1. This election petition is concerned with the election held in respect of Legislative Assembly Area No. 83 of Kondagaon constituency wherein the voting took place on 11.11.2013 and the result of the election was declared on 08.12.2013 and the respondent Mohanlal Markam was declared as returned candidate. The following is the position of votes secured by the candidates :
| Name of candidate | Party | no. of votes secured |
|---|---|---|
| Mohanlal Markam (R-1) | Indian National Congress | 54290 |
| Lata Usendi | Bhartiya Janta Party | 49155 |
| Amalsai Sori | Communist Party of India | 5229 |
| Shankar Sodhi | Independent | 3711 |
| Rajkumar Markam | Bahujan Samaj Party | 3347 |
| Mohan Markam | Independent | 3060 |
2. The instant petition is filed by a voter Prakash Rao though he has not contested the election. The petitioner mainly claimed relief to declare the election of respondent Mohanlal Markam from Constituency Segment No.83 Kondagaon, for the Chhattisgarh Legislative Assembly Election 2013 as illegal and void as per section 98(b) of the Representation of the People’s Act, 1951. It is further prayed to hold that the returned candidate has committed corrupt practice at the election by exerting undue influence on the electors as prescribed u/s 123(2) of the Representation of the People Act, 1951 by way of filing false affidavit with his nomination form as per Section 99 of the Representation of the People’s Act, 1951.
3. (i) Learned counsel for the petitioner Shri Prafull Bharat would submit that as per Section 100(d)(1) of the Representation of the People Act, 1951, the nomination paper of respondent No. 1 was improperly accepted thereby it would give right to the petitioner to challenge the election u/s 123(a)(ii) as respondent No. 1 has not disclosed the true facts in his affidavit that he has married twice despite the first wife was alive. Therefore, such non-disclosure has caused interference with free exercise of electoral right of the petitioner as a voter if those facts were made known to people, many of people may not have voted to elect the respondent as winning candidate. It is further contended that respondent no.1 was holding the office of profit when the nomination was filed by him, thereby respondent No.1 has given the false affidavit.
(ii) Learned counsel would further submit that respondent no.1 has concealed the material information regarding his second marriage in all 5 affidavits and concealed the facts. Referring to Ex.D-3 it is stated that the document shows the date to be 24.10.2013 and in the column, with respect to his description for livelihood, it is written as Senior Agency Manager, S.B.I., Life (retired) whereas in the same document at clause 9(a) about the source of income, it is stated that the salary is from SBI Life Insurance Company Ltd. Further referring to the column of document, it is stated that the wife is shown as Lalita and Maina Markam is shown as dependent though Maina Markam is the wife, thereby respondent No. 1 has not disclosed that he has two wives. Referring to the statement of P.W.4 Vijay Kumar Dhurve it is stated that one nomination form was deposited on 22.10.2013 and the rest of 3 nominationforms were deposited on 23.10.2013 whereas Ex.D-3 is shown to be submitted on 24.10.2013, therefore, it was contended that the same document is fabricated.
(iii) It is further stated that according to such statement of Election Officer at para 14 the only date of nomination is shown as 23.10.2013. Referring to the document Ex. D-3, it is submitted that though such nominations were shown to be submitted on 24.10.2013 but actually no submission was made. Therefore, learned counsel for the petitioner submits that the returned candidate has given the wrong information which frustrates the principles laid down in (2002) 5 SCC 294 – Union of India Vs. Association for Democratic Reforms and (2003) 4 SCC 399 People’s Union for Civil Liberties (PUCL) Vs. Union of India and stated that the candidate is required to furnish correct details pertaining to his information.
(iv) He further submitted that it is a settled law that the respondent was required to follow the guidelines or directions issued pertaining to collection, which he has failed to do so. With respect to facts of second marriage, it is submitted that the petitioner has made averments at Para 15 of the petition and referring to the statement of D.W.1 the returned candidate it is submitted that the returned candidate admitted the fact that he had performed two marriages one with Lalita Markam and the second with Maina Markam. It is further submitted that had this fact been disclosed to the public, the voters mind would have swayed as in Indian Society second marriage is not being seen with all grace and honour, consequently, the petitioner as voter was induced on wrong facts.
(v) By making reference to Section 123(2) sub-section (a)(ii) of the Act 1950 it is further contended that the petitioner was induced by respondent No. 1 as correct facts were not disclosed by him and the picture was portrayed by the returned candidate as that of a good man. Had it been given in true perspective, the people may not have voted for him, therefore, the election of the returned candidate would fall under the corrupt practice so as to brand the election invalid.
(vi) Learned counsel further submitted that at the time of election the respondent was holding the office of profit. He also submit that though it is stated that prior to filing of nomination, the respondent has resigned but Ex. D-4 resignation letter would show that the resignation was accepted on 07.11.2013 and on the date of filing of nomination i.e., from 22nd October to 24th October, 2013, he was holding the office of profit. Therefore, the non-disclosure of facts has been made of holding of office of profit by the respondent. It was, therefore, contended that the election of the respondent be declared as illegal and void and accordingly the same may be set-aside.
4. Per contra, Shri B.P. Gupta, learned counsel appearing for respondent no. 1 refuted the entire averments. He would submit that the respondent/returned candidate cannot be said to have hold the office of profit on the date of filing of nomination and the facts would show that it will not be covered under Article 191 of the Constitution of India as neither the returned candidate was appointed by the Government nor his service conditions were controlled by the Central or State Government. It is stated that the applicant was an agent of State Bank of India Life Insurance Company Ltd., which is an organisation established by a Public Sector Bank, therefore, the office held by him cannot be said to be the office of profit. In the alternative it is submitted that even if it is held that the respondent returned candidate was holding the office of profit, in such case the respondent has resigned and relieved from the job of the Agent on 05.10.2013. So when the nomination was filed, the returned candidate already stood relieved. It is further submitted that such objection was never raised before the scrutiny of nominations and without proper pleading and averments, bald allegations have been levelled which cannot be sustained. Counsel referred to document Annexure D-4 and would submit that from perusal of Ex. D-4 it would be clear that the respondent returned candidate has resigned before filing of the nomination papers.
5. It is further contended that in respect of corrupt practice, the petitioner had made general allegations in the affidavit and on what basis the pleading of corrupt practice is made, it is completely silent. It is further submitted that though the reference has been made to various paragraphs of the petition and the affidavit is filed in support of the corrupt practice but reading of those paragraphs in petition do not disclose any corrupt practice. He placed reliance on AIR 2015 SC 180 and AIR 1999 SC 2284 and would submit that the petitioner has grossly failed in his duty to plead and prove the corrupt practice and undue influence adopted by the returned candidate and only in order to blackmail the respondent, the instant petition has been filed. It is further submitted that even for the sake of argument it is admitted that the petitioner had two wives it would not fall under disqualification which is contained as a ground for section 100 of the R.P. Act, 1951. Further it is also contended that neither it is pleaded nor is proved by the petitioner as to how the nomination has been wrongly accepted and only the averments have been made during the argument, therefore, such submission do not have any force to entertain this petition.
6. With respect to allegation of suppression of material facts, it is contended that in the return at paras 10 & 11, the respondent has categorically stated of both of his marriages and the source of livelihood i.e., the income earned as an Agent of S.B.I. Life Insurance Co. It is contended that everything was shown in the nomination paper and both the names of his two wives i.e., Lalita Markam and Maina Marka have been shown and since the column do not provide for any description of second marriage, the second wife was shown as dependent. The counsel therefore, submits that no suppression has been made by the respondent returned candidate and the petition is completely frivolous and misconceived, therefore, is liable to be rejected.
7. On the basis of pleadings of parties, this Court had framed the following issues on 11.09.2014 :
