Non-disclosure of each and every asset owned by a candidate, in their nomination papers, would not amount to a defect, much less, a defect of a substantial character.

In the matter of Karikho Kri vs. Nuney Tayang & Ors., CA No. 4615/2023 decided by the Hon’ble Supreme Court on 09.04.2024.

Facts of the case–

The election of the returned candidate (Petitioner herein) from AC 44, Tezu, Arunachal Pradesh for the Assembly Elections of 2019 was challenged by another candidate (Respondent herein) on the grounds mentioned in Sec 100(1)(b) {corrupt practice}, 100(1)(d)(i) {improper acceptance} and 100(1)(d)(iv) {non-compliance of provisions of Indian Constitution} of the RP Act. It was the case of the Respondent that the Petitioner did not disclose material particulars in his Form 26 Affidavit regarding moveable and immovable assets of the Petitioner and his dependents, non-submission of no dues certificate for electricity charges, tax liability, etc.

The High Court noted that the returned candidate has not disclosed material information in his affidavit and declared his election as void and further declared the failure of the Petitioner to disclose information regarding the vehicles as a corrupt practice. Against the said order, the Petitioner filed appeal u/s 116 of RP Act.

Observation and Analysis of the Apex Court-

Before the returning officer (RO), the Respondent raised the objection of non-submission of a ‘No Dues Certificate’ in respect of the government accommodation occupied by the Petitioner during his tenure as an MLA from 2009 to 2014 and also about non-disclosure of the vehicles held by his dependents. The Petitioner by way of his reply informed the RO that the vehicles in question have already been disposed by way of sale/gift and further asserted that there were no outstanding dues against any government accommodation in his name. The petitioner submitted documents pertaining to transfer of the vehicles as well as the ‘No dues certificate’.

The Apex Court noting the afore-mentioned facts noted that the HC did not doubt that the said vehicles were transferred by sale/gift long before filing of affidavit, however, as they remained registered in the names of Petitioner’s dependents, the HC held them to be the owners of the said vehicles and non-disclosure of said information is sufficient to constitute undue influence.

Taking a contrary stand from the HC, the Apex Court held that “mere failure to get registered the name of the new owner of an already registered vehicle does not mean that the sale/gift transaction would stand invalidated and such a vehicle, despite being physically handed over to the new owner, cannot, by any stretch of imagination, be treated as still being in the possession and control of the former owner.” In light of the said analysis, the Court held that non-disclosure of vehicles in question could not be held against the Petitioner and such non-disclosure could not be said to amount ‘undue influence’.

Regarding the 2^nd issue, the Petitioner did not disclose the factum of his occupying govt. accommodation from 2009 to 2014 and further declared the dues being ‘NIL’. The Apex Court noted that as there were no actual outstanding dues, non-disclosure of such accommodation and non-filing of ‘no dues certificate’ cannot be said to be a defect of real import.

The Court further held that “every defect in the nomination cannot straightaway be termed to be of such character as to render its acceptance improper and each case would have to turn on its own individual facts, insofar as that aspect is concerned…There is no absolute mandate that every non-disclosure, irrespective of its gravity and impact, would automatically amount to a defect of substantial nature, thereby materially affecting the result of the election or amounting to ‘undue influence’ so as to qualify as a corrupt practice.”

The Court also held that “non-disclosure of each and every asset owned by a candidate would not amount to a defect, much less, a defect of a substantial character. It is not necessary that a candidate declare every item of movable property that he or his dependent family members owns, such as, clothing, shoes, crockery, stationery, and furniture, etc., unless the same is of such value as to constitute a sizeable asset in itself or reflect upon his candidature, in terms of his lifestyle, and require to be disclosed. Every case would have to turn on its own peculiarities and there can be no hard and fast or straitjacketed rule as to when the non-disclosure of a particular movable asset by a candidate would amount to a defect of a substantial character.”

The Court allowed the appeal of the retuned candidate and set aside the judgment of the High Court.

SP-09-2024