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2024 DIGILAW 2362 (ALL)

Sukramapal v. Chief Election Commissioner

2024-11-18

SHEKHAR B.SARAF, VIPIN CHANDRA DIXIT

body2024
JUDGMENT : 1. Heard learned counsel appearing for the petitioner and Sri Jitendra Ojha, learned counsel appearing on behalf of the respondent no.1. 2. This is a writ petition under Article 226 of the Constitution of India wherein the writ petitioner seeks quashing of order dated October 28, 2024 passed by the Returning Officer, State Legislative Assembly, for the bye-election 2024 for the post of M.L.A. from 16-Meerapur, Muzaffarnagar. 3. Learned counsel appearing on behalf of the respondent has objected the filing of this writ petition and stated that the same is not maintainable keeping in mind Article 329 of the Constitution of India read with Section 80 and Section 100 of the Representation of the Peoples Act, 1951 (hereinafter referred to as 'The Act'). Learned counsel for the respondent submits that Section 80 categorically bars an election to be called in question except by way of election petition provided in accordance with the provisions of the Act. He further submits that Section 100(1)(C) specifically provides that one of the grounds for declaring election to be void is when a nomination has been improperly rejected. In light of the same he submits that the petitioner has already an alternative efficacious remedy and the challenge made via the route of writ petition is not maintainable. He further submits that since the elections are to be held on November 20, 2024 i.e., two days from date, it is not possible now to include the petitioner in the election process for technical reasons. He further relied on the judgement of the Hon'ble Apex Court in Resurgence India vs Election Commission of India & Another dated September 13, 2013 reported in AIR 2014 Supreme Court 344, wherein the Hon'ble Supreme Court categorically held that non-filling of any portion of the election form and the affidavit that accompanies the same would make the nomination paper liable to be rejected. 4. Learned counsel appearing on behalf of the petitioner has submitted that his fundamental right is being violated without any proper reasons having been offered and he submits that some parts were not filled up since the answers to the questions had been given in the paragraph above. 5. 4. Learned counsel appearing on behalf of the petitioner has submitted that his fundamental right is being violated without any proper reasons having been offered and he submits that some parts were not filled up since the answers to the questions had been given in the paragraph above. 5. Upon perusal of the documents and the explanation provided by the petitioner and the counter arguments raised by the respondent it is noted that the reason for rejection of the nomination papers were due to non-filling up of the affidavit accompanying the Form 26, wherein Clause 6(K) and Clause 8(ii) were not filled up. The order passed by the Election Officer is provided below-: 6. Before going into the merits of the present case one may examine the ratio of the Hon'ble Supreme Court judgement in Resurgence India (supra). The relevant paragraph is reproduced hereinbelow-: "27) What emerges from the above discussion can be summarized in the form of following directions: (i) The voter has the elementary right to know full particulars of a candidate who is to represent him in the Parliament/Assemblies and such right to get information is universally recognized. Thus, it is held that right to know about the candidate is a natural right flowing from the concept of democracy and is an integral part of Article 19(1)(a) of the Constitution. (ii) The ultimate purpose of filing of affidavit along with the nomination paper is to effectuate the fundamental right of the citizens under Article 19(1)(a) of the Constitution of India. The citizens are supposed to have the necessary information at the time of filing of nomination paper and for that purpose, the Returning Officer can very well compel a candidate to furnish the relevant information. (iii) Filing of affidavit with blank particulars will render the affidavit nugatory. (iv) It is the duty of the Returning Officer to check whether the information required is fully furnished at the time of filing of affidavit with the nomination paper since such information is very vital for giving effect to the 'right to know' of the citizens. If a candidate fails to fill the blanks even after the reminder by the Returning Officer, the nomination paper is fit to be rejected. If a candidate fails to fill the blanks even after the reminder by the Returning Officer, the nomination paper is fit to be rejected. We do comprehend that the power of Returning Officer to reject the nomination paper must be exercised very sparingly but the bar should not be laid so high that the justice itself is prejudiced. (v) We clarify to the extent that Para 73 of People's Union for Civil Liberties case (supra) will not come in the way of the Returning Officer to reject the nomination paper when affidavit is filed with blank particulars. (vi) The candidate must take the minimum effort to explicitly remark as 'NIL' or 'Not Applicable' or 'Not known' in the columns and not to leave the particulars blank. (vii) Filing of affidavit with blanks will be directly hit by Section 125A(i) of the RP Act However, as the nomination paper itself is rejected by the Returning Officer, we find no reason why the candidate must be again penalized for the same act by prosecuting him/her." 7. It may be noted that point (iv) and (vi) at paragraph 27 clearly lay down the requirements of the candidates requiring to fill up each column and not leave a single particular blank. 8. In the present case we are of the view that this Court should not go into the issue on merits as the relief sought by the petitioner is one which can be challenged by way of an election petition under Section 80 of the Act. Our comments on the merits are only tentative in the nature and should not influence the Court hearing the election petition, if any. 9. In light of the alternative efficacious remedy available to the petitioner, this writ petition is dismissed with liberty granted to the petitioner to approach the appropriate forum for redressal of his grievance at the appropriate time.