Tej Bahadur v. Shri Narendra Modi , Civil Appeal No.2100 of 2020, November 24, 2020.
Counsel for Appellant:Mr. Pradeep Kumar Yadav
Counsel for Respondent: Mr. Harish N. Salve
A three judge bench of the Hon’ble Supreme Court comprising of CJI. S.A. Bobde, Justice A. S. Bopanna and Justice V. Ramasubramanian decided the current appeal. The Court dismissed the appeal by stating that Section 33(3) which requires a nomination of a dismissed officer to be accompanied by a certificate that he was not dismissed on the ground of corruption or disloyalty to the State is mandatory.
An Election Petition was filed against the respondent wherein the appellant prayed for declaring the election of the respondent to be void on the ground that the appellant’s nomination was improperly rejected and that the nomination of the respondent was wrongly accepted for want of disclosure of certain facts. Further, the appellant claimed that election was vitiated on account of misuse of official power by the Returning Officer and the Election Observer. The respondent filed an application in the Allahabad High Court for dismissal of this petition by contending that the petition did not disclose any cause of action and that the appellant had no locus standi to file the petition in the absence of a certificate. The Court dismissed the Election Petition stating 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 nor was he a candidate for such constituency. The instant appeal accordingly emerges from an order passed by the Election Tribunal while disposing the application filed under Order VII Rule 11 CPC seeking rejection of the Election Petition.
The appellant, an employee of Border Security Force, was dismissed from service on 19.4.2017. He filed two nominations, one on 24.4.2019 and the other on 29.4.2019, both of which were rejected and found to be invalid by the Returning Officer because they were not supported by a certificate to the effect that the appellant had not been dismissed for corruption or disloyalty to the State as required by Section 9(2) read with Section 33(3) of the Representation of the People Act, 1951 (hereinafter ‘the Act’).
The learned counsel for the appellant contended that as per Section 36(5) of the Act, the appellant should have been allowed next day but one for rectifying the objection raised by the Returning Officer, yet since the same was not permitted, the rejection of his nomination is contrary to law. However, despite repeated query, the counsel did not produce any evidence on record to show that the appellant had demanded time to produce the certificate.
The learned senior counsel appearing for the respondent contended that such time would be provided at the discretion of the Returning Officer and the appellant cannot claim any manner of right since the proviso clearly states “may be allowed time”. Further, he stated that the contention of the appellant should be rejected as there could be no occasion for a person to be allowed time where he has not demanded any such time.
The Court noted the contentions of both parties and observed:
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. (Para 15)
Noting that the appellant was not an “elector” under Section 81 of the Act since he is enrolled as an elector of Bhiwani, Mahendragarh Parliamentary Constituency, Haryana, the Court stated that his locus depends entirely on the question of whether he is a candidate or can claim to be a duly nominated candidate. The Court relied on a judgment of this Court in Charan Lal Sahu vs. Giani Zail Singh & Anr., (1984) 1 SCC 390 and answered in negative:
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. (Para 20)
The Court concluded that it saw no merit in the appeal and did not consider it necessary to issue notice to the respondent. Further, it stated that the appeal did not raise any arguable question of fact or law and that admitting the appeal would amount to an exercise in futility.
The Court held that the appellant had no cause of action which invested him with the 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 action. (Para 25)
The Court dismissed the Civil Appeal.
Jhanavi M
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