Court assailing the judgment and order dated 25.04.2023 passed by the Gauhati High Court, Itanagar Bench in Election Petition (Para 1)
It is held that the improper acceptance of the nomination by the Returning Officer has therefore materially affected the result of the election. Hence the election of the appellant from 45-Hyuliang (ST) Assembly Constituency in the election held pursuant to the notification dated 18.03.2019 is declared as void under Section 100(1)(d)(iv) of the R.P. Act 1951. The appellant therefore claiming to be aggrieved by the said judgment and order is before this Court in this appeal. (Para 1)
Wherein this Court on finding that there was clear non-disclosure of the bungalow belonging to the appellant’s wife in the nomination papers filed by the appellant in that case had held the same to be a substantial lapse. Having perused the said decision we note that in the facts of the said case the husband being the candidate had a wife who was living and had owned certain properties which was to be mentioned in Form No.26 and his failure to do so had been held as a substantial lapse, by this Court. (Para 11)
From the evidence placed on record it is noted that in the petition challenging the issue of legal heir certificate the appellant had not set up title to the property which was owned by her late husband but had only contended that the legal heir certificate issued by the Judicial Magistrate, First Class was without jurisdiction. The order passed by the learned Sessions Judge to set aside the same and remand the proceedings to the Court of the Deputy Commissioner through the order dated 20.12.2018 will disclose that the right of the parties to the property was not decided in favour of the appellant, but having set aside the certificate as being without jurisdiction, had remitted the matter to the authority having jurisdiction to consider the same. (Para 12)
If that be the position, as on 22.03.2019 when the nomination was filed by the appellant herein, the issue relating to the legal heir certificate, though set aside was at large and the dispute was pending. In any event, the appellant had not set up any claim to the said properties which were not indicated in Form-26. (Para 13)
The fact remains that even the other persons who have signed have indicated that they have no objection and the legal heir certificate has accordingly been issued in favour of the first wife. Therefore, neither as on the date of the death of the spouse nor on the date of filing the nomination for the election at the first instance in the year 2016 or at the point when the nomination was filed on 22.03.2019, the property left behind by the deceased was claimed by the appellant. (Para 13)
Therefore, in the facts and circumstances of the instant case if all these aspects are taken into consideration the disclosure of the said properties in the column in Form- 26 to indicate the properties belonging to the spouse would not arise, firstly, since the spouse was not alive and on his death the succession had opened, even otherwise she had not claimed any interest in the properties which are the subject matter and belonged to the deceased spouse. Hence it cannot be construed that there was a defect of substantial character in the present facts and circumstances of the case. Hence, this was not a case of improper acceptance of the nomination filed by the appellant. As such the principle enunciated in Mairembam Prithviraj @ Prithviraj Singh vs. Pukhrem Sharatchandra Singh (2017) 2 SCC 487 was not applicable herein. The High Court was therefore not justified in applying the same to the facts arising herein. (Para 16)
As noted, we have indicated that the contention of the respondent in the present facts that it would amount to non-disclosure and therefore a defect of substantial character cannot be accepted and since in that circumstance it is not a case of improperly accepted nomination, it certainly has not materially affected the result of the election as contemplated in Section 100(1)(d)(i) (iv) of the RP Act, 1951. Further, even if the object with which this Court in Union of India vs. Association for Democratic Reforms (2002) 5 SCC 294 has required the disclosure of assets is kept in view, the facts involved herein would indicate that the allegation herein cannot be taken as non-disclosure though it could have been open for the appellant to indicate this aspect in the affidavit but in any event, it is not a substantial defect so as to materially affect the result of the election in the facts and circumstances herein. (Para 17)
SUPREME COURT OF INDIA
2023 STPL(Web) 364 SC
[2023 INSC 930]
Dasanglu Pul Vs. Lupalum Kri
Civil Appeal No. 3710 of 2023-Decided on 19-10-2023
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