TEJ BAHADUR versus SHRI NARENDRA MODI

Citation: [2020] 13 S.C.R. 554 · Decided: 24-11-2020 · Supreme Court of India · Bench: S.A. BOBDE · Disposal: Dismissed

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Judgment (excerpt)

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SUPREME COURT REPORTS
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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
su

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