High Court
Case Details
El.Pet. 4/2011 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY The petitioner, who was a candidate of Assam Gana Parishad and contested the last General Election held in 2012 to the Assam Legislative Assembly Consti tuency from No.115 Moran Legislative Assembly Constituency (in short ’the Consti tuency’), has filed this election petition under Section 80, 80A read with Secti on 81 of the Representative of People Act, 1951 (in short the 1951 Act), calling in question the result of the said election declaring the respondent elected fr om the said Constituency, on the ground of improper acceptance of nomination pap er and also on the ground of non-compliance with the provision of the 1951 Act a nd the orders made by the Election Commission of India, within the meanting of S ection 100(1)(d)(i) & (iv) of the 1951 Act, contending inter alia that the respo ndent/returned candidate, along with the nomination paper, did not submit legall y valid affidavits, as required under Section 33A of the 1951 Act and also under the order of the Election Commission dated 27.03.2003 and the said affidavits h aving not been duly sworn, the nomination paper of the respondent ought to have been rejected for non-compliance of the provisions of the 1951 Act as well as th e order of the Election Commission of India. 2. ed as under:- The facts relevant for the purpose of the election petition may be notic The Returning Officer of the Constituency on 10.03.2011 issued a public notice of election, as required by Section 31 of the 1951 Act read with Rule 3 of the Conduct of Election Rules, 1961, of the intended election, invitin g nomination of candidates fixing 17.03.2011 as the last date for submission of nomination, 18.03.2011 as the date of scrutiny of nomination, 21.03.2011 as the last date of withdrawal of candidature, 04.04.2011 as the date of poll and 13.05 .2011 as the date of counting of votes. As per the schedule fixed, the election process was required to be completed on 18.05.2011. 5(five) candidates including the petitioner and the respondent/returned candidate filed their nomination pap ers and contested the election from the said Constituency. The result of the ele ction was declared on 13.05.2011, declaring the respondent/returned candidate el ected from the said Constituency, having secured highest number of valid votes. The valid votes polled by the candidates in the said election, are as follows:- (i) (ii) Smt. Jibantara Ghatowar (respondent) Sri Sunil Rajkonwar (petitioner) 17,650 2,343 (iii) (iv)
Legal Reasoning
29. There is no dispute to the proposition of law that sub-clauses (i) and ( iv) of Section 100(1)(d) of 1951 Act provides for two distinct grounds, namely, for improper acceptance of any nomination and for non-compliance with the provis ions of the Constitution or the Act, or of any rules or orders under the Act, as held by the Apex Court in S.M. Banerji (supra). 30. Having noticed, the relevant provisions of 1951 Act and various pronounc ements of the Apex Court, as discussed above, I shall now proceed to discuss the relevant evidence adduced by the parties in the present case. 31. The election petitioner having challenged the election of the respondent /returned candidate and praying for declaration of the result as void, on the gr ound enumerated in clauses (i) and (iv) of Section 100(1)(d) of 1951 Act, the bu rden lies on the petitioner to prove its ingredients constituting improper accep tance of nomination paper. 32. The election petitioner has pleaded that the affidavit dated 15.03.2011( Ext.-4) and dated 16.03.2011(Ext.-7) are not duly sworn affidavits as, while the Ext.-4 affidavit bears the Sl. No.2563, the Ext.-7 affidavit bears the Sl. No.2 561, though sworn one day after the date of swearing of Ext.-4 affidavit. It has also been pleaded that Ext.-7 affidavit, disclosing the pendency of criminal ca se against the respondent/returned candidate, where cognizance has been taken by the Court, has been filed on the date of scrutiny i.e. on 18.03.2011. The election petitioner (PW-1) in his examination-in-chief has reiterate 33. d the same. During cross-examination, he has, however, stated that the nominatio n paper submitted by the returned candidate ought to have been rejected as it wa s supported by a false affidavit. He has further stated that what he means by th e term (cid:28)duly sworn affidavit (cid:29) is filing of a false affidavit along with the nomi nation paper. PW-1 though has claimed that the affidavit dated 16.03.2011 (Ext.- 7) was neither filed along with the nomination paper nor before the last date of filing the nomination paper, but was filed on the date of scrutiny, the Returni ng Officer, PW-4, who has been examined by the election petitioner, has stated t hat both the affidavits dated 15.03.2011 (Ext.-4) and 16.03.2011 (Ext.-7) were f iled along with the nomination paper on 15.03.2011 and was never filed on the da te fixed for scrutiny of nomination paper. On the face of such positive statemen t of the Returning Officer and in the absence of any other corroborative evidenc e adduced by the election petitioner relating to the filing of the affidavit dat ed 16.03.2011 (Ext.-7) on the date of scrutiny of nomination paper, his statemen t to that effect cannot be accepted, more so, when the election petitioner did n ot examine any other candidates or their representative, who were present at the time of scrutiny of nomination paper. The election petitioner, therefore, has f ailed to prove that the affidavit dated 16.03.2011 (Ext.-7) was not filed along with the nomination paper, be it on 15.03.2011 or 16.03.2011, but was filed afte r the last date for filing nomination paper was over. 34. This leads to the question as to whether the Returning Officer was justi fied in considering the affidavit dated 16.03.2011 (Ext.-7) while scrutinizing t he nomination paper filed by the respondent. It has come out from the evidence o f PW-4, Returning Officer, that both the affidavits dated 15.03.2011 (Ext.-4) an d 16.03.2011 (Ext.-7) were filed along with the nomination paper on 15.03.2011. While in Ext.-4 affidavit the respondent/returned candidate did not disclose pen dency of any criminal proceeding where the cognizance has been taken by Court, i n the affidavit dated 16.03.2011 (Ext.-7) the information relating to the penden cy of the criminal case against the respondent/returned candidate, where cogniza nce has been taken by Court, has been furnished along with the year of taking co gnizance but not the date. The Returning Officer cannot held to be at fault for taking into consideration the affidavit (Ext.-7), disclosing the pendency of cri minal case, in view of the requirement of filing such affidavit. Non-discloser o f the exact date of taking cognizance in the criminal case, in the Ext.-7 affida vit dated 16.03.2011, is not a material defect so as to render the affidavit as not duly sworn affidavit. 35. Though it has been contended by the election petitioner that the affidav its both dated 15.03.2011(Ext.-4) and 16.03.2011(Ext.-7) are not duly sworn affi davits within the meaning of Section 33A as well as the order of the Election Co mmission dated 27.03.2003, there being discrepancy in the serial numbers put and that the Notary has signed the blank papers, which have been converted to the a ffidavits by the respondent/returned candidate later, the same also could not be proved by the election petitioner by adducing any cogent evidence. PW-5, the No tary, before whom the affidavit was sworn and who has been examined by the elect ion petitioner as his witness, in her deposition has stated that she has wrongly put the Sl. No.2561 in the Ext.-7 affidavit dated 16.03.2011 instead of 2564, a s has been recorded in the register she is required to maintain, which register, however, has not been called for by the election petitioner to prove his case. According to the PW-5 the mistake in mentioning the serial number in Ext.-7 affi davit dated 16.03.2011 is a human error. This witness has also not been put any question, not even a suggestion, by the election petitioner that she has put her signatures in the blank papers which were subsequently converted to the affidav its, being Exts.-4 and 7. PW-5, on the other hand, has made a categorical statem ent that the respondent/returned candidate was personally present before her at the time of swearing the affidavit. In view of such evidence the election petiti oner could not prove that there is any defect in the affidavits being Exts.-4 an d 7 or the Notary has put her signature in the blank papers which are subsequent ly converted to the affidavits. Mere mistake committed by the Notary in putting the serial number in the Ext.-7 affidavit would not render the same defective so as to reject the same, when there is evidence on record that the said affidavit was sworn by the respondent before the Notary (PW-5). 36. The Returning Officer, PW-4, as discussed above, in his evidence has sta ted about filing of the nomination paper along with both the affidavits dated 15 .03.2011 and 16.03.2011, Ext.-4 and Ext.-7, respectively, by the respondent/retu rned candidate. The election petitioner has in his evidence stated that accordin g to him the duly sworn affidavit means the affidavit which does not contain any false information. Even if the said affidavit contains any false information, t he same cannot be the ground for rejection of the nomination paper, as held by t he Apex Court in People’s Union for Civil Liberties (supra). Even assuming that the respondent had filed only the affidavit dated 15.03.2011 (Ext.-4) along with the nomination paper and not the affidavit dated 16.03.2011 (Ext.-7), as conten ded by the election petitioner, since admittedly the affidavit dated 15.03.2011 was filed, without disclosing the criminal antecedent of the respondent/returned candidate, the Returning Officer cannot refuse to accept the nomination paper, the scrutiny of correctness or otherwise of the contents of the affidavit, at th e time of scrutiny of the nomination paper, being not within his purview. 37. The High Court, as discussed above, can declare the election of the retu rned candidate void on the grounds enumerated in Section 100(1)(d) of 1951 Act p rovided it is pleaded and proved by the election petitioner that the result of t he election, in so far as it concerns the returned candidate, has been materiall y affected. In the instant case, the difference of vote polled between the elect ion petitioner and the returned candidate is about 30,000. The election petition er, as noticed above, in the election petition has not even made a whisper about materially affecting the result of the returned candidate because of improper a cceptance of nomination paper. No evidence in that respect has also been led, wh ich in any case cannot allowed to be led in the absence of any pleadings in that regard. In view of the aforesaid discussion, I am of the view that the election 38. petitioner has miserably failed to prove his case and hence the election petitio n is dismissed with cost of Rs.5,000/-.
Arguments
Sri Swarna Saikia Deori Sri Shyamal Bhumij (v) Sri Lakhicharan Swausi - - - 47,143 - 14,571 - 752 It has been pleaded by the petitioner in the election petition that two 3. affidavits filed by the respondent/returned candidate, one dated 15.03.2011 and the other dated 16.03.2011, and though in the first affidavit the returned candi date did not disclose the fact of the pendency of the case, where cognizance has been taken by the Court, but in the second affidavit the respondent/returned ca ndidate has disclosed the same, those affidavits are not duly sworn affidavits s o as to construe the same as the affidavits required to be filed under Section 3 3A of the 1951 Act read with the order dated 27.03.2003 issued by the Election C ommission, there being inherent defects in such affidavits. The said pleadings, however, has been denied by the respondent/returned candidate in the written sta tement filed, contending inter alia that she has filed duly sworn affidavits. It has further been pleaded that though in the affidavit dated 15.03.2011, filed a long with the nomination paper, the fact of pendency of a criminal proceeding ha s not been disclosed, because of the bonafide mistake and oversight, she immedia tely on the next day i.e. on 16.03.2011, sworn another affidavit in the prescrib ed format disclosing the criminal proceeding pending against her, where the Cour t has taken cognizance of, which was filed before the last date and the time fix ed for filing the nomination paper. The respondent/returned candidate has assert ed that those affidavits are duly sworn affidavits within the meaning of Section 33A of the 1951 Act as well as the order dated 27.03.2003 passed by the Electio n Commission of India. Based on the pleadings of the parties, the following issues were framed 4. vide order dated 11.06.2012: (i) Whether the affidavits filed by the returned candidate along with the no mination paper and subsequent thereto are duly sworn affidavits within the meani ng of Section 33(A) of the Representation of Peoples Act, 1951 read with the Ele ction Commission’s order dated 27.3.2003, if not, whether it constitute the grou nd for rejection of the nomination paper, consequently declaration of the result of the election as void under the 1951 Act? (ii) cepted by the returning officer? Whether the nomination paper of the returned candidate was improperly ac 5. The election petitioner as well as the respondent/returned candidate in order to prove their respective cases, have examined their witnesses and proved a number of documents. While the election petitioner has examined 5(five) witnes ses, being the election petitioner himself as PW-1; Shri Krishna Kr. Dwivedi, th e District Election Officer as PW-2; Smt. Kanta Das, the Election Officer as PW- 3; Shri Prabhat Konwar, the Returning Officer of the Constituency as PW-4 and Sm t. Manashi Bora, the Notary, as PW-5, the respondent/returned candidate has exam ined only herself as DW-1. The witnesses were cross-examined by the respective p arties. The election petitioner has proved the order dated 12.12.2006 passed by the learned Addl. Chief Judicial Magistrate, Dibrugarh in Complaint Case No.123c /2006 registered under Section 420/468/193 IPC; the examination-in-chief in the form of an affidavit filed by the election petitioner; the notice dated 02.03.20 11 issued by the District Election Officer notifying the schedule of election; a ffidavit bearing Sl. No.2563 dated 15.03.2011; affidavit bearing Sl. No.2562 dat ed 15.03.2011; affidavit bearing Sl. No.2561 dated 16.03.2011 and another affida vit bearing Sl. No.2561 dated 16.03.2011, as Exts.-1 to 7, respectively. The res pondent/returned candidate has proved her examination-in-chief filed in the form of affidavit, which has been marked as Ext.-A. 6. I have heard Mr. T. Das, learned counsel for the election petitioner and Mr. R. Sharma, learned counsel appearing for the respondent/returned candidate. Referring to the deposition of the witnesses examined by the election pe 7. titioner and also the documents exhibited, more particularly the affidavits date d 15.03.2011 and 16.03.2011, which are marked as Exts.-4 and 7, it has been subm itted by the learned counsel for the election petitioner that while Ext.-4 affid avit dated 15.03.2011 bears the Sl. No.2563, Ext.-7 affidavit dated 16.03.2011 b ears the Sl. No.2561, put by the notary before whom such affidavits were sworn, wherefrom it appears that those affidavits were subsequently manufactured for th e purpose of filing the same at a subsequent stage. According to the learned cou nsel the affidavit dated 16.03.2011 (Ext.-7) was filed only on the date of scrut iny i.e. on 18.03.2011 and the same having not been filed before expiry of the t ime and date fixed for filing the nomination paper, the said affidavit could not have been taken into consideration by the Returning Officer while scrutinizing the nomination paper filed by the respondent/returned candidate. It has also bee n submitted that even assuming both the affidavits being Exts.-4 and 7 were file d along with the nomination paper, there being no indication and no application having been filed before the Returning Officer disclosing which of the affidavit s should be taken into consideration, both affidavits ought to have been rejecte d by the Returning Officer, as in one affidavit dated 15.03.2011 (Ext.-4) while it has been mentioned that no criminal proceeding has been pending, in other aff idavit dated 16.03.2011 (Ext.-7), it has been disclosed that a criminal proceedi ng, where cognizance has been taken, has been pending against the respondent/ret urned candidate. It has also been submitted that the said affidavit dated 16.03. 2011 is not in the format prescribed by the Election Commission of India, as the respondent/returned candidate did not disclose the date of taking cognizance, a s only the year 2006 has been mentioned. The learned counsel, therefore, submits that had the Returning Officer rejected both the affidavits, which he ought to have done, it would have been non-compliance of the provision of Section 33A of 1951 Act as well as the direction issued by the Election Commission vide order d ated 27.03.2003 and consequently the nomination of the respondent/returned candi date would have been rejected. The learned counsel submits that the said affidav its being not duly sworn, ought to have been rejected by the Returning Officer. 8. The learned counsel referring to the objection dated 18.03.2011 (Ext.-8) has also submitted that despite filing the said objection by the election petit ioner against the nomination paper submitted by the respondent/returned candidat e, the Returning Officer has improperly accepted the nomination paper, though it discloses the defects in the affidavits and are not duly sworn affidavits apart from filing of the Ext.-7 affidavit only on 18.03.2011 i.e. on the date of scru tiny. 9. The learned counsel, placing reliance on the decision of the Apex Court in S.M. Banerji Vs. Sri Krishna Agarwal reported in AIR 1960 SC 368, has submitt ed that if the Returning Officer, despite the defects in the nomination paper an d filing of an objection raising to its reception on that ground, accepts the no mination of a candidate, it would amount to improper acceptance of nomination pa per within the meaning of Section 100(1)(d)(i) of 1951 Act, for non-compliance o f the provisions of Section 33A of the said Act as well as Section 100(1)(d)(iv) , and also for violation of the direction of the Election Commission contained i n the order dated 27.03.2003 requiring filing of a duly sworn affidavit disclosi ng pendency of the criminal case, where cognizance has been taken by the Court. Mr. Sharma, learned counsel appearing for the respondent/returned candid 10. ate, on the other hand, drawing attention of the Court to the pleadings in the e lection petition, has submitted that according to the election petitioner himsel f the defects in the affidavit filed along with the nomination paper being suppr ession of fact relating to the framing of charge in the criminal case pending ag ainst the respondent/returned candidate, there being no case pending against the respondent/returned candidate, where the charge has been framed, the election p etition does not disclose any cause of action. It has also been submitted that i t has come out in evidence that both the affidavits, one dated 15.03.2011 (Ext.- 4) and the other dated 16.03.2011 (Ext.-7), respectively, were filed along with the nomination paper filed by the respondent/returned candidate and while in Ext .-4 affidavit, because of the inadvertent mistake the fact of pendency of a crim inal case where cognizance has been taken by the Court has not been mentioned, i n Ext.-7 affidavit the fact of pendency of the criminal case where cognizance ha s been taken, has been disclosed. The learned counsel further submits that non-d iscloser of the exact date of taking cognizance and mentioning the year only, wo uld not render the affidavit defective, so as to constitute non-compliance of th e provisions of Section 33A of the 1951 Act as well as the direction of the Elec tion Commission contained in the order dated 27.03.2003. 11. Referring to the deposition of Manashi Bora (PW-5), Mr. Sharma further s ubmits that the said witness has admitted that by mistake she has put Sl. No.256 1 in the affidavit dated 16.03.2011 (Ext.-7), instead of 2564, which is nothing but a human error, though she in the register required to be maintained by the N otary entered the serial number of the said affidavit, being Ext.-7, as 2564. It has further been submitted that the election petitioner’s case being that the a ffidavit dated 16.03.2011 (Ext.-7), is defective on that count, he ought to have prove the register maintained by the Notary, where the correct serial number, b eing 2564, has been mentioned, to negate the version of PW-5, which the election petitioner did not do and as such he has failed to prove his case. In any case, according to the learned counsel, mere defect in putting the serial number in t he affidavit would not render the same defective so as to reject the nomination paper filed by the respondent/returned candidate. Mr. Sharma further submits tha t under Section 33A of the 1951 Act what a candidate is required to do is to fur nish the information specified therein, in his nomination paper and since the el ection petitioner pursuant to the Election Commission’s order dated 27.03.2003 h as filed the affidavit disclosing the information relating to the pendency of a case where cognizance has been taken by the Court, the Returning Officer has rig htly acted on the second affidavit dated 16.03.2011 (Ext.-7), though in the earl ier affidavit dated 15.03.2011 (Ext.-4) the respondent/returned candidate did no t disclose the pendency of such criminal case. 12. Mr. Sharma, the learned counsel referring to the provisions of Section 1 00(1)(d) of the 1951 Act submits that the election petitioner, so as to set asid e the election of a returned candidate on the ground of improper acceptance of n omination paper or non-compliance with the provisions of the Act or the order ma de by the Election Commission, must plead and prove that because of improper acc eptance of nomination, the result of the election, in so far as it concerns the returned candidate, has been materially affected. In the instant case, according to the learned counsel, the election petitioner has neither pleaded in the elec tion petition nor proved by adducing any evidence that the result of the electio n, in so far as it concerns the returned candidate, has been materially affected . The learned counsel, therefore, submits that the election petition deserves to be dismissed on that count alone. 13. It has also been submitted by Mr. Sharma that according to the election petitioner himself, the duly sworn affidavit being the affidavit disclosing the correct facts and since the affidavits, being Exts.-4 and 7, contained the false information, those are not duly sworn affidavits, the Returning Officer did not commit any illegality in accepting the nomination paper, as the Returning Offic er, while scrutinizing the nomination papers submitted by the candidates, cannot go into the question as to whether the statement made in the affidavits, requir ed to be filed along with the nomination paper disclosing the information under Section 33A of the 1951 Act, are correct or false. The Returning Officer is only required to see as to whether any affidavit has been filed and in the instant c ase even assuming that the information furnished by the returned candidate in th e form of the affidavits are not correct information, the Returning Officer havi ng no jurisdiction to reject the same on that ground has rightly accepted by the nomination paper, submitted by the respondent/returned candidate. 14. The learned counsel referring to the deposition of the Returning Officer (PW-4), has also submitted that the said witness in categorical terms has state d about filing of the nomination paper on 16.03.2011 along with both the affidav its dated 15.03.2011 (Ext.-4) and 16.03.2011 (Ext.-7) and there being no evidenc e on record adduced by the election petitioner to substantiate his case that the affidavit dated 16.03.2011 (Ext.-7) was filed only on the date of scrutiny i.e. on 18.03.2011, the election petitioner is not entitled to any relief, he having failed to discharge his burden of proof of filing the affidavit after the last date and time fixed for filing the nomination paper was over. The learned counse l referring to the deposition of the Returning Officer has also submitted that t hough the objection dated 18.03.2011 (Ext.-8) was filed after the process of scr utiny was over, the Returning Officer re-scrutinized the nomination paper filed by the respondent/returned candidate and found the same to be in order. It has a lso been submitted that though the election petitioner in his deposition has als o stated that the Notary (PW-5) has put her signature and seal on the blank pape rs, which were subsequently converted into affidavits by the respondent/returned candidate, the election petitioner could not prove the same and even did not pu t any question to the PW-5 Manashi Bora, the Notary and not even a suggestion, w ho during her examination-in-chief has categorically stated that the respondent/ returned candidate was personally present before her at the time of swearing of the affidavits (Exts.-4 to 7). 15. The learned counsel in support of his contention has placed reliance on the decision of the Apex Court in Santosh Yadav Vs. Narender Singh reported in A IR 2002 SC 241, Ramesh Rout Vs. Rabindra Nath Rout reported in (2012)1 SCC 762, Mangani Lal Mandal Vs. Bishnu Deo Bhandari reported in (2012)3 SCC 314 and Shamb hu Prasad Sharma Vs. Charandas Mahant & ors. reported in (2012)11 SCC 390. 16. I have considered the submissions advanced by the learned counsel for th e appearing parties and also perused the pleadings as well as the evidence adduc ed by the parties, both oral and documentary. 17. Before dealing with the pleadings as well as the evidence adduced by the parties, I proposed to discuss relevant provisions of 1951 Act, as well as the Election Commission’s order dated 27.03.2003, apart from various pronouncements of the Apex Court. 18. Section 33A of the 1951 Act, which has been inserted w.e.f. 24.08.2002, confers a right to the voters to know about the criminal antecedents of a candid ate. It provides that a candidate shall, apart from any information which he is required to furnish, under the Act or the rules made thereunder, in his nominati on paper delivered under sub-section (1) of Section 33, shall also furnish the i nformation as to whether - (i) he is accused of any offence punishable with impr isonment for two years or more in a pending case in which a charge has been fram ed by the Court of competent jurisdiction; (ii) he has been convicted of an offe nce other than any offence referred to in sub-section (1) or sub-section (2), or covered in sub-section (3) of Section 8 and sentenced to imprisonment for one y ear or more. It also requires the candidate or his proposer to deliver an affida vit sworn by the candidate in a prescribed form verifying the information specif ied under sub-section (1) of Section 33 at the time of delivering to the Returni ng Officer the nomination paper. The Returning Officer is also required to displ ay the aforesaid information by affixing a copy of the affidavit, at a conspicuo us place at his office for the information of the electors relating to a constit uency for which the nomination paper is delivered. Grounds for declaring election to be void.- (1) Subject to the provision 19. Sub-section (1) of Section 100 of the 1951 Act empowers the High Court t o declare the election of the returned candidate as void, on any of the eventual ities mentioned in clauses (a) to (d). Since the allegation in the election peti tion is relating to the improper acceptance of the nomination paper of the respo ndent/returned candidate and non-compliance of the provisions contained in Secti on 33A of the 1951 Act as well as the order of the Election Commission dated 27. 03.2003, clause (d) of sub-section (1) of Section 100 of the 1951 Act only, is r eproduced below:- 100. s of sub-section (2), if the High Court is of opinion- (a) (b) (c) (d) date, has been materially affected - (i) (ii) date by an agent other than his election agent, or (iii) tion of any vote which is void, or (iv) & & & & &.. & & & & &.. & & & & &.. that the result of the election, insofar as it concerns a returned candi by the improper acceptance of any nomination, or by any corrupt practice committed in the interests of the returned candi by any non-compliance with the provisions of the Constitution or of this by the improper reception, refusal or rejection of any vote or the recep Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void. 20. Section 125A of the 1951 Act provides the penalty in case of failure to furnish information relating to sub-section (1) of Section 33A and for giving fa lse information which the candidate or his proposer knows or has reason to belie ve to be false as well as for concealment of any information. 21. Clause (d) of Section 100(1), therefore, provides that the High Court sh all declare the election of the returned candidate to be void on any of the even tualities mentioned in sub-clauses (i) to (iv) provided the result of the electi on in so far as it concerns the returned candidate has been materially affected. The election petitioner in an election petition, therefore, must plead and prov e that because of the improper acceptance of the nomination paper or non-complia nce of the provisions of the 1951 Act or the order passed by the Election Commis sion, the result of the election, in so far as it concerns the returned candidat e has been materially affected. The Apex Court in Union of India Vs. Association for Democratic Reforms 22. reported in (2002)5 SCC 294 had directed the Election Commission to call for inf ormation on affidavit by issuing necessary order in exercise of its power under Article 324 of the Constitution of India from each candidate seeking election to Parliament or a State Legislature as a necessary part of his nomination paper, furnishing therein, information on the following aspects in relation to the cand idature: I. Whether the candidate is convicted/acquitted/ discharged of any criminal offence in the past - if any, whether he is punished with imprisonment or fine. II. Prior to six months of filing of nomination, whether the candidate is ac cused in any pending case, of any offence punishable with imprisonment for two y ears or more, and in which charge is framed or cognizance is taken by the court of law. If so, the details thereof. III. f his/her spouse and that of dependants. IV. public financial institution or government dues. V. The assets (immovable, movable, bank balance, etc.) of a candidate and o Liabilities, if any, particularly whether there are any overdues of any The educational qualifications of the candidate. 23. The Election Commission of India on 28.06.2002 passed an order for imple mentation of the directions contained in the said judgment. In the said order th e Election Commission has also directed that furnishing of any wrong or incomple te information or suppression of any material information by any candidate in or from the said affidavit may also result in the rejection of his nomination pape r where such wrong or incomplete information or suppression of material informat ion is considered by the Returning Officer to be a defect of substantial charact er, apart from inviting penal consequences under the Indian Penal Code for furni shing wrong information to a public servant or suppression of material facts. The 1951 Act was, thereafter, amended by insertion of Sections 33A and 3 24. 3B by Representation of the People (Third Amendment) Act, 2002, which provisions came into force w.e.f. 24.08.2002 and 02.05.2002, respectively. Section 33B, wh ich has been inserted by way of amendment just to negate the aforesaid judgment of the Apex Court and also the order of the Election Commission, stipulates that no candidate shall be liable to disclose or furnish any such information, in re spect of his election, which is not required to be disclosed or furnished under the Act or the rules framed thereunder, notwithstanding anything contained in an y judgment, decree or order of any Court or any direction, order or any other in struction issued by the Election Commission. 25. Constitutional validity of Section 33B of 1951 Act came to be challenged before the Apex Court in People’s Union for Civil Liberties Vs. Union of India reported in (2003)4 SCC 399. The Apex Court in the said case also considered the Election Commission’s aforesaid order dated 28.06.2002. The Apex Court while de claring Section 33B of the 1951 Act as illegal, null and void, has also held tha t while no exception can be taken for insistence of affidavit with regard to the matters specified in the judgment in Association for Democratic Reforms case. T he Apex Court, however, has held that the direction to reject the nomination pap er for furnishing wrong information or concealing material information and provi ding for a summary enquiry at the time of scrutiny of the nominations, as stipul ated by the Election Commission in its order dated 28.06.2002, is not justified. The Election Commission, therefore, was directed to revise its instructions in the light of directions issued in Association for Democratic Reforms case and as provided under the 1951 Act and its 3rd Amendment. The Election Commission, thereafter, issued the order dated 27.03.2003 r 26. equiring each candidates to file an affidavit, duly sworn before a Magistrate of the First Class or a Notary Public or a Commissioner of Oaths appointed by the High Court or the State concerned, disclosing information in regard to the matte rs specified in Association for Democratic Reforms case as well as in People’s U nion for Civil Liberties case and further intimating that non-furnishing of the affidavit by any candidate shall be considered to be violation of the order of t he Apex Court and the nomination of such candidate shall be liable to rejection by the Returning Officer at the time of scrutiny of nominations and also for dis playing a copy of the affidavit on the notice board of the office of the Returni ng Officer, apart from making the copies thereof available freely and liberally to all other candidates and the representatives of the print and electronic medi a. It has further been informed by the said order that if any rival candidate fu rnishes information to the contrary, by means of a duly sworn affidavit, then su ch affidavit of the rival candidate shall also be disseminated along with the af fidavit of the candidate concerned in the manner directed above. The format, in which the affidavit has to be filed, has also been annexed to the said order. 27. The Apex Court in Ramesh Rout (supra), referring to its earlier decision , has held that for rejection of the nomination paper of a candidate, on the gro und of defect, it must be of substantial nature. The Apex Court in Jeet Mohinder Singh Vs. Harminder Singh Jassi reported in AIR 2000 SC 256(1) has also held th at when the nomination paper of a candidate is accepted, the Returning Officer n eed not record any reason therefor, the reasons are required to be recorded in w riting by making brief statement thereof in case of rejection of nomination pape r. 28. In Santosh Yadav(supra), the Apex Court while dealing with the term (cid:28)res ult of election materially affected (cid:29) occurring in Section 100(1)(d) of 1951 Act, in case of improper acceptance of nomination paper, has held that the election petitioner has to make out by raising specific pleadings setting out all materia l facts and adducing cogent evidence that for improper acceptance of nomination paper, the result of the election of the returned candidate, has been materially affected. In Mangani Lal Mandal(supra), the Apex Court has reiterated the law t hat it is the sine qua non for declaring the election for a returned candidate t o be void on the ground under clause (iv) of Section 100(1)(d) that such breach or non-observance has resulted in materially affecting the result of the returne d candidate, which has to be specially pleaded and proved by the person challeng ing the election. The same view has also been taken by the Apex Court in Shambhu Prasad Sharma(supra).