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Supreme Court of India
Tej Bahadur vs Shri Narendra Modi on 24 November, 2020Author: Hon’Ble The Justice

Bench: Hon’Ble The Justice, A.S. Bopanna, V. Ramasubramanian

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2100 OF 2020

Tej Bahadur ….Appellant(s)

Versus

Shri Narendra Modi ….Respondent(s)

J U D G M E N T

S.A. BOBDE, CJI.

1. This appeal arises out of the order passed by the Allahabad

High Court in Election Petition No. 17 of 2019 allowing the

respondent’s application under Order VI Rule 16 and Order VII Rule

11 of the Code of Civil Procedure, 1908 (hereinafter referred to as

‘CPC’) read with Section 86(1) of the Representation of the People

Act, 1951 (hereinafter referred to as ‘Act’) and thereby dismissing

the Election Petition filed against him. The said application was filed

in the Election Petition questioning the election of the respondent

Shri Narendra Modi to the 17th Lok Sabha from 77 th Parliamentary

Constituency (Varanasi), held in April – May 2019.

2. In the Election petition the appellant had prayed for declaring
Signature Not Verified

Digitally signed by
Madhu Bala
Date: 2020.11.24
13:52:43 IST
the election of the respondent to be void on the ground that the
Reason:

appellant’s nomination was improperly rejected and further that the

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nomination of the respondent was wrongly accepted for want of

disclosure of certain facts. Further, that the election was vitiated on

account of misuse of official power by the Returning Officer and the

Election Observer.

3. After due service, the respondent Shri Narendra Modi filed the

application for dismissal of the petition contending that the petition

does not disclose any cause of action and the appellant had no locus

to file the petition in the absence of a certificate. The Allahabad High

Court after hearing parties, by a detailed order dismissed the

Election Petition on the ground that the appellant had no locus to

challenge the election of the respondent from the Varanasi

Parliamentary Constituency since the appellant was neither an

elector for such constituency nor was he a candidate.

4. The instant appeal accordingly arises from an order passed by

the Election Tribunal while considering and disposing the application

filed under Order VII Rule 11 CPC seeking rejection of the Election

Petition.

5. This matter must therefore necessarily be decided on the basis

of the averments in the Election Petition and not on the basis of the

reply of any of the respondents. (Vide: Kuldeep Singh Pathania v.

Bikram Singh Jaryal, (2017) 5 SCC 345 ).

6. For the Varanasi Constituency, the last date of filing the

nominations was 29.04.2019. Scrutiny of the nomination forms was

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to be held on 30.4.2019. We are here mainly concerned with the

question of the validity of the appellant’s nomination since that has

a direct bearing on the question whether he is candidate and has a

right to question the election.

7. The appellant was an employee of the Border Security Force

and as such held office under the Government of India. The

appellant was 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 been found to be invalid by the returning officer

because they were not accompanied by a certificate to the effect

that the appellant has not been dismissed for corruption or disloyalty

to the State as required by Section 9(2) 1 read with Section 33 (3)2 of

the Act.

8. Clause (6) of Part IIIA of Form 2A of the nomination paper

contains a query whether the candidate was dismissed for corruption

or for disloyalty while holding office under the Government of India

or Government of any State. In the first nomination form filed by the

appellant on 24.4.2019, the appellant stated ‘Yes’ against this query

and disclosed the date of his dismissal as 19.4.2017. In the reply to

the same query in the second nomination form filed by him on

1S. 9(2) :For the purpose of sub-section (1), a certificate issued by the Election Commission to the effect
that a person having held office under the Government of India or under the Government of a State, has or
has not been dismissed for corruption or for disloyalty to the State shall be conclusive proof of that fact;
Provided that no certificate to the effect that a person has been dismissed for corruption or for disloyalty
to the State shall be issued unless an opportunity of being heard has been 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 the dismissal, such person shall not be deemed
to be duly nominated as a candidate unless his nomination paper is accompanied by a certificate issued in
the prescribed manner by the Election Commission to the effect that he has not been dismissed for
corruption or disloyalty to the State.

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29.4.2019, he stated ‘No’. The Returning Officer issued two notices

on 30.4.2019 referring to the different answers in the two

nominations. The notices further pointed out that the appellant had

placed on record evidence that he was dismissed from the service of

Government of India within five years before the date of the

nomination. But that his nomination form was not accompanied by

the requisite certificate. He was required to submit a certificate of

the Election Commission to prove that he was not dismissed from

service on the ground of corruption or disloyalty to the State as

required under Section 9 (2) and Section 33 (3) of the Act. He was

given time up to 11:00 am on the next day i.e. 01.05.2019 by both

notices to furnish such a certificate from the Election Commission.

This time was given in accordance with the provision of Sub-section

(5) of Section 363 which allows a candidate to rebut any objection

not later than the next day but one.

9. The appellant replied to the first notice stating that he had not

been dismissed from service on the ground of corruption or

disloyalty to the State without however, making any attempt to

provide a certificate from the Election Commission to that effect.

After receiving the second notice on the same date he sent a letter

and also wrote an email in the evening of 30.5.2019 to the Election

Commission asking for a certificate when the time to produce it was

3 S.36(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.

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to expire on 01.05.2019 at 11:00 am i.e. the next day. Obviously, the

appellant did not have any such certificate in his possession.

10. The Returning Officer rejected the appellant’s nomination

papers on 01.05.2019 on the ground that it was not accompanied by

a certificate from the Election Commission that his dismissal from

service was not on the ground of corruption or disloyalty to the

State.

11. This rejection of the appellant’s nomination form on the

ground that it was not accompanied by the requisite certificate

constitutes the major challenge in the Election Petition. There are

other grounds which are not relevant at this stage.

12. Mr. Pradeep Kumar Yadav, learned counsel appearing on

behalf 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 is raised by the Returning Officer on the nomination paper,

the candidate concerned should be allowed time till next day but one

to rectify the same. Such time was not permitted and as such the

rejection of the nomination is contrary to law. In spite of repeated

query, learned counsel failed to point out any evidence on record to

show that the appellant had demanded time to produce the

certificate not later than the next day but one following the date

fixed for scrutiny. Appellant in his Memorandum of Appeal has raised

the following ground: –

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“…that the appellant was not provided with
sufficient time/opportunity to receive and submit
the record, in the notice dated 30.04.2019 by the
District Election Office, from the Election
Commission of India…”

13. Mr. Harish N. Salve, learned senior counsel appearing for the

respondent contended that the phrase employed in the proviso is

“may be allowed time” and as such the time to be provided is at the

discretion of the Returning Officer and the appellant cannot claim

any manner of right. It is clear that there could be no occasion for a

person to be allowed time where he has not demanded any such

time. This contention on behalf of the appellant must be rejected.

14. Having noted the above contention, we feel that it would be

futile to advert to further details relating to the right claimed by the

appellant with reference to the proviso while contending that such

right available has been denied to him. This is for the reason that as

on the date of filing the nomination the appellant did not possess the

required certificate which was not produced along with the

nomination paper. In the oath letter dated 30.04.2019 relied upon

by the learned counsel for the appellant, he merely justifies the

absence of requisite certificate on the ground that he was not

notified earlier and that he has never been dismissed on the basis of

corruption or disloyalty to the State. Even the decision of the

Returning Officer dated 01.05.2019 records that in appellant’s reply

he has stated that Section 9 and 33 (3) are not applicable to his case

and he has submitted a representation to the Election Commission.

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15. The averment contained in the Appeal Memo refers to the

sequence wherein the appellant is stated to have made an attempt

through his authorised representative to secure the certificate from

the Office of the Election Commission of India but there is no

averment to the effect that such certificate had been secured. If

that be the position, it is clear that the appellant neither possessed

the required certificate on the date of the filing the nomination, at

the time of scrutiny, on the next day but one following the date fixed

for scrutiny or even at the time of the filing the Election Petition.

16. Section 81 of the Act provides that an Election Petition may be

presented by (a) any elector or (b) any candidate at such election.

The Explanation to Section 81 provides that an “elector” means a

person who was entitled to vote at the election to which the election

petition relates. In this case the election is to the Varanasi

Parliamentary seat. Obviously, the appellant is not an elector

registered in the Varanasi constituency since he is admittedly

enrolled as an elector of Bhiwani, Mahendragarh Parliamentary

Constituency, Haryana. His locus thus depends entirely on the

question whether he is a candidate or can claim to 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

been duly nominated as a candidate. Inter-alia the second part

4 S.79(b) ‘candidate’ means a person who has been or claims to have been duly nominated as a candidate at any
election;

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covers a person who considers himself entitled to have been duly

nominated as a candidate.

18. According to the appellant, he is a person who has claimed to

have been duly nominated as a candidate at the Varanasi Election

and, therefore, the High Court ought to have considered his Election

Petition as maintainable.

19. The question that arises is whether the appellant can claim to

have been a duly nominated candidate at the said election. The

answer must be in the negative. It is a condition for a valid

nomination of a person who has been dismissed from service, that

the nomination paper must be accompanied by a certificate to the

effect that the person seeking nomination has not been dismissed

for corruption or disloyalty to the State. Section 33(3) of the Act

itself provides the consequence of the absence of such certificate

and that is that such a person “shall not be deemed to be duly

nominated as a candidate”. The law itself deems that such a person

cannot be duly nominated.

20. The requirement of Section 33(3) that a nomination of a

dismissed officer must be accompanied by a certificate that he was

not dismissed on the ground of corruption or disloyalty to the State

must be read as obligatory. It is couched in a language which is

imperative and provides for a certain consequence viz. that such a

person shall not be deemed to be a duly nominated candidate. The

word ‘deemed’ in this provision does not create a legal fiction. It

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clarifies any doubt anyone might entertain as to the legal character

of a person who has not and states with definiteness that such a

person shall not be deemed to be duly nominated. It would,

therefore, be absurd to construe the legislative scheme as

permitting a person who has not filed his nomination in accordance

with Section 33 (3), as enabling him to claim that he is a duly

nominated candidate even though the provision mandates that such

a person shall not be deemed to be a duly nominated candidate.

21. We are of the view that the mandate of the law that such a

person shall not be deemed to be duly nominated must be given full

effect and no person must be considered as entitled to claim that he

has been duly nominated even though he does not comply with the

requirement of law. Though these observations were made in the

context of different requirements as to nominations, the law laid

down by this Court in several decisions including Charan Lal Sahu vs.

Giani Zail Singh & Anr.,

(1984) 1 SCC 390 must clearly govern the present case. This Court

in that case considered the question: when a person can claim to

have been duly nominated as a candidate under Section 13(a) of the

Presidential and Vice-Presidential Elections Act, 1952. The Court

observed: –

“11. ……But, the claim to have been duly
nominated cannot be made by a person whose
nomination paper does not comply 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

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requisite number of electors as proposers and
seconders cannot claim that he was duly
nominated. Such a claim can only be made by a
person who can show that his nomination paper
conformed to the provisions of Section 5-B and yet
it was rejected, that is, wrongly rejected by the
Returning Officer. To illustrate, if the Returning
Officer rejects a nomination paper on the ground
that one of the ten subscribers who had proposed
the nomination is not an elector, the petitioner can
claim to have been duly nominated if he proves
that the said proposer was in fact an ‘elector’.

12. Thus, the occasion for a person to make a
claim that he was duly nominated can arise only if
his nomination paper complies with the statutory
requirements which govern the filing of nomination
papers and not otherwise. The claim that he was
‘duly’ nominated necessarily implies and involves
the claim that his nomination paper conformed to
the requirements of the statute. Therefore, a
contestant whose nomination paper is not
subscribed by at least ten electors as proposers
and ten electors as seconders, as required by
Section 5-B (1)(a) of the Act, cannot claim to have
been duly nominated, any more than a contestant
who had not subscribed his assent to his own
nomination can. The claim of a contestant that he
was duly nominated must arise out of his
compliance with the provisions of the Act. It cannot
arise out of the violation of the Act. Otherwise, a
person who had not filed any nomination paper at
all but who had only informed the Returning Officer
orally that he desired to contest the election could
also content that he ‘claims to have been duly
nominated as a candidate’.”

Applying the above decision to the present case it was

necessary for the appellant to show that his nomination paper

conformed to the provisions of Section 33(3) of the Act.

22. Admittedly appellant’s nomination paper was not accompanied

by a certificate to the effect that he had not been dismissed for

corruption or disloyalty to the State. Any other construction of the

10
scheme of the law in this regard would be startling as it would

enable a person who was not an elector and not even entitled to be

nominated as a candidate for an election to question the election of

a returned candidate.

23. At this stage we would like to record that the material facts are

not in dispute. It is not in dispute that the appellant’s nomination

paper was not accompanied by a certificate from the Election

Commission, further, he was served a notice to cure the defect. He

did not do so. It is settled that for a person to make claim that he

was duly nominated, his nomination paper must comply with

statutory requirements which govern the filing of nomination papers

and not otherwise. [Vide Charan Lal Sahu v. Neelam Sanjeeva Reddy,

(1978) 2 SCC 500; Charan Lal Sahu v. Giani Zail Singh (Supra);

Mithilesh Kumar Sinha v. Returning Officer for Presidential Election &

Ors. (1993) SUPP 4 SCC 386; Charan Lal Sahu & Anr. v. K.R.

Narayanan & Anr. (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 consider

it necessary to issue notice to the respondent. The appeal does not

raise any arguable question of fact or law and admitting the appeal

would amount 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., speaking for the court observed as follows: –

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“It is thus clear that the appellate courts including
the High Court do have power to dismiss an appeal
summarily. Such power is inherent in appellate
jurisdiction. The power to dismiss summarily is
available to be exercised in regard to first appeals
subject to the caution that such power will be
exercised by way of exception and if only the first
appellate court is convinced that the appeal is so
worthless, raising no arguable question of fact or of
law, as it would be a sheer wastage of time and
money for the respondent being called upon to
appear, and would also be an exercise in futility for
the court. The first appellate court exercising
power to dismiss the appeals summarily ought to
pass a speaking order making it precise that it did
go into the pleas – of fact and/or law – sought to be
urged before it and upon deliberating upon them
found them to be devoid of any merit or substance
and giving brief reasons. This is necessary to
satisfy any superior jurisdiction whom the
aggrieved appellant may approach, that the power
to summarily dismiss the appeal was exercised
judicially and consciously by way of an exception.”

25. We find that the averments in the petition do not disclose that

the appellant has a cause of action which invest him with right to

sue. It is settled that where a person has no interest at all, or no

sufficient interest to support a legal claim or action he will have no

locus standi to sue. 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-not formal – reading of the plaint it is

manifestly vexatious, and meritless, in the sense of not disclosing a

clear right to sue, it should be nipped in the bud at the first hearing.

26. Section 83 of the Act allows only an elector or candidate to

maintain an Election Petition. Impliedly, it bars any other person

12
from filing an Election Petition. In this sense the Election Petition can

also be set to be barred by Section 81 read with Section 86(1) of the

Act.

27. We are, therefore, of the view that the present Election Petition

has been rightly nipped in the bud. The Civil Appeal is, therefore,

dismissed.

..…………………………..CJI.
[S. A. BOBDE]

…..…………………………..J.
[A. S. BOPANNA]

..…..………………………….J.
[V. RAMASUBRAMANIAN]

NOVEMBER 24, 2020
NEW DELHI

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