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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
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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
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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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