paper under sub-section (1) of section 33, also deliver to him an affidavit sworn by the candidate in a prescribed form verifying the information specified in sub-section (1). (3) The returning officer, shall as soon as may be after the furnishing of information to him under sub-section (1), display the aforesaid information by affixing a copy of the affidavit delivered under sub-section (2), at a conspicuous place at his office for the information of the electors relating to a constituency for which the nomination paper is delivered. Section 36:- Scrutiny of nominations - (1) On the date fixed for the scrutiny of nominations under section 30, the candidates their election agents, one proposer of each candidate and one other person duly authorised in writing by each candidate but no other person, may attend at such time and place as the returning officer may appoint; and the returning officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in Section 33. (2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any as he thinks necessary, reject any nomination on any of the following grounds:- (a) that on the date fixed for the scrutiny of nominations the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable namely:- Articles 84, 102, 173 and 191 [Part II of this Act, and sections 4 and 14 of the Government of Union Territories Act, 1963 (20 of 1963) or (b) that there has been a failure to comply with any of the provisions of section 33 or section 34; or (c) that the signature of the candidate or the proposer on the nomination paper is not genuine. (3) Nothing contained in clause (b) or clause (c) of sub-section (2) shall be deemed to authorise the [rejection] nomination of any candidate on the ground of any irregularity in respect of a nomination paper, if the candidate has been duly nominated by means of another nomination paper in respect of which no irregularity has been committed. (4) The returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. (5) The returning officer shall hold the scrutiny on the date appointed in this behalf under clause (b) of section 30 and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control: Provided that in case (an objection is raised by the returning officer or is made by any other person) the candidate concerned may be allowed time to rebut it not later than the next day but one following the date fixed for scrutiny, and the returning officer shall record his decision on the date to which the proceedings have been adjourned. (6) The returning officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection. (7) For the purpose of this section, a certified copy of an entry in the electoral roll for the time being in force of a constituency shall be conclusive evidence of the fact that the person referred to in that entry is an elector for that constituency, unless it is proved that he is subject to a disqualification mentioned in section 16 of the Representation of the People Act, 1950 (43 of 1950). (8) Immediately after all the nomination papers have been scrutinised and decisions accepting or rejecting the same have been recorded, the returning officer shall prepare a list of validly nominated candidates, that is to say, candidates whose nominations have been found valid, and affix it to his notice board. (8) Immediately after all the nomination papers have been scrutinised and decisions accepting or rejecting the same have been recorded, the returning officer shall prepare a list of validly nominated candidates, that is to say, candidates whose nominations have been found valid, and affix it to his notice board. Section 100:- Grounds for declaring election to be void-(1) Subject to the provisions of sub-section (2) if the High Court is of opinion- (a) 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. (or the Government of Union Territories Act, 1963 (20 of 1963)]; or (b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c) that any nomination has been improperly rejected; or (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) by any corrupt practice committed in the interests of the returned candidate [by an agent other than his election agent] or (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 this Act or of any rules or orders made under this Act. [the High Court shall declare the election of the returned candidate to void]. [the High Court shall declare the election of the returned candidate to void]. [(2)] If in the opinion of {the High Court}, a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice [***] but [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 [without the consent], of the candidate or his election agent; (b) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and (c) that in all other respects the election was free from any corrupt practice on the part of the candidates or any of his agents, then [the High Court] may decide that the election of the returned candidate is not void." 5. According to the learned Senior Counsel appearing for the applicant, the Election Commission of India, by relying upon Ex. P1, order of the Election Commission, dated 27.3.2003 at para 17 inter-alia, has issued the following directions: "17. for the removal of doubt, it is hereby clarified that the earlier direction contained in Para 14(4) of the order, dated 28.6.2002 in so far as the verification of assets and liabilities by means of summary enquiry and rejection of nomination paper on the ground of furnishing written information or suppressing material is not enforceable in pursuance of the order, dated 13.3.2003 of the Apex Court. 6. According to the learned Senior Counsel appearing for the applicant, the question of improper acceptance of the nomination by the Returning Officer by invoking Sections 33(i), 33A and 36 of the Representation of the People Act, 1961 pales into insignificance: No case has been made out to set aside the election under Section 100(1)(d)(i) of the said Act. In reply to the allegation made in paragraph 13 of the Election Petition, that the election of the returned candidate is improper and had been materially affected/altered by non disclosure of his ownership/interest over Sri Jaya Educational Trust and its property, the learned Senior Counsel submits that the first respondent has not clearly spelt out in the election Petition as to how it has materially affected the declaration of results of the returned candidate. It is for the election petitioner to aver by pleading material facts that the result of the election insofar as it concerns the returned candidate, has been materially affected by such breach or non observance. In support of his submission, the learned Senior Counsel relied upon the judgment of the Hon'ble Supreme Court in the case of Mangani Lal Mandal Vs. Bishnu Deo Bhandari [ (2012) 3 SCC 314 ] and by relying section 100(1) of the Act, 1951, wherein the Apex Court has held in para Nos. 10 and 11 as follows: "10. A reading of the above provision with Section 83 of the 1951 Act leaves no manner of doubt that where a returned candidate is alleged to be guilty of non-compliance of the provisions of the Constitution or the 1951 Act or any rules or orders made thereunder and his election is sought to be declared void on such ground, it is essential for the election petitioner to aver by pleading material facts that the result of the election insofar as it concerned the returned candidate has been materially affected by such breach or non-observance. If the election petition goes to trial then the election petitioner has also to prove the charge of breach or non compliance as well as establish that the result of the election has been materially affected. It is only on the basis of such pleading and proof that the Court may be in a position to form opinion and record a finding that breach or non-compliance of the provisions of the Constitution or the 1951 Act or any rules or orders made thereunder has materially affected the result of the election before the election of the returned candidate could be declared void. 11. A mere non-compliance or breach of the Constitution or the statutory provisions noticed above, by itself, does not result in invalidating the election of a returned candidate under Section 100(1)(d)(iv). The sine qua non for declaring election of a returned candidate to be void on the ground under clause (iv) of Section 100(1)(d) is further proof of the fact that such breach or non-observance has resulted in materially affecting the result of the returned candidate." 7. The sine qua non for declaring election of a returned candidate to be void on the ground under clause (iv) of Section 100(1)(d) is further proof of the fact that such breach or non-observance has resulted in materially affecting the result of the returned candidate." 7. The Election petitioner has to prove the charge of breach or non compliance as well as to establish that the result of the election has been materially affected by such breach or non compliance. In the absence of such pleadings and proof in the Election Petition, the Court may not be in a position to form an opinion and record a finding that breach or non compliance of provisions of the Constitution of India or the Act or any Rule made thereunder, materially affected the result of the election, before the Election of the returned candidate could be declared void. 8. According to the learned Senior Counsel appearing for the applicant, mere non compliance or breach of the constitution or statutory provisions by itself does not result in invalidating the election of a returned candidate under section 100(1)(d)(iv) of the Act. The "sine-quo-non" for declaring election of a returned candidate would be void on the ground under clause (iv) of Section 100(1)(d) of the Act and it is further proof of the fact that such breach or non observance has resulted in materially affecting the result of the returned candidate. 9. At this stage, the learned Senior Counsel appearing for the applicant relied upon Form 26 of the Representation of People Act. According to the learned Senior Counsel appearing for the applicant, Clause 7-B relates to immovable property, Note 1, properties in joint ownership indicating the extent of joint ownership will also have to be indicated. According to the learned Senior Counsel appearing for the applicant, the details of the properties owned by Jaya Educational Trust need not be mentioned in the affidavit in Form 26 of Representation of People Act. Non disclosure of the particulars of the Trust properties in Form 26 of Representation of People Act is not a case of "Casus omissus". The learned Senior Counsel appearing for the applicant relied upon the judgment of the Hon'ble Supreme Court in Sangeetha Singh Vs. Union Of India [ (2005) 7 SCC 484 ], to emphasize that this Court, while interpreting a provision, can only interpret the law and cannot legislate it. The learned Senior Counsel appearing for the applicant relied upon the judgment of the Hon'ble Supreme Court in Sangeetha Singh Vs. Union Of India [ (2005) 7 SCC 484 ], to emphasize that this Court, while interpreting a provision, can only interpret the law and cannot legislate it. If a provision is misused and subjected to the abuse of process of law, it is for the Legislature to amend, modify or repeal it, if deemed necessary. The Legislative "Casus omissus" cannot be supplied by judicial interpretative process. Further, it is submitted by the learned Senior Counsel appearing for the applicant that two principles of construction, one relating to "Casus omissus" and the other in regard to reading the statute as a whole appear to be well settled. Under the first principle, a "Casus omissus" cannot be supplied by the Court, except in the case of clear necessity and when reason for it is found in the four corners of the statute itself, but at the same time a "casus omissus" should not be readily inferred and for that purpose, all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. According to the learned Senior Counsel appearing for the applicant, on a conjoint reading of Sections 3, 13, 14, 34, 36 and 51 of the Indian Trust Act, the following three elements emerge. (i) A trustee who holds the trust property which is subject to equitable duties to deal with it for the benefit of another. (ii) A beneficiary to whom the trustee owns equitable duties to deal with its trust properties for his benefit; (iii) Trust property which is held by the trustee for the beneficiary. Conceptually, to constitute a trust there must be an author of the trust, trustees, beneficiary, trust property and beneficial interest. It involves four ingredients; a settlor, donor, a trustee or trustees, beneficiaries and the subject matter of the "trust" may either be expressed or constructive. (iv) As per Section 14 of the Indian Trust Act, 1882, the Trustee must not, for himself or another, set up or aid any title to the trust property adverse to the interest of beneficiary. It involves four ingredients; a settlor, donor, a trustee or trustees, beneficiaries and the subject matter of the "trust" may either be expressed or constructive. (iv) As per Section 14 of the Indian Trust Act, 1882, the Trustee must not, for himself or another, set up or aid any title to the trust property adverse to the interest of beneficiary. A trustee must not mix his private property with the trust property, because, if he does so, he undertakes a heavy burden of proving that any particular property is his, as distinct from the trust. Under the provisions of Section 14 of the Indian Trust Act, the trustee is not permitted to invoke formal title in himself in respect of the trust property against the interest of the beneficiary. A trustee knowing that a certain piece of land has been acquired in the name of the trust cannot be allowed to allege an absolute beneficial title to it, since it would amount to fraud." 10. The Indian Trust Act itself maintains this duality of ownership between the trust property and the individual property of the trustee and enjoins the trustee from amalgamating the trust property with his own. Therefore, permitting the trustee to divulge the trust property as though it is his individual property, is not at all countenanced by the Statute itself. Relying upon the judgment in the case of Venkatarama Naidu And Another Vs. Jayammal [ (1963) 76 L.W. 619 : AIR 1963 MAD 353 ], the learned Senior Counsel appearing for the applicant submitted that "no one who is in the position of a trustee and has acquired property in that capacity, could be permitted to assert an adverse title on his own behalf, until he has obtained' a proper discharge from the trust with which he has clothed himself." Further, he also relied upon the judgment in the case of Narayan Bhagawant Rao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi [ AIR 1960 SC 100 ] wherein the Hon'ble Supreme Court held that "a trustee must not mix his private property with trust property because if it is so, he undertakes a heavy burden of proof that any particular property is his, as distinct from the trust. Further, the learned Senior Counsel appearing for the applicant also relied upon the judgment of the Delhi High Court in the case of Arjan Singh Vs. Further, the learned Senior Counsel appearing for the applicant also relied upon the judgment of the Delhi High Court in the case of Arjan Singh Vs. Deputy Mal Jain [1981 CJ (DEL) 26 [ILR 1982 DEL 11], wherein the Delhi High Court elaborately discussed about the "Public Purpose" and held as under: "(10) A trust of general public utility is open to the whole community yet, by its very nature, advantageous may be to a few. But everyone willing to take advantage must be able to do so. Its use cannot be confined to a selected number of persons, however numerous and important. If it is so confined it does not serve the public purpose which by its nature it is intended to serve. [See Inland Revenue Commissioners v. Bad delay, 1955 Ac 572 (1) at p. 592 per Viscount Simonds]. This means that the whole community of residents as' distinct from particular individuals have a right to use the land. Each and every member of the community need not be equally interested in such use. If the object is to satisfy a great public want or exigency, that is sufficient. The person to be benefited must be a substantial body of the public. Public purpose means public usefulness, utility or advantage, or what is productive of general benefit. The purpose must be needful one for, the public, which cannot be surrendered without obvious' general loss or inconvenience. (12) The public purpose can be educational, charitable or religious. But its distinguishing mark is that it must be beneficial to the community or a section thereof. The property is devoted to the accomplishment of purposes' which are beneficial to the community and the persons who are to receive benefits from the trust are not designated. They are sufficiently large. An indefinite class of beneficiaries. Here the inhabitants are interested in the enforcement of the trust. The court scrutinizes the dealings' of the trustees critically. (21)......The essence of the concept of the trust is the separation of legal and beneficial ownership. The property being legally vested in one or more trustees but in equity held for or belonging to others. Salmond sees 'duplicate ownership in trust. (Salmond on Jurisprudence 12th ed. p. 256). There is a fiduciary obligation laid on the trustees'. (21)......The essence of the concept of the trust is the separation of legal and beneficial ownership. The property being legally vested in one or more trustees but in equity held for or belonging to others. Salmond sees 'duplicate ownership in trust. (Salmond on Jurisprudence 12th ed. p. 256). There is a fiduciary obligation laid on the trustees'. (42).........They cannot retain real ownership and the absolute right to transfer and earn profit and at the same time maintain without breaking the bond of trust obligation. This in short is the answer to the question posed in this case. (43) Ownership consists of innumerable rights over property. Right of alienation is one of them. The right of the owner may all be eaten up by the devotion of the property to a public purpose. Thus the trustee's ownership may be reduced to a mere name rather than a reality. The real ownership vests in the fluctuating body of the inhabitants. "The trustee is destitute of any right of beneficial enjoyment of the trust property" (Salmond p. 256). He is under a legal obligation to use the property for the benefit of those to whom in truth it really belongs. (59) The fundamental requirement of a charitable trust is, in my opinion, correctly stated in the following passage in Tudor on Charities (5th ed) p. 11: "In the first place it may be laid down as a universal rule that the law recognises no purpose as charitable unless it is of a public character. That is to say the purpose must, in order to be charitable, be directed to the benefit of the community or a section of the community........." 11. The learned Senior Counsel appearing for the applicant further relied upon the judgment of the Hon'ble Supreme Court in the case of Fruit & Vegetable Merchants Union, Subzi Mandi, Delhi Vs. Delhi Improvement Trust [ AIR 1957 SC 344 ] wherein, the Hon'ble Supreme Court had interpreted the word "Vesting" and the learned Senior Counsel contended that once the property vested with the trust by relying upon the ownership, applicant is not owner of the said property. 12. According to the learned Senior counsel appearing for the applicant, application filed under Order VII Rule 11 C.P.C. to reject Election petition is maintainable. To support his contention, he has also relied upon the judgment in T.R. Balu Vs. 12. According to the learned Senior counsel appearing for the applicant, application filed under Order VII Rule 11 C.P.C. to reject Election petition is maintainable. To support his contention, he has also relied upon the judgment in T.R. Balu Vs. Purushothaman And Other [AIR (2006) MAD 17] as well as the judgment in the case of T.T.V. Dinakaran vs. M.L. Ravi and others [Original Application No. 393 of 2018 in Election Petition No. 1 of 2018, dated 20.6.2018]. According to the learned Senior Counsel appearing for the applicant herein, the first respondent is relying upon Income Tax Returns filed by Sri Jaya Educational Trust wherein his status is shown as Association of Persons and there is no charitable object. The learned Senior Counsel appearing for the applicant herein also relied upon Section 2(31) of the Income Tax Act, 1961 and submitted that the trust is not included in the above definition of "person". The trust would fall under the category of an association of persons, since Section 12A(1) of the Income Tax Act provides that the provisions of Section 11 and 12 of the Income Tax Act shall not apply in relation to the income of any trust or institution, unless certain conditions are fulfilled, one of such conditions being applied for obtaining registration of the Trust under Section 12AA of the Income Tax Act. Therefore, it is clear that where a trust which had not claimed exemption under section 11 of the Income Tax Act, by virtue of non registration under section 12A of the Income tax Act, the income thereon would be charged to tax as if it were the income of an Association of persons. Hence, it is the contention of the applicant that the tax is levied under ITR V which comes under the Association of Persons (AOP), as the trust had not obtained any exemption. Therefore, the trust had paid Income tax under ITR V. Therefore, the trust comes under the "Association of persons". 13. In reply to the submission made by the applicant, the learned counsel appearing for the first respondent/Election Petitioner submitted that except the fact that the nomenclature of the concern namely "Jaya Educational Trust" in the Deed of Trust and the purchaser in the sale deed filed along with the Election petition, these documents does not establish a link between the applicant and the trust deed. All the documents filed by the applicant are not original or certified copies of the originals. The Income Tax Return/Verification form are yet to be proved by the applicant. Hence, the applicant cannot rely on mere copies of his personal documents to prove his case. The authenticity, the various entries found in the documents, etc. are yet to be proved by the applicant. According to the learned counsel for the first respondent, the applicant is not an author of the sale deed and he has not proved or explained as to how he became the Chairman of the Jaya Educational Trust. Therefore, the tax returns filed by the applicant in the typed set of papers, does not disclose any establishment of Educational Institutions. According to the learned counsel for the first respondent, Jaya Educational Trust is not a Public Trust for charitable or religious purpose. No educational Institution has been established till date as per the documents. According to the learned counsel for the first respondent, Jaya Educational Trust is a private trust in which the second respondent/applicant herein is the beneficiary. Further, the learned counsel for the first respondent has drawn the attention of this Court by relying upon ITR 5 which discloses column with heading status as follows; "Status (Form 1, local authority-2, cooperative bank-3, other cooperative society-4, LLP-5, private discretionary trust-6, any other AOP/BOI-7, artificial juridical person-8). The applicant has filed the form with status AOP/BOP and not with private discretionary trust. The learned counsel for the first respondent further submitted that the applicant has taken loan from Jaya Educational Trust and he ought to have disclosed the same in Form 26 of the Representation of the People Act. Thus, the applicant is having interest in Jaya Educational Trust, as he borrowed interest free loan from Jaya Educational Trust, which he failed to disclose in Form 26 of Representation of People Act. The applicant declared before the Income Tax officer that he is owning a concern in the name and style of Jaya Educational Trust, deriving income from the said business and filed Return as a single unit in the name of the assessee namely "Jaya Educational "Trust". However, no educational Institution is established. Hence, the properties were acquired by doing business in the name and style of Jaya Educational Trust by jointly investing Rs. However, no educational Institution is established. Hence, the properties were acquired by doing business in the name and style of Jaya Educational Trust by jointly investing Rs. 707/- and the subject matter of the property was acquired on 4.12.1997 by the applicant by doing business (other than establishment of Educational Institutions, etc.) in the name and style of Jaya Educational Trust. According to the learned counsel for the first respondent, Jaya Educational Trust is not a Trust. The entire property owned by Jaya Educational Trust with the concern's name, has to be disclosed as part of the assets of the applicant. Therefore, failing to disclose such information in Form 26 of Representation of People Act, would amount to non disclosure of such information which has materially affected/altered the results of the elected candidate. The learned counsel appearing for the first respondent relied upon the judgment in the case of Kisan Shankar Kathore Vs. Arun Dattatray Sawant And Others [ (2014) 14 SCC 162 ] to contend that the voters right to know the assets/debts of the candidates, is a fundamental right under Article 19(1)(a) of the Constitution of India. If there is failure, the election has to be set aside. It is further held that if the nomination papers are filed before the Returning Officer without correct particulars and if the Returning Officer had accepted such nomination papers, then in an Election petition, the Court can declare that it is a case of improper acceptance of nomination. Further, the allegation of the first respondent is that the applicant is doing business in the name of Jaya Educational Trust with his son. The applicant and his son are also getting interest free loan from the said business concern. Therefore, he is bound to disclose the same in Form 26 of Representation of People Act. Hence, all these have to be decided in trial and it cannot be decided in a summary manner. Hence, the application is liable to be dismissed. 14. Heard the learned Senior Counsel appearing for the applicant and the learned counsel appearing for the first respondent and perused the materials available on record and the decisions cited herein. 15. The points that arise for consideration in the present application are as follows: (i) Whether the application filed under Order VII Rule 11 C.P.C. is maintainable? 14. Heard the learned Senior Counsel appearing for the applicant and the learned counsel appearing for the first respondent and perused the materials available on record and the decisions cited herein. 15. The points that arise for consideration in the present application are as follows: (i) Whether the application filed under Order VII Rule 11 C.P.C. is maintainable? (ii) Whether the non disclosure of information of the trust property in Form 26 of Representation of People Act, materially affected the result of the returned candidate, under the provisions of Section 100(1)(d)(i) of the Representation of People Act, 1951? 16. According to the learned Senior Counsel appearing for the applicant, the Election petitioner must make requisite and specific allegations as to the noncompliance of the provisions of the Constitution of India or the provisions of the Representation of the People Act or of any Rules or Orders made thereunder and such non compliance has materially affected the results of the returned candidate. Further, it is submitted that there is no specific provision under the Representation of People Act or in the Form to disclose the trust property in Form 26 of Representation of People Act at the time of submitting nomination papers and the said trust property would not come under the purview of the assets of the applicant, under the Indian Trust Act. There is no pleading in the Election petition about the discrepancy of the nomination papers. In the absence of material facts as well as the specific allegation in the Election petition about non compliance, resulting in materially affecting the results of the returned candidate, there can be no cause of action or triable issues in the election petition. Therefore, the present application is maintainable under Order VII Rule 11 C.P.C. To that extent, he also placed reliance on the judgment reported in (2005) 4 MLJ 310 (supra), wherein this Court considered the scope of Order VII Rule 11 C.P.C. and held that when frivolous election petition is filed, it could be rejected summarily under Order VII Rule 11 C.P.C. 17. In the aforesaid judgment, this Court accepted the contention of the elected candidate and rejected the election petition. In the aforesaid judgment, this Court accepted the contention of the elected candidate and rejected the election petition. In view of the aforesaid decision, the application filed under Order VII Rule 11 C.P.C. to reject the Election petition is maintainable, provided the applicant satisfies the Court that there is no cause of action or it did not contain any material facts to constitute any cause of action and triable issues and then, certainly the application is maintainable. By accepting the contention of the applicant, the issue No. 1 is answered accordingly. 18. The first respondent herein has filed ELP No. 4 of 2016 to declare the election of the applicant herein/returned candidate in the Election to the Thousand Lights Assembly Constituency held on 16.5.2016 as void. The main contention of the Election petitioner/first respondent herein is that the applicant herein/second respondent in Election petition had failed to disclose the particulars relating to the properties owned by him in the affidavit in Form 26 of Representation of People Act, thereby suppressed the material facts before the Returning Officer. At the time of scrutinising the nomination papers of the applicant herein by the Returning Officer, Election agent of the third respondent made written objection to the Returning Officer, objecting the acceptance of the nomination papers filed by the applicant herein/second respondent in Election petition, for non disclosure of the particulars relating to the properties owned by the applicant herein in Form 26 and sought for rejection of the nomination. 19. The learned Senior counsel appearing for the applicant submitted that the election petitioner/first respondent herein made allegation that the applicant herein failed to disclose the properties to the extent of 10 acres of land comprised in Survey Nos. 13/1A1, 13/1A2, 13/1B, 13/2 and 13/3 situated in Maduravoyal Village, Ambattur Taluk, Chennai registered as Document No. 4629 of 1997 on the file of Sub Registrar, Virugambakkam, Chennai owned by him, in the Election affidavit in Form 26 of Representation of People Act. The said property was purchased in the name of Sri Jaya Educational Trust in which the applicant herein is the Chairman of the said Trust and is also a beneficiary. 20. The learned Senior Counsel appearing for the applicant herein would submit that the Election Petition is not maintainable. The said property was purchased in the name of Sri Jaya Educational Trust in which the applicant herein is the Chairman of the said Trust and is also a beneficiary. 20. The learned Senior Counsel appearing for the applicant herein would submit that the Election Petition is not maintainable. In support of his submission, he relied upon the judgment of this Court in the case of T.R. Balu vs. S. Purushothaman and others reported in A.I.R. 2006 MAD 17, wherein this Court rejected the election petition under Order VII Rule 11 of C.P.C. which was filed challenging the election of the returned candidate from No. 3 Madras South Parliamentary Constituency during the election held on 10.5.2014 on the ground that the returned candidate has mentioned in the election affidavit that he has two living spouses and that the said fact of having two living spouses read with Section 17 of the Hindu Marriage Act and Section 494 I.P.C. would disqualify him from contesting the Election. This Court while rejecting the Election Petition, has held that a careful reading of the entire Election Petition would reveal that there is absolutely no averment in the Election Petition that the returned candidate has not complied with the provisions of the Constitution of India or has committed any violation of the provisions of the Representation of People Act or Rule or orders made thereunder. In the absence of any material fact in the Election Petition, it can be well stated that the Election petitioner has not strictly complied with the mandatory provisions under Section 83(1)(a) of the Representation of the People Act nor has he made any unnecessary averments or material disclosing a cause of action and as such any triable issues arise for consideration. 21. In the case of T.T.V. Dinakaran Vs. M.L. Ravi and others (supra), this Court rejected the Election Petition by invoking the provisions of Order VII Rule 11 C.P.C. This is a case where the election of the returned candidate to Dr. R.K. Nagar Assembly Constituency in the State of Tamil Nadu, during the General Election for 15th Legislative Assembly held on 16.5.2016 was challenged on the ground that the returned candidate had indulged in corrupt practices. R.K. Nagar Assembly Constituency in the State of Tamil Nadu, during the General Election for 15th Legislative Assembly held on 16.5.2016 was challenged on the ground that the returned candidate had indulged in corrupt practices. The Court while rejecting the Election Petition, has held as under: "The reading of the election petition/affidavit accompanying to petition does not make out any specific material fact which specifically attributing the 5th respondent applicant for corrupt practices. It seems as if everybody knew that somebody gave money to somebody to secure vote in favour of somebody, but nobody to say who and somebody and when that somebody gave things for vote and to whom votes were given. As caution by the Supreme Court in judgment cited supra, the majority will of the people of R.K. Nagar constituency reflect in returning the 5th respondent as their representative to the assembly. He should not be dragged to court to defend vague allegations based on report any social media and Press without any substantive and corroborative material. In C.P. John Vs. Babu M. Pallisery and others reported in (2014) 10 SCC 547 at para 21, it will be relevant to state that successful candidate in an election has got the support of majority of the voters who cast their votes in his favour. The success gained by the candidate in public election cannot be called any question by any unsuccessful candidate. By making frivolous and baseless allegations and thereby unnecessary break, the successful candidate to the court proceedings and make, waste of his process of time, it would be otherwise being defeated for the welfare of the members of his constituency." 22. The learned Senior Counsel appearing for the applicant relied upon the decision reported in T.R. Balu case (supra) wherein this Court has held as under: "28. The very reading of the decision of the Supreme Court stated above would make it clear that the grounds for declaring the election void must strictly conform to the grounds mentioned in Sec. 100, and the allegations of disqualification found in the election petition have to be interpreted very strictly. The very reading of the decision of the Supreme Court stated above would make it clear that the grounds for declaring the election void must strictly conform to the grounds mentioned in Sec. 100, and the allegations of disqualification found in the election petition have to be interpreted very strictly. The election petitioner has sought the relief of declaration that the election of the returned candidate the first respondent therein, is void on the grounds of (1) improper acceptance of the nomination and (2) non-compliance with the provisions of the Constitution or of the Representation of the People Act or any Rules or Orders made under that Act. It is not in dispute that after the filing of the nomination papers by the returned candidate, the election petitioner made a representation on 24.4.2004 requesting the Returning Officer to reject the nomination of the first respondent/elected candidate on the ground of bigamy. After giving sufficient opportunity of being heard to both sides, the objection raised by the election petitioner, was rejected by the Returning Officer at the time of scrutiny on the ground that when there was no conviction for bigamy by the Criminal Court, there was no bar for the first respondent returned candidate in contesting the election. The contention of the election petitioner's side that he was to adduce proof if there was a denial; but, in the instant case, in view of the admission by the first respondent returned candidate, it need not be statutorily proved cannot be countenanced. The reason adduced by the Returning Officer for rejecting the objection raised by the election petitioner on the ground of bigamy was a sound one, since mere admission made by the candidate in the affidavit filed along with the nomination papers stating that he has two spouses, by itself would not amount to criminal offence, and he never stood charged, tried or punished for bigamy. 29. The election petitioner has also sought to avoid the election of the returned candidate on the ground stated in Sec. 100(1)(d)(iv) of the Representation of the People Act. In order to avoid the election under the said provision by declaring it as void, the election petitioner must make requisite and specific allegations as to the noncompliance with the provisions of the Constitution or the provisions of the Representation of the People Act or of any Rules or Orders made under that Act. In order to avoid the election under the said provision by declaring it as void, the election petitioner must make requisite and specific allegations as to the noncompliance with the provisions of the Constitution or the provisions of the Representation of the People Act or of any Rules or Orders made under that Act. Needless to say that under Sec. 100(1)(d)(iv), it is absolutely necessary for the election petitioner to plead that the result of the election insofar as it concerns the returned candidate, has been materially affected by the non-compliance with the provisions of the Act or of the Rules. A careful reading of the entire election petition would reveal that there is absolutely no averment in the election petition that the returned candidate has not complied with the provisions of the Constitution or has committed any violation of the provisions of the Representation of the People Act or any Rules or Orders made under that Act. In the absence of any material facts in the election petition, it can be well stated that the election petitioner has not strictly complied with the mandatory provisions under Sec. 83(1)(a) of the Representation of the People Act, nor has he made any necessary averments or materials disclosing a cause of action and as such, any triable issue. Mere allegation that the returned candidate has admitted in the statement of assets that he has got two spouses cannot be considered as necessary and requisite facts supporting his case or it would make a basis for the allegations made in the election petition or it would constitute a cause of action as understood in the Civil Procedure Code. In short, if the allegations are viewed with reference to Sec. 100(1)(d)(i) or 100(1)(d)(iv) of the Representation of the People Act, then the same do not disclose a cause of action or a triable issue. Hence, on those grounds, this Court is of the view that the election petition has got to be necessarily rejected." 23. According to the learned Senior Counsel appearing for the applicant, the property in Doc. No. 5 was purchased in the name of Sri Jaya Educational Trust represented by the Chairman, Ku. Ka. Selvam, the applicant herein. Hence, on those grounds, this Court is of the view that the election petition has got to be necessarily rejected." 23. According to the learned Senior Counsel appearing for the applicant, the property in Doc. No. 5 was purchased in the name of Sri Jaya Educational Trust represented by the Chairman, Ku. Ka. Selvam, the applicant herein. In reply to para 10 of the Election petition, the learned Senior Counsel appearing for the applicant would submit that the Trust is established for the benefit of students irrespective of caste, creed or any background. Therefore, the trust partakes the character of a public trust and as the Chairman/Trustee, the applicant holds the trust property. The beneficiaries are the members of an uncertain and fluctuating body. The said Trust is a public trust. Therefore, the applicant denied the allegation by stating that the aforesaid property is a trust property, not owned by him in his personal capacity. Admittedly, in the averments made in the Election petition, it is stated that the trust is represented by Chairman of Sri Jaya Educational Trust. Further, it is submitted by the learned Senior counsel appearing for the applicant herein that the Election petitioner has not filed any certified documents of the Trust properties along with the Election Petition. Therefore, the Election Petition is liable to be rejected for the defects in the Election Petition filed by the first respondent herein. In the absence of any material, frivolous (Election) petition filed by the first respondent herein is liable to be rejected since there are no material facts involved in the cause of action alleged and there is also no triable issue in the Election Petition. The learned Senior Counsel appearing for the applicant also placed reliance on Section 33-Aof the Representation of the People Act. Sub-section 2 of Section 33-A of the Act reads as follows: "(2) The candidate of his proposer, as the case may be, shall at the time of delivering to the returning officer the nomination paper under sub-section (1) of section 33, also deliver to him an affidavit sworn by the candidate in a prescribed form verifying the information specified in sub-section (1)." 24. As per Sub-section (4) of 33-A of the Act, the Returning Officer shall not reject the nomination papers on the ground of any defect which is not substantial in character. As per Sub-section (4) of 33-A of the Act, the Returning Officer shall not reject the nomination papers on the ground of any defect which is not substantial in character. Further, the learned Senior Counsel appearing for the applicant also emphasized that Section 100 of the said Act would not get attracted to the facts of the present case. The Election petitioner has not satisfied in the Election petition that the election result declared in favour of the returned candidate, is materially affected by an improper acceptance of the nomination of the applicant herein. Further, the learned Senior Counsel appearing for the applicant placed reliance on the order of the Election Commission of India, dated 27.3.2003, which forms part of the record in OA No. 645 of 2017 as Ex. P1. The Election Commission of India vide order, dt. 27.3.2003 at para 17 inter-alia, has issued the following direction: "17. for the removal of doubt, it is hereby clarified that the earlier direction contained in Para 14(4) of the order, dated 28.6.2002 in so far as the verification of assets and liabilities by means of summary enquiry and rejection of nomination paper on the ground of furnishing written information or suppressing material is not enforceable in pursuance of the order, dated 13.3.2003 of the Apex Court." 25. Therefore, the main contention of the Election petitioner is that the trust property stands in the name of Sri Jaya Educational Trust which has not been disclosed in Form 26 of the Representation of People Act, i.e., non disclosure of the material information to the Returning Officer materially affected the result of the returned candidate. The relevant portion of the affidavit in Form 26 of the Representation of People Act, to be furnished by candidate along with the nomination paper, is extracted hereunder: "AFFIDAVIT TO BE FILED BY THE CANDIDATE ALONG WITH NOMINATION PAPER BEFORE THE RETURNING OFFICER FOR ELECTION TO......... (NAME OF THE HOUSE) FROM ............. CONSTITUENCY (NAME OF THE CONSTITUENCY) ................. (7) That I give herein below the details of the assets (movable and immovable, etc.) of myself, my spouse and all dependents: A. Details of movable assets: .................... B. Details of Immovable assets: Notes - (1) Properties in joint ownership indicating the extent of joint ownership will also have to be indicated. (2) Each land or building or apartment should be mentioned separately in this format. SL. B. Details of Immovable assets: Notes - (1) Properties in joint ownership indicating the extent of joint ownership will also have to be indicated. (2) Each land or building or apartment should be mentioned separately in this format. SL. No. Description Self Spouse [HUF] Dependent-1 Dependent-2 Dependent-3 (i) Agricultural Land Location(s) Survey Number(s) Area (total Measurement in acres) Whether inherited property (yes/No) Date of purchase in case of self-acquired property Cost of Land (in case of purchase) at the time of purchase Any investment of the land by way of development, construction, etc. Approximate current market value (ii) Non-Agricultural Land: Location(s) Survey Number(s) Area (total measurement in sq.ft.) Whether inherited property (Yes/No) Date of purchase in case of self-acquired property Cost of Land (in case of purchase) at the time of purchase Any investment on the land by way of development, construction, etc. Approximate current market value (iii) Commercial Buildings (including apartments) - Location(s) - Survey Number(s) Area (total measurement in sq.ft.) Built-up Area (total measurement in sq.ft.) Whether inherited property (Yes/No) Date of purchase in case of self-acquired property Cost of Land (in case of purchase) at the time of purchase Any investment on the property by way of development, construction, etc. Approximate current market value (iv) Residential Buildings (including apartments) : - Location(s) - Survey Number(s) Area (total measurement in sq.ft.) Built-up Area (total measurement in sq.ft.) Whether inherited property (Yes/No) Date of purchase in case of self-acquired property Cost of property (in case of purchase) at the time of purchase Any investment on the land by way of development, construction, etc. Approximate current market value (v) Others(such as interest in property) (vi) Total of current market value of (i) to (v) above 26. On a perusal of Form 26 of Representation of People Act, there is no particular column for disclosure of the trust property as alleged by the Election petitioner. Therefore, the first respondent herein/Election petitioner has not specifically mentioned in the Election petition by furnishing necessary particulars in respect of the property owned by Jaya Educational Trust, which has not been purchased by the applicant herein in his individual capacity. The first respondent herein/Election petitioner himself has stated in the affidavit that the applicant herein is the Chairman of Jaya Educational Trust. The first respondent herein/Election petitioner himself has stated in the affidavit that the applicant herein is the Chairman of Jaya Educational Trust. The Election Petitioner/first respondent herein had the knowledge that the applicant is the Chairman of the Jaya Educational Trust and therefore, the first respondent herein/Election petitioner has to raise specific averment in the Election Petition. There is no specific pleading in the Election Petition filed by the Election petitioner/first respondent herein in that regard. On a perusal of Form 26 of Representation of People Act, with regard to details of assets it would only mean that details of assets (movable and immovables of the candidate (spouse and Dependants needs to be furnished). As per Clause 7-B of Form 26 of Representation of People Act, Immovable property under Note - 1, properties in joint ownership indicating the extent of joint ownership will also have to be indicated. As per Note - 2, each land or building or apartment should be mentioned separately. As per Column (viii) of Clause 7-A, the details of any other assets such as value of claims/interest needs to be mentioned. Under Clause 7-B, the details of agricultural lands, Non agricultural lands, commercial building, residential building, total extent, whether inherited, the date of purchase, cost of land at the time of purchase, any investment in land by way of development, construction, etc., approximate current market value alone need to be mentioned. In Column 7(b)(v) others, (such as interest in property) needs to be mentioned. As rightly pointed out by the learned Senior Counsel appearing for the applicant, it is needless to mention the particulars of trust property in Form 26 of Representation of People Act. Therefore, non furnishing of the details of the trust property under Form 26 of Representation of People Act is not a case of "casus omissus". In this regard, the learned Senior Counsel appearing for the applicant relied upon the decision in the case of Sangeetha Singh Vs. Union Of India [ (2005) 7 SCC 484 , wherein the Hon'ble Supreme Court held as follows: "10. Two principles of construction one relating to casus omissus and the other in regard to reading the statute as a whole appear to be well settled. Union Of India [ (2005) 7 SCC 484 , wherein the Hon'ble Supreme Court held as follows: "10. Two principles of construction one relating to casus omissus and the other in regard to reading the statute as a whole appear to be well settled. Under the first principle, a casus omissus cannot be supplied by the court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature......" Therefore, in the absence of any specific pleading or material facts constituting a cause of action and triable issues in the Election Petition, the Election Petition is not maintainable. 27. The next point raised by the Election petitioner/first respondent herein is that the aforesaid Trust is not a public trust and it is only a private trust. According to the learned counsel appearing for the first respondent/Election petitioner, Doc. No. 5, sale deed of Jaya Educational Trust, established link between the applicant herein and the sale deed. In support of his contention, he specifically submitted that Income Tax Return filed by the applicant does not disclose any establishment of Educational institutions. Only transfers of fund from Jaya Educational Trust to other concerns and vice versa is found. According to the learned counsel for the first respondent, Jaya Educational trust is not a public trust for Charitable or religious purpose. Jaya Educational Trust is a private trust. ITR 5 discloses a column with heading "status" as follows: "Status (Form-1, local authority-2, cooperative bank-3, other cooperative society-4, LLP-5, private discretionary trust-6, any other AOP/BOI-7, artificial juridical person-8". The applicant pays tax in the name of M/s. Jaya Educational Trust as its Chairman under the category AOP/BOI (Association of Persons/Body of Individuals) and not as private discretionary trust. ITR 5 discloses a column with heading "status" as follows: "Status (Form-1, local authority-2, cooperative bank-3, other cooperative society-4, LLP-5, private discretionary trust-6, any other AOP/BOI-7, artificial juridical person-8". The applicant pays tax in the name of M/s. Jaya Educational Trust as its Chairman under the category AOP/BOI (Association of Persons/Body of Individuals) and not as private discretionary trust. In the case of AOP/BOI, the tax has to be paid in the name of the concern for the business carried on by the group of individuals in the name of business concern as assessee. Therefore, the applicant has to disclose said information under Form 26 of the Representation of People Act. 28. In reply to the contention raised by the learned counsel for the first respondent, the learned Senior Counsel appearing for the applicant submitted that Section 2(31) of the Income Tax Act defines the term "person" which includes (i) an individual, (ii) a Hindu undivided family, (iii) a company, (iv) a firm, (v) an Association of persons or a body of individuals, whether incorporated or not, (vi) a local authority and (vii) every artificial juridical person, not falling within any of the above preceding sub-clauses. Trust is not included in the above definition of "person", as it cannot be an individual or HUF or a company or a firm. It cannot be treated as an artificial juridical person, more particularly, since an artificial juridical person is a public corporation established under The Special Act or Legislature and a body having juristic personality of its own. Hence, the trust would fall under the category of an Association of Persons, since an AOP is an association in which two or more persons join for a common purpose or common action, the object of which is to produce income. The same has been dealt in detail under the provisions of section 164(2) of the Income Tax Act. Under Section 2(24)(iia) of the Income Tax Act, income includes voluntary contributions received by a trust created wholly or partly for charitable or religious purposes or by an institution established wholly or partly for such purposes. Section 12A(1) of the Income Tax Act provides that the provisions of Sections 11 and 12 shall not apply in relation to the income of any trust or institution, unless certain conditions are fulfilled, one of such conditions being applying and obtaining for registration of the Trust u/s. 12AA. Section 12A(1) of the Income Tax Act provides that the provisions of Sections 11 and 12 shall not apply in relation to the income of any trust or institution, unless certain conditions are fulfilled, one of such conditions being applying and obtaining for registration of the Trust u/s. 12AA. Therefore, the income of the trust would not be exempted under the provisions of Section 11 of the Income Tax Act, if the trust has not applied and obtained a registration u/s. 12-AA of the Income Tax Act from the Principal Commissioner of Income Tax. In the instant case, the Trust namely M/s. Sri Jaya Educational Trust, though registered under the Registration Act, has not obtained registration under Sec. 12A of the Income Tax Act. Hence, the Trust herein does not claim exemption under Sec. 11. Sub-section (2) of Section 164 of the Income Tax Act reads as follows: "In the case of relevant income which is derived from property held under trust wholly for charitable or religious purposes, or which is of the nature referred to in sub-clause (iia) of clause (24) of section 2 or which is of the nature referred to in sub-section (4-A) of section 11, tax shall be charged on so much of the relevant income as is not exempt under section 11 or section 12 as if the relevant income not so exempt were income of an association of persons. Provided that in a case where the whole or any part of the relevant income is not exemption under section 11 or section 12 by virtue of the provisions contained in clause (c) or clause (d) of sub-section (1) of section 13, tax shall be charged on the relevant income or part of the relevant income at the maximum marginal rate." 29. A plain reading of the above sub-section makes it clear that where the income of the trust is not exempt under Section 11 or 12, then such income would be taxed as if it were the income of an association of persons. In this context, the Bombay High Court in the case of DIT (E) VS. Sheth Mafatlal Gagalbhai Foundation Trust [2001] 249 ITR 533 (Bom.), has held as follows: "6. Sec. 164 does not create a charge on the income of a discretionary trust. The word 'charge' in Sec. 164 means 'levy'. In this context, the Bombay High Court in the case of DIT (E) VS. Sheth Mafatlal Gagalbhai Foundation Trust [2001] 249 ITR 533 (Bom.), has held as follows: "6. Sec. 164 does not create a charge on the income of a discretionary trust. The word 'charge' in Sec. 164 means 'levy'. Sec. 164(2) refers to the relevant income which is derived from property held under trust wholly for charitable or religious purposes. If such income consists of severable portions, exempt as well as taxable, the portion which is exempt is to be left out and the portion which is not exempt is charged to tax as if it is the income of an AOP. Therefore, a proviso was inserted by the Finance Act, 1984 w.e.f. 1st April, 1985, under which in cases where the whole or any part of the relevant income is not exempt under Sec. 11 or 12 because of the contravention of sec. 13(1)(d), then the tax shall be charged on such income or part thereof, as the case may be, at the maximum marginal rate. In other words, only the non-exempt income portion would fall in the net of tax as if it was the income of an AOP..........." Therefore, it is clear from the aforesaid decision, where a trust does not claim exemption under Section 11 by virtue of non-registration under Section 12A of the Income Tax Act, the income thereon would be charged to tax, as if it were the income of an Association of persons. The first respondent herein has raised the aforesaid allegation in the counter statement in O.A. No. 645 of 2017, But, the first respondent herein/Election petitioner has not specifically pleaded the aforesaid allegation in the Election Petition. 30. It is useful to extract the relevant paragraphs in the Election Petition, wherein the first respondent/Election Petitioner has made the following allegations: (i) The applicant herein viz., Ku. Ka. Selvam is an elected candidate and the Chairman of Sri Jaya Educational Trust, having failed to disclose the interest over the property measuring an extent of 10 acres of land in the nomination papers in form 26 of the Representation of People Act and failed to disclose the interest over the Jaya Educational Trust and its properties. (ii) One Thirumaran, Election agent, third respondent herein made objection before the Returning Officer, not to accept the nomination filed by the applicant herein. (ii) One Thirumaran, Election agent, third respondent herein made objection before the Returning Officer, not to accept the nomination filed by the applicant herein. (iii) The first respondent herein/Election petitioner has not specifically disclosed information about the profits derived from the income of the trust property. Admittedly, the first respondent herein/Election petitioner has not made any objection before the Returning Officer by raising the above said ground. 31. Further, in support of the averments made in the Election Petition, the first respondent herein/Election petitioner has not filed relevant documents along with the Election petition. Subsequent to the filing of the documents by the applicant/second respondent, by way of filing counter statement, the Election Petitioner has raised new grounds to declare that the said election declared in favour of the applicant is null and void. Therefore, the issue raised by the Election Petitioner/First Respondent is negatived and the contention of the Applicant/Second Respondent is accepted. Further, on the mere allegation, without specifically relying upon any document, the allegation against the returned candidate, would not constitute a cause of action and to interfere under Sec. 100(1)(d) of the Representation of the People Act. 32. Therefore, in view of the aforesaid discussion and the decisions cited supra, in the absence of any material or specific allegation in the Election Petition, the Election Petition filed by the first respondent herein, challenging the result of the returned candidate is liable to be rejected. Consequently, this Application filed under Order XIV Rule 8 of the Original Side Rules r/w Order VII Rule 11 C.P.C., is liable to be allowed and the Election Petition is liable to be rejected at the threshold itself. 33. Before parting with this order, it is relevant to point out that there is no specific column in form 26 of Representation of People Act, to disclose the trust property or income of the applicant or in the Representation of the People Act, 1951. Therefore, in purity of public life for electing the Returned Candidates, this Court suggests the Election Commission of India to explore the possibility of including a column in form 26 of Representation of People Act to be filed along with the nomination paper under the Representation of People Act for the purpose of furnishing the details of the trust as well as its properties in which the intending candidate is a trustee or has an interest. 34. 34. Considering the facts and circumstances of the case and in the light of the decisions cited supra, the application in O.A. No. 645 of 2017 is allowed. Election petition No. 4 of 2016 is rejected. O.A. No. 1219 of 2017 is closed.