TEJ BAHADUR versus SHRI NARENDRA MODI on 24 November 2020

1. This appeal arises out of the order passed by the AllahabadHigh Court in Election Petition No. 17 of 2019 allowing the respondent’sapplication under Order VI Rule 16 and Order VII Rule 11 of the Codeof Civil Procedure, 1908 (hereinafter referred to as ‘CPC’) read withSection 86(1) of the Representation of the People Act, 1951 (hereinafterreferred to as ‘Act’) and thereby dismissing the Election Petition filedagainst him. The said application was filed in the Election Petitionquestioning the election of the respondent Shri Narendra Modi to the17th Lok Sabha from 77th Parliamentary Constituency (Varanasi), heldin April – May 2019.

2. In the Election petition the appellant had prayed for declaringthe election of the respondent to be void on the ground that the appellant’snomination was improperly rejected and further that the nomination ofthe respondent was wrongly accepted for want of disclosure of certainfacts. Further, that the election was vitiated on account of misuse ofofficial power by the Returning Officer and the Election Observer.

3. After due service, the respondent Shri Narendra Modi filed theapplication for dismissal of the petition contending that the petition doesnot disclose any cause of action and the appellant had no locus to file thepetition in the absence of a certificate. The Allahabad High Court afterhearing parties, by a detailed order dismissed the Election Petition on theground that the appellant had no locus to challenge the election of therespondent from the Varanasi Parliamentary Constituency since theappellant was neither an elector for such constituency nor was he acandidate.

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A4. The instant appeal accordingly arises from an order passed bythe Election Tribunal while considering and disposing the application filedunder Order VII Rule 11 CPC seeking rejection of the Election Petition.

5. This matter must therefore necessarily be decided on the basisof the averments in the Election Petition and not on the basis of the replyBof any of the respondents. (Vide: Kuldeep Singh Pathania v. BikramSingh Jaryal, (2017) 5 SCC 345 ).

6. For the Varanasi Constituency, the last date of filing thenominations was 29.04.2019. Scrutiny of the nomination forms was tobe held on 30.4.2019. We are here mainly concerned with the questionCof the validity of the appellant’s nomination since that has a direct bearingon the question whether he is candidate and has a right to question theelection.

7. The appellant was an employee of the Border Security Forceand as such held office under the Government of India. The appellantDwas dismissed from service on 19.4.2017. He filed two nominations,one on 24.4.2019 and another on 29.4.2019. The nominations have beenfound to be invalid by the returning officer because they were notaccompanied by a certificate to the effect that the appellant has notbeen dismissed for corruption or disloyalty to the State as required bySection 9(2)[1] read with Section 33 (3)[2] of the Act.E

8. Clause (6) of Part IIIA of Form 2A of the nomination papercontains a query whether the candidate was dismissed for corruption orfor disloyalty while holding office under the Government of India orGovernment of any State. In the first nomination form filed by theappellant on 24.4.2019, the appellant stated ‘Yes’ against this query andF

1 S. 9(2) :For the purpose of sub-section (1), a certificate issued by the ElectionCommission to the effect that a person having held office under the Government of Indiaor under the Government of a State, has or has not been dismissed for corruption or fordisloyalty to the State shall be conclusive proof of that fact; Provided that no certificate to the effect that a person has been dismissed for corruptionor for disloyalty to the State shall be issued unless an opportunity of being heard hasGbeen given to the said person.

2 S. 33(3) :Where the candidate is a person who, having held any office referred to in(section 9) has been dismissed and a period of five years has not elapsed since thedismissal, such person shall not be deemed to be duly nominated as a candidate unlesshis nomination paper is accompanied by a certificate issued in the prescribed mannerby the Election Commission to the effect that he has not been dismissed for corruption orHdisloyalty to the State.

disclosed the date of his dismissal as 19.4.2017. In the reply to the samequery in the second nomination form filed by him on 29.4.2019, he stated‘No’. The Returning Officer issued two notices on 30.4.2019 referringto the different answers in the two nominations. The notices furtherpointed out that the appellant had placed on record evidence that he wasdismissed from the service of Government of India within five yearsbefore the date of the nomination. But that his nomination form was notaccompanied by the requisite certificate. He was required to submit acertificate of the Election Commission to prove that he was not dismissedfrom service on the ground of corruption or disloyalty to the State asrequired under Section 9 (2) and Section 33 (3) of the Act. He wasgiven time up to 11:00 am on the next day i.e. 01.05.2019 by both noticesto furnish such a certificate from the Election Commission. This timewas given in accordance with the provision of Sub-section (5) of Section36[3] which allows a candidate to rebut any objection not later than thenext day but one.

9. The appellant replied to the first notice stating that he had notbeen dismissed from service on the ground of corruption or disloyalty tothe State without however, making any attempt to provide a certificatefrom the Election Commission to that effect. After receiving the secondnotice on the same date he sent a letter and also wrote an email in theevening of 30.5.2019 to the Election Commission asking for a certificatewhen the time to produce it was to expire on 01.05.2019 at 11:00 am i.e.the next day. Obviously, the appellant did not have any such certificatein his possession.

10. The Returning Officer rejected the appellant’s nominationpapers on 01.05.2019 on the ground that it was not accompanied by acertificate from the Election Commission that his dismissal from servicewas not on the ground of corruption or disloyalty to the State.

11. This rejection of the appellant’s nomination form on the groundthat it was not accompanied by the requisite certificate constitutes the 3 S.36(5) : The returning officer shall hold the scrutiny on the date appointed in thisbehalf under clause (b) of section 30 and shall not allow any adjournment of theproceedings except when such proceedings are interrupted or obstructed by riot oropen violence or by causes beyond his control; Provided that in case [an objection is raised by the returning officer or is made by anyother person] the candidate concerned may be allowed time to rebut it not later than thenext day but one following the date fixed for scrutiny, and the returning officer shallrecord his decision on the date to which the proceedings have been adjourned.

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Amajor challenge in the Election Petition. There are other grounds whichare not relevant at this stage.

12. Mr. Pradeep Kumar Yadav, learned counsel appearing onbehalf of the appellant placed reliance on the proviso of sub-section (5)to Section 36 of the Act. It is his contention that where an objection isBraised by the Returning Officer on the nomination paper, the candidateconcerned should be allowed time till next day but one to rectify thesame. Such time was not permitted and as such the rejection of thenomination is contrary to law. In spite of repeated query, learned counselfailed to point out any evidence on record to show that the appellant haddemanded time to produce the certificate not later than the next day butCone following the date fixed for scrutiny. Appellant in his Memorandumof Appeal has raised the following ground: - “…that the appellant was not provided with sufficient time/opportunity to receive and submit the record, in the noticedated 30.04.2019 by the District Election Office, from theDElection Commission of India…”

13. Mr. Harish N. Salve, learned senior counsel appearing for therespondent contended that the phrase employed in the proviso is “maybe allowed time” and as such the time to be provided is at the discretionof the Returning Officer and the appellant cannot claim any manner ofEright. It is clear that there could be no occasion for a person to be allowedtime where he has not demanded any such time. This contention onbehalf of the appellant must be rejected.

14. Having noted the above contention, we feel that it would befutile to advert to further details relating to the right claimed by theFappellant with reference to the proviso while contending that such rightavailable has been denied to him. This is for the reason that as on thedate of filing the nomination the appellant did not possess the requiredcertificate which was not produced along with the nomination paper. Inthe oath letter dated 30.04.2019 relied upon by the learned counsel forGthe appellant, he merely justifies the absence of requisite certificate onthe ground that he was not notified earlier and that he has never beendismissed on the basis of corruption or disloyalty to the State. Even thedecision of the Returning Officer dated 01.05.2019 records that inappellant’s reply he has stated that Section 9 and 33 (3) are not applicableto his case and he has submitted a representation to the ElectionHCommission.

15. The averment contained in the Appeal Memo refers to thesequence wherein the appellant is stated to have made an attempt throughhis authorised representative to secure the certificate from the Office ofthe Election Commission of India but there is no averment to the effectthat such certificate had been secured. If that be the position, it is clearthat the appellant neither possessed the required certificate on the dateof the filing the nomination, at the time of scrutiny, on the next day butone following the date fixed for scrutiny or even at the time of the filingthe Election Petition.

16. Section 81 of the Act provides that an Election Petition maybe presented by (a) any elector or (b) any candidate at such election.The Explanation to Section 81 provides that an “elector” means a personwho was entitled to vote at the election to which the election petitionrelates. In this case the election is to the Varanasi Parliamentary seat.Obviously, the appellant is not an elector registered in the Varanasiconstituency since he is admittedly enrolled as an elector of Bhiwani,Mahendragarh Parliamentary Constituency, Haryana. His locus thusdepends entirely on the question whether he is a candidate or can claimto be a duly nominated candidate.

17. The term ‘candidate’ is defined in Section 79 (b)[4] of the Act.The first part of definition is intended to cover a person who has beenduly nominated as a candidate. Inter-alia the second part covers a personwho considers himself entitled to have been duly nominated as a candidate.

18. According to the appellant, he is a person who has claimed tohave been duly nominated as a candidate at the Varanasi Election and,therefore, the High Court ought to have considered his Election Petitionas maintainable.

19. The question that arises is whether the appellant can claim tohave been a duly nominated candidate at the said election. The answermust be in the negative. It is a condition for a valid nomination of aperson who has been dismissed from service, that the nomination papermust be accompanied by a certificate to the effect that the person seekingnomination has not been dismissed for corruption or disloyalty to theState. Section 33(3) of the Act itself provides the consequence of theabsence of such certificate and that is that such a person “shall not be 4 S.79(b) ‘candidate’ means a person who has been or claims to have been duly nominatedas a candidate at any election; A

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Adeemed to be duly nominated as a candidate”. The law itself deems thatsuch a person cannot be duly nominated.

20. The requirement of Section 33(3) that a nomination of adismissed officer must be accompanied by a certificate that he was notdismissed on the ground of corruption or disloyalty to the State must beBread as obligatory. It is couched in a language which is imperative andprovides for a certain consequence viz. that such a person shall not bedeemed to be a duly nominated candidate. The word ‘deemed’ in thisprovision does not create a legal fiction. It clarifies any doubt anyonemight entertain as to the legal character of a person who has not andstates with definiteness that such a person shall not be deemed to beCduly nominated. It would, therefore, be absurd to construe the legislativescheme as permitting a person who has not filed his nomination inaccordance with Section 33 (3), as enabling him to claim that he is a dulynominated candidate even though the provision mandates that such aperson shall not be deemed to be a duly nominated candidate.

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21. We are of the view that the mandate of the law that such aperson shall not be deemed to be duly nominated must be given fulleffect and no person must be considered as entitled to claim that he hasbeen duly nominated even though he does not comply with the requirementof law. Though these observations were made in the context of differentErequirements as to nominations, the law laid down by this Court in severaldecisions including Charan Lal Sahu vs. Giani Zail Singh & Anr.,(1984) 1 SCC 390 must clearly govern the present case. This Court inthat case considered the question: when a person can claim to havebeen duly nominated as a candidate under Section 13(a) of the Presidentialand Vice-Presidential Elections Act, 1952. The Court observed: -F

“11. ……But, the claim to have been duly nominated cannotbe made by a person whose nomination paper does notcomply with the mandatory requirements of Section 5-B (1)(a) of the Act. That is to say, a person whose nomination paper,admittedly, was not subscribed by the requisite number ofGelectors as proposers and seconders cannot claim that he wasduly nominated. Such a claim can only be made by a personwho can show that his nomination paper conformed to theprovisions of Section 5-B and yet it was rejected, that is,wrongly rejected by the Returning Officer. To illustrate, if theHReturning Officer rejects a nomination paper on the ground that one of the ten subscribers who had proposed thenomination is not an elector, the petitioner can claim to havebeen duly nominated if he proves that the said proposer wasin fact an ‘elector’.

12. Thus, the occasion for a person to make a claim that hewas duly nominated can arise only if his nomination papercomplies with the statutory requirements which govern thefiling of nomination papers and not otherwise. The claim thathe was ‘duly’ nominated necessarily implies and involves theclaim that his nomination paper conformed to the requirementsof the statute. Therefore, a contestant whose nomination paperis not subscribed by at least ten electors as proposers and tenelectors as seconders, as required by Section 5-B (1)(a) ofthe Act, cannot claim to have been duly nominated, any morethan a contestant who had not subscribed his assent to hisown nomination can. The claim of a contestant that he wasduly nominated must arise out of his compliance with theprovisions of the Act. It cannot arise out of the violation ofthe Act. Otherwise, a person who had not filed any nominationpaper at all but who had only informed the Returning Officerorally that he desired to contest the election could also contentthat he ‘claims to have been duly nominated as a candidate’.”

Applying the above decision to the present case it was necessaryfor the appellant to show that his nomination paper conformed to theprovisions of Section 33(3) of the Act.

22. Admittedly appellant’s nomination paper was not accompaniedby a certificate to the effect that he had not been dismissed for corruptionor disloyalty to the State. Any other construction of the scheme of thelaw in this regard would be startling as it would enable a person whowas not an elector and not even entitled to be nominated as a candidatefor an election to question the election of a returned candidate.

23. At this stage we would like to record that the material factsare not in dispute. It is not in dispute that the appellant’s nominationpaper was not accompanied by a certificate from the ElectionCommission, further, he was served a notice to cure the defect. He didnot do so. It is settled that for a person to make claim that he was duly A

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Anominated, his nomination paper must comply with statutory requirementswhich govern the filing of nomination papers and not otherwise. [VideCharan Lal Sahu v. Neelam Sanjeeva Reddy, (1978) 2 SCC 500;Charan Lal Sahu v. Giani Zail Singh (Supra); Mithilesh Kumar Sinhav. Returning Officer for Presidential Election & Ors. (1993) SUPP4 SCC 386; Charan Lal Sahu & Anr. v. K.R. Narayanan & Anr.B(1998) 1 SCC 56; Charan Lal Sahu v. Dr. A.P.J. Abdul Kalam &Ors., (2003) 1 SCC 609].

24. We, therefore, see no merit in the appeal and do not considerit necessary to issue notice to the respondent. The appeal does not raiseany arguable question of fact or law and admitting the appeal wouldCamount to an exercise in futility for the court to do so. In Bolin Chetia v.Jogadish Bhuyan & Ors., (2005) 6 SCC 81, R.C. Lahoti C.J., speakingfor the court observed as follows: - “It is thus clear that the appellate courts including the HighCourt do have power to dismiss an appeal summarily. SuchDpower is inherent in appellate jurisdiction. The power todismiss summarily is available to be exercised in regard tofirst appeals subject to the caution that such power will beexercised by way of exception and if only the first appellatecourt is convinced that the appeal is so worthless, raising noEarguable question of fact or of law, as it would be a sheerwastage of time and money for the respondent being calledupon to appear, and would also be an exercise in futility forthe court. The first appellate court exercising power to dismissthe appeals summarily ought to pass a speaking order makingit precise that it did go into the pleas – of fact and/or law –Fsought to be urged before it and upon deliberating upon themfound them to be devoid of any merit or substance and givingbrief reasons. This is necessary to satisfy any superiorjurisdiction whom the aggrieved appellant may approach, thatthe power to summarily dismiss the appeal was exercisedGjudicially and consciously by way of an exception.”

25. We find that the averments in the petition do not disclose thatthe appellant has a cause of action which invest him with right to sue. Itis settled that where a person has no interest at all, or no sufficientinterest to support a legal claim or action he will have no locus standi toHsue. The entitlement to sue or locus standi is an integral part of cause of action. In T. Arivandandam v. T.V. Satyapal (1977) 4 SCC 467, V.R.Krishna Iyer J., speaking for this Court held that if on a meaningful-notformal – reading of the plaint it is manifestly vexatious, and meritless, inthe sense of not disclosing a clear right to sue, it should be nipped in thebud at the first hearing.

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26. Section 83 of the Act allows only an elector or candidate tomaintain an Election Petition. Impliedly, it bars any other person fromfiling an Election Petition. In this sense the Election Petition can also beset to be barred by Section 81 read with Section 86(1) of the Act.

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27. We are, therefore, of the view that the present Election Petitionhas been rightly nipped in the bud. The Civil Appeal is, therefore,Cdismissed.

Divya Pandey

Appeal dismissed.

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