High Court of Delhi

Narottam Mishra v. The Election Commission of India and Ors.

MANU/DE/1917/2017

14.07.2017

Election

A candidate is disqualified on his failure to lodge true, correct and genuine account of his bona fide election expenses

Petitioner is aggrieved by order passed by Chief Election Commission vide which Petitioner stood disqualified under Section 10-A of Representation of People Act, 1951. This disqualification was for a period of three years to be counted from date of said order; this was under provisions of Section 10-A read with Sections 77 & 78 of said Act. Commission was of view that, failure on part of Petitioner to explain his account of election expenses in manner required by law and having no good reason or justification for such a failure, he had incurred this disqualification.

Respondent No. 1/Election Commission of India on receipt of report from Committee on Paid News thought it a fit case for further inquiry in matter. It accordingly issued a show cause notice to Petitioner under Rule 89(5) of Conduct of Election Rules, 1961. In this intervening period, a proxy litigation on behalf of Petitioner was endeavoured by Radhey Mohan Soni. Radhey Mohan Soni filed W.P.(C) No. 3512/2011. His contention was that the proceedings before the Election Commission initiated by respondent No. 3 under Section 10-A of said Act cannot continue. He managed to obtain an interim order. Proceedings before the Election Commission were stayed because of this confusion which was sought to be created by this proxy Petitioner. Radhey Mohan Soni was in fact a proxy of Petitioner for yet another reason. After show cause notice had been issued to Petitioner on 15th January, 2013, Radhey Mohan Soni again filed an application before Election Commission stating that, show cause notice issued to Petitioner is bad in law. Thus, interim order obtained by Radhey Mohan Soni, which had led to stalling of proceeding before Election Commission were largely at beck and call of Petitioner. Petitioner cannot be absolved of liability of delaying proceedings.

Repercussion and penalty which has to follow once Election Commission concludes that, an offence under Section 10-A of Act, has been committed; would be a disqualification of elected candidate; a person who is prima-facie guilty under Section 10-A of Act, cannot seek succour on ground of delay. A complainant under Section 10-A of Act, would be in same capacity as an informant of an FIR and if police chooses to register FIR after a delay that, by itself would not fatalize FIR. Each case would depend upon its own facts. In present case, delay was largely attributable to proxy acts qua Petitioner.

Apex Court in Ashok Shankarrao Chavan vs. Dr. Madhavrao Kinhalkar and Ors. has upheld vires of Section 10-A of said Act. It was held that, nature of an inquiry as in Section 10-A of Act, would be more or less of a civil nature and principles of preponderance of probabilities alone would apply. As per Section 10-A of Act, Election Commission is to pass an order of disqualification of a candidate on his failure to lodge a true, correct and genuine account of his bona fide election expenses not exceeding maximum limit which has been prescribed. Such an exercise has to be carried out by Election Commission with utmost care and caution; a heavy responsibility is cast upon Election Commission. For this purpose, Election Commission can make an inquiry which is envisaged under Section 10-A of Act.

Election Commission on a fact finding which was in terms of report submitted by Committee on Paid News as also by evidence which had been led before it (which included examination, cross examination of 6 witnesses qua both parties) had returned a fact finding to effect that, newspaper items in question disclosed that, these newspapers were in nature of appeals to public asking them to vote for Petitioner; these articles promoted him; they were to his advantage; Petitioner had knowledge about them; he had not denied them in his cross-examination; his defence being that, these newspaper articles had not been published at his behest. Drawing analogy of rule of presumption, it was for Petitioner to have rebutted this presumption and to set up his case that, these newspaper articles were neither for his benefit and nor at his behest. He did not lead any such evidence on this score. Election Commission holding that, there was an "implied authorization" by Petitioner to publish these news items was thus, a fair finding.

Powers of superintendence as contained in Article 226 of Constitution are wide powers but at same time these powers have to be exercised with care and caution. Unless and until, there is a wholesome perversity pointed out by Petitioner, this Court should be slow in interfering in its writ jurisdiction. This is a well settled proposition of law. Jurisdiction of this Court under Article 227 of Constitution is only to see whether inferior Court or Tribunal has proceeded within its parameters and not to correct an error apparent on face of the record; much less an error of law; it is not a reweighing evidence upon which inferior Court have passed their decision.

Election Commission after weighing all evidence on principle of preponderance of probabilities which is mandated for an inquiry under Section 10-A of said Act and being distinct from a quasi criminal proceedings which is subject matter of proceedings under Section 8(b) of said Act, had returned its finding. Language of Section 10-A of Act is clear. It mandates that, disqualification incurred by a candidate has to be from date of order; what effect it may or may not have on a subsequent election is not what has to be taken into account. Apex Court in Union of India Vs. J.N. Sinha had noted that, if a statutory provision either specifically or by necessary implication excludes application of any law or of principles of natural justice, then Courts cannot ignore mandate of Legislature or statutory authority and read into concerned provisions principles of natural justice. High Court dismissed the petition.

Relevant

Ashok Shankarrao Chavan vs. Dr. Madhavrao Kinhalkar and Ors. MANU/SC/0466/2014
, Union of India (UOI) vs. Col. J.N. Sinha and Anr. MANU/SC/0500/1970

Tags : Election expenses Account Disqualification

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