Case: Ashok Shankarrao Chavan &amp; Others Vs. Dr. Madhavrao Kinhalkar &amp; Others

3. On the aforesaid background, let us briefly examine the facts of this case. The appeal (@ SLP(C) No. 29882 of 2011) has been filed by the candidate who was elected in the Assembly elections in the State of Maharashtra. The results of the election to the Assembly were declared on 22.10.2009. The Respondent No. 1 was one of the candidates who contested the said election as against the Appellant. The Appellant was declared elected and the Respondent No. 1 was an unsuccessful candidate. As per the provisions of the Representation of the People Act, 1951 and the Conduct of Election Rules, 1961 (hereinafter called "the Act and the Rules"), within one month from the date of publication of the results, a statement of election expenses has to be filed by the candidate with the District Election Officer (hereinafter called "DEO"). The Appellant stated to have filed his statement of election expenses on 17.11.2009, i.e., within one month of the date of election. It is also brought to our notice that on 24.11.2009, the DEO, Nanded forwarded his report to the Election Commission of India and that according to the Appellant, nothing adverse was stated in the said report. However, on 02.12.2009, the Respondent No. 1 filed a complaint with the Election Commission alleging violation of the Election Code based on newspaper reports. Besides the above complaint of the Respondent No. 1 to the Election Commission, he also filed an Election Petition before the Election Tribunal (High Court) on 04.12.2009. This very allegation which was raised before the Election Commission was stated to have been raised in the Election Petition as well. The Election Petition was dismissed by the Election Tribunal (High Court) on 18.10.2012 on the ground of want of material particulars. The Respondent No. 1 thereby preferred a statutory appeal before this Court in Civil Appeal No. 9271 of 2012, which was also dismissed by this Court on 21.01.2013.

Reasoning: 21. Having dealt with the rival contentions of the parties, it would be necessary to find out whether the impugned order of the Election Commission is correct orpurpose is to find out an answer to the question posed for consideration, namely, whether under Section 10A of the Act, the Election Commission has been empowered to hold an enquiry to ascertain the correctness or otherwise of the election expenses incurred by a returned candidate for the purpose of passing the order of disqualification, either at the instance of the candidate who also contested in the said election or by any other person or based on any other information received by the Election Commission through some reliable sources. For the said purpose, in our considered view, the following provisions under the Constitution and the various sections under the Act and Rules are required to be noted.In our considered opinion if such a onerous responsibility has been imposed on the Election Commission while scrutinizing the details of the accounts of the election expenses submitted by a contesting candidate, it will have to be stated that while discharging the said responsibility, every care should be taken to ensure that no prejudice is caused to the contesting candidate. The Election Commission should also ensure that no stone is left unturned before reaching a satisfaction as to the correctness or the proper manner in which the lodgment of the account was carried out by the concerned candidate. If such a meticulous exercise has to be made as required under the law, it will have to be held that the onerous responsibility imposed on the Election Commission should necessarily contain every power and authority in him to hold an appropriate enquiry. Only such an exercise would ensure that in ultimately arriving at the satisfaction for the purpose of examining whether an order of disqualification should be passed or not as stipulated under Section 10A, the high expectation of the electorate, that is the citizens of the country reposed in the Election Commission is fully ensured and also no prejudice is caused to the contesting candidate by casually passing any order of disqualification without making proper ascertainment of the details of the accounts, the correctness of the accounts and the time within which such account was lodged by the candidate concerned.When it is stipulated under Articles 102(1)(e) and 191(1)(e) to the effect that the ascertainment of vacation of a seat of a Member of Parliament or a Member of a State Legislature would depend upon a disqualification suffered by or under the provisions of the Act, it will have to be held that the procedure to be followed for passing such an order of disqualification should be befitting the requirement of Section 10A or otherwise when an opinion is sought for from the Election Commission under Article 103(2) or 192(2), it would be rather impossible for the Election Commission to sustain any such order of disqualification. The Act in that respect cannot be held to have imposed in the Election Commission a responsibility which will not synchronise with the original order of disqualification to be made under Section 10A of the said Act and for the ultimate opinion to be rendered after such disqualification order is passed for the purpose of enabling the President of India and the Governor of a State to take appropriate decision for ascertaining the status of a member to vacate his seat as a Member of Parliament or State Legislature. It would be incongruous to visualise such a situation while reading Articles 101 to 103 and 190 to 192 of the Constitution, read along with Sections 146 and 10A of the Act. We, therefore, have no hesitation in asserting the legal position that an order to be passed under Section 10A of the said Act, could be no less important than an opinion to be rendered by the Election Commission under Section 146 when sought for by the President of India or the Governor of the concerned States. In our considered opinion, therefore, the exercise to be made under Section 10A of the said Act would certainly include the requirement of not a farce of an enquiry but a true and complete one to determine whether the return of election expenses by an elected candidate is a true/correct or false/bogus return and that would not depend upon the decision of the Election Tribunal (High Court), which is provided under the Act for validating the election of a returned candidate on very many grounds set out in Section 123 of the Act, including the one under Section 123(6) which contemplates the compliance of the requirement under Sections 77 and 78 of the Act. However, it will have to be stated that if the said issue was squarely dealt with by the Election Tribunal (High Court) based on the entire materials that were also placed before the Election Commission and the Election Tribunal (High Court) had dealt with the said issue in detail and recorded a finding after examining such materials threadbare, there is no reason for the Election Commission to give due weight to such a finding of the Election Tribunal (High Court) while exercising its jurisdiction under Section 10A. With this we wish to deal with the various submissions of the respectivefind force in the submission of the learned counsel for the Respondents. As was pointed out by us earlier, the challenge to an election by way of an Election Petition is provided for under Article 329(b) of the Constitution and the manner in which such Election Petition is to be filed and the procedure to be followed were all set out in Sections 80 to 116 of the Act.Having considered the respective submissions of the learned counsel, we are also convinced that the decision in L.R. Shivaramagowda (supra) does not call for reconsideration. As rightly pointed out by the learned Senior Counsel for the Election Commission, as well as the other learned counsel for the Respondents, the scope and ambit of Section 7(c) has been widened by metes and bounds in Section 10A in its presentdealing with the said contention, it will have to be noted that having regard to the scope of Articles 101 to 103 and 190 to 192 of the Constitution, any order of disqualification passed against a Member of Parliament or a Member of a Legislature will have to be considered by the President of India and the Governor of a State respectively for taking a decision as to the consequence that should follow by reason of such an order of disqualification. Even at that stage, there is another filter point in the form of an opinion to be rendered by the Election Commission to the President of India or the Governor of the State before taking a decision as to whether the member elected should vacate his office pursuant to such disqualification. For the reasons which we have elaborately stated while dealing with the scope and power of jurisdiction of the Election Tribunal (High Court) and the power of the Election Commission under Section 10A, it will have to be stated that the said submission no longer survives for consideration. The same is, therefore, rejected.When we consider the above submission, we find force in the submissions of the learned counsel for the Respondents. Reading Section 10A along with Rules 87 to 90, in particular, the right conferred on any person to seek for inspection of the accounts submitted, it will have to be held that such a right is not conferred merely to look into the details of the account. If based on the inspection, made by a person under Rule 88 and the attested copies of such accounts disclose that the candidate concerned committed a very serious illegality in the matter of submission of the account of election expenses, it must be stated that such a person will have every right to bring it to the notice of the Election Commission for taking appropriate legal recourse available to that person under the Act. It may be stated that once any such misfeasance in the submission of the account of the election expenses is brought to the notice of the Election Commission, thereafter it would be for the Election Commission to set the process in motion for deciding the issue as contemplated in Section 10A of the Act. It cannot be said that no person can by way of a complaint approach the Election Commission.That was a case where the nomination of a candidate rejected by the returning officer could be challenged only by of an Election Petition under Section 329(b) and if that be so, whether any other proceedings could be resorted to including a proceeding under Article 226 of the Constitution challenging the rejection of the nomination. Dealing with that situation, this Court held that the word `election can be and has been appropriately used with reference to the entire process, which consists of several stages and embraces many steps some of which may have important bearing on the result of the process. Therefore, it was held that if the grounds on which an election can be called in question, could be raised at an earlier stage and the errors, if any, are rectified there will be no meaning in enacting a provision like Article 329(b) and in setting up a Special Tribunal. It was further held that any other meaning ascribed to the words used in the Article would lead to anomalies which the Constitution could not have contemplated, one of them being that conflicting views may be expressed by the High Court at thestage and by the Election Tribunal, which is to be an independent body at the stage when the matter is brought up before it. In the light of the situation in which the overall jurisdiction of the Election Tribunal (High Court) relating to a challenge that can be made to an election can be made as provided under Article 329(b), this Court having held that the word `election would include very many process till the completion of the polling and the declaration of the result and, therefore, there cannot be a piecemeal challenge permitted to be made by way of a Writ Petition under Article 226. The said proposition of law, as declared by this Court, can never be controverted. In the case on hand, there was no attempt made by anyone to challenge the election of the Appellant by resorting to a complaint which has emanated in the form of proceeding under Section 10A by the Election Commission. In fact, in a proceeding under Section 10A, there is no scope or power vested with Election Commission to declare the election as invalid. Therefore, there is no question of any violation of Article 329(b) that would arise in the case on hand. We, therefore, do not find any support from the said decision for the Appellant.In the light of such statutory prescription contained in the Act clearly distinguishing the different role to be played by an Election Tribunal (High Court) and the Election Commission as compared to the provisions contained in the Himachal Pradesh Panchayat Raj Act, 1994, the said decision also does not support the stand of the Appellant.77. Reliance was also placed upon Dalchand Jain (supra) to contend that suppression of certain expenses incurred in the election while submitting the return as stipulated under Section 77 would amount to a corrupt practice as specified in Section 123(6) and consequently, in that case on finding that such nondisclosure of expenditure amounted to corrupt practice, the election was set aside by an Election Tribunal (High Court). When the said order of the Election Tribunal (High Court) was challenged before this Court, after examining the factual matrix in detail, this Court upheld the order of the Election Tribunal (High Court) holding that the same did not call for any interference. It will have to be stated that the said decision can have no application to the case on hand, inasmuch as, the question whether the jurisdiction of the Election Commission under Section 10A would stand excluded by virtue of the dismissal of an Election Petition by the Election Tribunal (High Court) at the instance of one of the Complainants in the case of the Appellant in the appeal (@ SLP(C) No. 29882 of 2011) was not the point in issue. There was also no issue raised as to whether as a general proposition of law, jurisdiction under Section 10A of the Act for passing an order of disqualification for failure to lodge the account in the manner and as required by or under the Act can only be raised as a ground of attack for setting aside an election before the Election Tribunal (High Court). Therefore, we do not find any scope to apply the said decision to the facts of this case.78. Reliance was then placed upon a Constitution Bench decision of this Court reported in Brundaban Nayak (supra). In the said judgment, which was prior to the introduction of Section 10A and the corresponding Rules, relating to the said section. In Paragraph 19, after noting the observations made by the Chief Election Officer, while rendering its opinion at the request of the Governor as provided under Article 192 of the Constitution, when relevant facts are in dispute it can be ascertained only after a proper enquiry, this Court observed as under in paragraph 19would like to invite the attention of parliament to these observations, because we think that the difficulty experienced by Election Commission in rendering its opinion under Article 103 (2) or Article 192 (2) appears to be genuine and so parliament may well consider whether the suggestion made by the Chief Election Commissioner should not be accepted and appropriate legislation adopted in that behalf".The reliance placed upon the decision of this Court in Jagan Nath (supra) is totally misconceived, inasmuch as, the said judgment came to be rendered when there was a specific provision in(1) and (2) of Sections 100 and 101 by which an election of a successful candidate can be called in question by way of an Election Petition before the Election Commission itself. Inasmuch as the said power vested with the Election Commission is no longer available under the said provisions, which has now been entrusted with the Election Tribunal (High Court) alone, the reliance placed upon the said decision is of no use to the Appellant.No one can quarrel with the proposition as laid down in the above paragraphs. The question is whether under Section 10A and the other alleged provisions under the Act, as well as, the Rules, such a power has been invested with the Election Commission. We have elaborately referred to the various provisions in the Act, as well as the Rules in particular Section 10A, Section 77(1) and (3), Section 78 read along with Rules 86 to 90 and have held that such a power to hold an enquiry before passing an order of disqualification under Section 10A has been invested with the Election Commission. Therefore, even applying the above said principles, we do not find any scope to take a different view.84. We do not find any support from the decision relied upon by the learned Senior Counsel on Andhra Provincial Potteries Ltd. & Ors. (supra). Reliance was placed upon the principle stated in paragraph 7, wherein it was held that in interpreting a penal provision, it is not permissible to give an extended meaning to the plain words of the Section. Inasmuch as the said principle has been stated while interpreting a penal provision, it will have to be stated that the said principle cannot be applied while interpreting Section 10A. In any event we have found that in Rule 89(5), it has been specifically provided that the Election Commission should issue a show cause notice for the purpose of passing any order of disqualification under Section 10A calling upon the candidate concerned to submit its representation in writing. Under(6) of Rule 89 it has been further clarified that a contesting candidate who has been called upon to show cause under(5) may within 20 days of the receipt of such notice, submit a representation in writing to the Election Commission simultaneously forwarding a copy to the DEO together with a complete account of his election expenses if he had not already furnished such an account.Reliance was placed upon the recent decision of this Court reported in Secretary, A.P.D. Jain Pathshala & Ors. (supra) for the proposition that ad hoc authorities cannot be permitted to exercise judicial functions and that the executive power of the State cannot be extended to creating Judicial Tribunals or Authorities exercising juridical powers and rendering judicial decisions. The said decision came to be rendered while examining the scope of binding nature of a decision rendered by a three member Grievance Redressal Committee constituted under a scheme called Shikshan Sevak Scheme in all recognized private secondary/higher secondary school/junior colleges/B.Ed. colleges in the State of Maharashtra. Such a scheme was not under any statute or was not governed by any statutory provision. In examining the scope of authority of such a committee called Grievance Redrassal Committee formed under a scheme in the purported exercise of executive authority, this Court held that constitution of a Grievance Committee, as a public adjudicatory forum whose decisions are supposedly binding on the parties to the dispute pursuant to executive order of the Government, was impermissible. We do not find any scope to apply the said decision, inasmuch as, there is a world of difference as between the Constitution of a Grievance Redressal Committee under a Scheme with no statutory support and the existence of a Constitutional Authority, viz the Election Commission, created under the Constitution of India, which has been invested with the powers of superintendence, control and issuance of directions for the purpose of holding public elections in this country, apart from the entrustment of specific powers under the Act, inter alia, under Section 10A and 11 and such powers are to be exercised in accordance with the Rules, viz the Conduct of the Election Rules. The said decision also, therefore, does not help the Appellant.88. We find that the reliance placed upon the decision reported in Election Commission of India Through Secretary (supra) is not applicable to the case on hand, inasmuch as, in the said decision, the question posed for consideration was as to what extent Article 329(b) had overriding effect on Article 226 of the Constitution. This Court as a proposition of law stated that if the petition presented to the Court calls in question an election, the bar of Article 329(b) is attracted, else it is not. We do no find any reference to any of the issues which arise for consideration in the case on hand in the said judgment. Therefore, the said decision also does not support the case of the Appellant.89. Reliance was placed upon the decision reported in Bharat Aluminium Company (supra) paragraphs 165, 166 and 168 for the proposition that the legislation cannot be construed contrary to Parliaments intention, just to avoid any hardship. In support of his contention, he submitted that the complainants before the Election Commission have no locus standi to raise the issue under Section 10A. We have found that the power in Election Commission under Section 10A is inherent. We have also held by making reference to Sections 77 (1), (2) & (3) and 78, read along with Rules 86 to 90 that there is every right in any member of the electorate who is entitled to seek for inspection of the account submitted by a candidate and also get the authenticated copy of such statement. He is also entitled to bring to the notice of the Election Commission any serious flaw in the account of election expenses submitted by a contesting candidate.90. Our conclusion is, therefore, based on an interpretation of the statutory provisions in the Act, as well as the Rules. Therefore, the reliance placed upon the decisions reported in Bharat Aluminium Company (supra) and M. Karunanidhi (supra) does not support the case of the Appellant.91. The decision reported in Siddharam Satlingappa Mhetre (supra) was relied upon for the proposition that a decision delivered by a larger Bench is binding on any subsequent Bench of lesser orstrength. The submission was that the decision rendered in Sucheta Kripalani (supra) is a Constitution Bench decision, while the one rendered in L.R. Shivaramagowda (supra) is by three Judge Bench and that since the Constitution Bench decision covered the issue, the same should have been followed and, therefore, the law laid down in L.R. Shivaramagowda (supra) need not be followed.92. Having considered the said submission of the learned Senior Counsel Mr. Gopal Subramanium in the earlier part of the judgment while examining the then existing Section 7(c) and 8(b) and insertion of Section 10A replacing the earlier Section 7(c) and 8(b), we have held that the ratio laid down in Sucheta Kripalani based on Section 7(c) and 8(b), cannot be applied and that decision in L.R. Shivaramagowda (supra), which came to be rendered after the insertion of Section 10A alone would apply. We have examined in detail as to how the insertion of Section 10A in the place of Section 7(c) and 8(b) has widened the powers and scope of the Election Commission for passing an order of disqualification which was squarely considered by this court in L.R. Shivaramagowda (supra). In the light of the said position, the reliance placed upon Siddharam Satlingappa Mhetre (supra) is also of no assistance to the Appellant.We do not find any scope to apply the said decision to the case on hand. What was highlighted in the said decision was that though the phrase mentioned `in the prescribed manner in Section 8 (4), yet significantly there was no prescription of any time limit. The authority on its own prescribed the time limit, and therefore, it was held that when such a prescription was not found in the Act, it was not within the authority of the concerned assessing authority to prescribe any time limit. In fact, there was no challenge to the authority exercised by the concerned officer. What was held was that while exercising the authority, there was exercise of jurisdiction by prescribing a time limit which was not provided for in the statute. We are dealing with a case where the power prescribed under Section 10A of the Act provides that the Election Commission on finding that the lodgment of the account of election expenses was not in the manner prescribed and as required under the Act can pass an order of disqualification. The question is when Section 77(1) and (3) of the Act read with section 78, which prescribe a time limit within which the lodgment of account should be made by a contesting candidate considering the rules prescribed in Section 89, whether the Election Commission is invested with the powers to examine the statement of account lodged by a contesting candidate and find out whether such lodgment of the account was within the time prescribed and that it reflected a true, correct and bona fide accounts. Therefore, when such prescriptions are contained in the Act and the Election Commission has to only find out whether such prescriptions in the other provisions of the Act have been duly complied with or not, we fail to see any ground to apply the ratio of the above decision to the case on hand. Therefore, the said decision also does not support the stand of the Union of India.Applying the above well known principle to the facts of this case, we are not persuaded to accept the submission of Mr. Gopal Subramanium, learned Senior Counsel. If the submissions were to be accepted and it will have to be held that Election Commission will have no jurisdiction to make an enquiry for the purpose of ascertaining the fulfillment of the requirement as contained in Section 10A then the very provision, namely, Section 10A will have to be rendered otiose. We are, therefore, not able to accede to the said submission. On the other hand, if Section 10A has to operate, the conclusion of ours that the Election Commission has the required jurisdiction to make the enquiry into the complaint alleged as against the Appellant is well justified.101. To the same effect is the decision reported in Afjal Imam v. State of Bihar & Ors., 2011(5) SCC 729 which was also relied upon by Ms. Pinki Anand, learned Senior Counsel.In the light of the above categoric statement made while holding that the rule of law and free and fair elections are the basic features and facts of our democracy, Article 324 should be interpreted in a wide perspective giving power to the Election Commission which has to be recognized in a broad sense and not in a narrow one. We fully approve of the submissions of Mr. Ashok Desai, learned Senior Counsel on the above lines and we have already held that in order to ensure free and fair elections, the power vested with the Election Commission under Section 10A read along with the other provisions of the Act and the Rules, it should be held that Election Commission does possess the requisite powers under Section 10A to hold the necessary enquiry to ascertain the fact about the compliance of the statutory requirements in the matter of submission of accounts of the election expenses, i.e. the true, correct and bona fide expenses and that such expenses were within the prescribed limit of the Act.A political party which is not maintaining, audited and authenticated, accounts and has not filed the return of income for the relevant period, cannot, ordinarily, be permitted to say that it has incurred or authorized expenditure in connection with the election of its candidates in terms of Explanation I to Section 77 of the RP Act.6. That the expenditure, (including that for which the candidate is seeking protection under Explanation 1 to Section 77 of the RP Act) in connection with the election of a candidateto the knowledge of the candidate or his election agentshall be presumed to have been authorised by the candidate or his election agent. It shall, however, be open to the candidate to rebut the presumption in accordance with law and to show that part of the expenditure or whole of it was in fact incurred by the political party to which he belongs or by any other association or body of persons or by an individual (other than the candidate or his election agent). Only when the candidate discharges the burden and rebuts the presumption he would be entitled to the benefit of Explanation 1 to Section 77 of the RP Act.......At the end we can profitably refer to the basics of our democracy, which have been succinctly stated by His Lordship Justice V.R. Krishna Iyer in the Constitution Bench decision reported in Mohinder Singh Gill & Anr. v. Chief Election Commission, New Delhi & Ors., 1978(1) SCC 405. To borrow His Lordships expression stated in paragraph 2, the same are as underEvery significant case has an unwritten legend and indelible lesson. This appeal is no exception, whatever its formal result. The message, as we will see at the end of the decision, relates to the pervasive philosophy of democratic elections which Sir Winston Churchill vivified in matchless words :`At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.If we may add, the little, large Indian shall not be hijacked from the course of free and fair elections by mob muscle methods, or subtle perversion of discretion by men `dressed in little, brief authority. For `be you ever so high, the law is above you.In our considered view, if the above basics of democracy and purity in elections have to be maintained, it is appropriate to hold that the decision of the Election Commission as upheld by the High Court to the effect that Section 10A clothes the Election Commission with the requisite power and authority to enquire into the allegations relating to failure to submit the accounts of election expenses in the manner prescribed and as required by or under the Act, is perfectly justified and we do not find any scope to interfere with the same. Inasmuch as the period of membership is likely to come to an end, it will be in order for the Election Commission to conclude the proceedings within one month and pass appropriate orders in accordance with law. In order to ensure that within the said period the Election Commission is not prevented from passing the orders due to noncooperation of any of the parties, it will open for the Election Commission to hold the proceedings on a day to day basis and conclude the same within the said period.Apart from noting the above factual aspects relating to the expenses claimed to have been incurred by the party, which claim of the Appellant was rejected by the Election Commission and also confirmed by the Division Bench of the High Court, the High Court considered the various decisions relied upon by on behalf of the Appellant and held as underElection Commission of India considered the entire facts and circumstances of the present case, the reply submitted by the petitioner on 22nd July, 2011 as well as the supplementary reply dated 4th April, 2011 and has rightly exercised its jurisdiction under Section 10A of the Representation of People Act, 1951 declaring the petitioner disqualified for three years. All the conditions for exercise of power under Section 10A of the Representation of People Act, 1951 were fully satisfied and we do not find any infirmity in the order of the Election Commission of India dated 20th October, 2011 which may warrant any interference by this Court in exercise of discretionary jurisdiction.Having perused the above order of the Division Bench, wherein the details with regard to the various allegations relating to the violation in the lodging of the election expenses, in such details, in the absence of glaring illegality or irregularity pointed out before us, we have no reason to interfere with those finding of facts arrived at by the Election Commission, which was also confirmed by the Division Bench after a thorough examination. Therefore, on merits as well, we do not find any good ground to interfere with the impugned order of the Election Commission disqualifying the Appellant for a period of three years. The appeals, therefore, stand dismissed.