TEJ BAHADUR versus SHRI NARENDRA MODI
[2020] 13 S.C.R. 554, Supreme Court of India, 2020
Outcome: Dismissed (Dismissed)
Segment: Ratio
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   [2020] 13 S.C.R. 554
TEJ BAHADUR
v.
SHRI NARENDRA MODI
(Civil Appeal No. 2100 Of 2020)
NOVEMBER 24, 2020
[S. A. BOBDE, CJI, A. S. BOPANNA AND
V. RAMASUBRAMANIAN, JJ.]
Representation of the People Act, 1951– ss.9(2), 33, 79, 81,
83, 86 – Election Petition filed by appellant questioned the election
of respondent to 17th Lok Sabha from Varanasi Parliamentary
Constituency – Dismissed by High Court – On appeal, held: s.81
provides that an Election Petition may be presented by any elector
or any candidate at such election– Appellant is admittedly not an
elector registered in the Varanasi constituency – He was an employee
of BSF but was dismissed from service – He filed two nominations –
Admittedly his nomination paper was not accompanied with a
certificate, as required u/s.33(3), that he had not been dismissed
for corruption or disloyalty to the State and was rejected – Thus,
appellant cannot claim to have been a duly nominated candidate at
the Varanasi election – No cause of action disclosed in the petition
– Election Petition barred by s.81 r/w s.86(1) – Code of Civil
Procedure – Or.VI, r.16, Or.VII, r.11.
Dismissing the appeal, the Court
HELD: 1.1 Section 81 of the Representation of the People
Act, 1951 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
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nominated candidate. The term ‘candidate’ is defined in Section
79 (b) 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 covers a person who considers himself entitled
to have been duly nominated as a candidate. The question that
arises is whether the appellant can claim to have been a duly
nominated candidate at the Varanasi Election held in April-May
2019. The answer must be in the negative. 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. 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. 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.
The word
‘deemed’ in this provision does not create a legal fiction.
It 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.[Paras
7, 16, 17, 19 and 20][558-D-E; 561-C-E; F-H; 562-A-C]
1.2 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. 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. For a person to make claim that he was
duly nominated, his nomination paper must comply with statutory
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requirements which govern the filing of nomination papers and
not otherwise.The averments in the petition do not disclose that
the appellant has a cause of action which invest him with right to
sue. 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. Section 83 of the Act allows only an elector or
candidate to maintain an Election Petition. Impliedly, it bars any
other person from filing an Election Petition. The Election
Petition can also be set to be barred by Section 81 read with
Section 86(1) of the Act.  [Paras 22, 25 and 26][563-G-H;
564-G-H; 565-A-B]
Kuldeep Singh Pathania v. Bikram Singh Jaryal 2017
5 SCC 345 : [2017] 1 SCR 915;Charan Lal Sahu v.
Giani Zail Singh & Anr. (1984) 1 SCC 390 : [1984] 2
SCR 6; Charan Lal Sahu v. Neelam Sanjeeva Reddy
(1978) 2 SCC 500 : [1978] 3 SCR 1; Mithilesh Kumar
Sinha v. Returning Officer for Presidential Election &
Ors. (1993) SUPP 4 SCC 386 : [1992] 1 Suppl.
SCR 651; Charan Lal Sahu & Anr. v. K.R. Narayanan
& Anr. (1998) 1 SCC 56 : [1997] 5 Suppl. SCR
317; Charan Lal Sahu v. Dr. A.P.J. Abdul Kalam & Ors.
(2003) 1 SCC 609 : [ 2002] 5 Suppl.  SCR 13; Bolin
Chetia v. Jogadish Bhuyan & Ors. (2005) 6 SCC
81:[2005] 2 SCR 692; T. Arivandandam v. T.V. Satyapal
(1977) 4 SCC 467:[1978] 1 SCR  742 –relied on. 
Case Law
Reference
[2017] 1 SCR 915 
relied on
Para 5
[1984] 2 SCR 6
relied on
Para 21
[1978] 3 SCR 1 
relied on
Para 23
[1992] 1 Suppl. SCR 651  
relied on   
Para 23
[1997] 5 Suppl. SCR 317 
relied on
Para 23
[ 2002] 5 Suppl. SCR 13  
relied on
Para  23
[2005] 2 SCR 692 
relied on
Para 24
[1978] 1 SCR 742  
relied on
Para 25
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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2100
of 2020.
From the Judgment and Order dated 06.12.2019 of the High Court
of Judicature at Allahabad in Election Petition No. 17 of 2019.
Harish N. Salve, Satpal Jain, Sr. Advs., Pradeep Kumar Yadav,
Vishal Thakre, Rudra Pratap Yadav, Sanjeev Malhotra, Rajat Nair, Kanu
Agarwal, Ms. Aastha Mehta, Dheeraj Jain, Advs.  for the appearing
parties.
The Judgment of the Court was delivered by
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 77th Parliamentary Constituency (Varanasi), held
in April – May 2019.
2.In the Election petition the appellant had prayed for declaring
the election of the respondent to be void on the ground that the appellant’s
nomination was improperly rejected and further that the 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.
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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 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
1 S. 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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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 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 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
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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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: -
“…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 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
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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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 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 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
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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 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
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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: -
“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
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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 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.
TEJ BAHADUR v. SHRI NARENDRA MODI
[S.A. BOBDE, CJI]
Divya Pandey
Appeal  dismissed.