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Supreme Court infers Independent Candidate’s Right to Privacy; States Non-Disclosure of vehicles and dues do not amount to Corrupt Practice

CASE TITLE – Karikho Kri v. Nuney Tayang and Anr.

CASE NUMBER – Civil Appeal No(s). 4615 of 2023 & 4616 of 2023

DATED ON – 09.04.2024

QUORUM – Justice Aniruddha Bose & Justice Sanjay Kumar

 

FACTS OF THE CASE

In the year 2019, Karikho Kri, an independent candidate, Dr. Mohesh Chai, candidate of the Bharatiya Janata Party, and Nuney Tayang, candidate of the Indian National Congress, contested the election to the Arunachal Pradesh Legislative Assembly from 44 Tezu (ST) Assembly Constituency. The election was held on 11.04.2019 and Karikho Kri emerged victorious with 7538 votes, while Dr. Mohesh Chai secured 7383 votes and Nuney Tayang secured 1088 votes. Nuney Tayang filed Election Petition No. 01(AP) of 2019 before the Itanagar Bench of the High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh, seeking a declaration that the election of Karikho Kri was void on the grounds mentioned in Sections 100(1)(b), 100(1)(d)(i) and 100(1)(d)(iv) of the Representation of the People Act, 1951 (for brevity, ‘the Act of 1951’). He also sought a consequential declaration that he stood duly elected from the said constituency. By judgment and order dated 17.07.2023, a learned Judge of the Itanagar Bench of the High Court allowed the election petition in part, declaring the election of Karikho Kri void under Sections 100(1)(b), 100(1) (d)(i) and 100(1)(d)(iv) of the Act of 1951, but rejecting the prayer of Nuney Tayang to declare him duly elected, as he had not led any evidence to prove the allegations levelled by him against Dr. Mohesh Chai, the candidate with the second highest number of votes. Aggrieved thereby, Karikho Kri filed Civil Appeal No. 4615 of 2023 before the Supreme Court and Nuney Tayang filed Civil Appeal No. 4716 of 2023. These appeals were filed under Section 116A of the Act of 1951.

 

ISSUE

  1. Whether there has been a non-disclosure of ownership of Hero Honda CD Dawn Motorcycle owned by the returned candidate, Shri Karikho Kri bearing registration No. AR-11-2446; Kinetic Zing Scooty owned by the wife of the returned candidate, Smti. Bagilu Kri bearing registration No. AR-11-4474; Van, Maruti Omni Ambulance owned by the wife of the returned candidate, Smti. Bagilu Kri bearing registration No. AR-11A-3100 and TVS Star City Motorcycle owned by Shri Goshinso Kri, the son of the returned candidate Shri Karikho Kri bearing registration No. AR11-6581, as is required to be disclosed under Clause 7(vi) of the Conduct of Election Rules, 1961, rendering the nomination of the returned candidate invalid?
  2. Whether there has been a non-submission of no dues certificate with regard to Electricity Charges required to be submitted under Clause 8(ii)(b) of Form No. 26 of the Conduct of Election Rules, 1961, as the respondent No. 1 was in occupation of MLA Cottage No. 1 at ‘E’ Sector, Itanagar, from the year, 2009- 2014, while the respondent No. 1 was an MLA of Tezu (ST) Assembly Constituency during the year, 2009-2014?
  3. Whether the election of respondent No. 1 to the 44- Tezu(ST) Assembly Constituency is liable to be declared void under Section 100(1)(d)(i) of the Representation of the People Act, 1951?

 

COURT ANALYSIS AND JUDGEMENT

The Hon’ble Supreme Court observed that though it appears that the three vehicles in question still remained registered in the names of the wife and son of Karikho Kri, the question that arises is as to whether non-disclosure of such vehicles justified the attributing of a corrupt practice to Karikho Kri and the negating of his election on that ground. They stated insofar as the Scooty bearing No. AR-11/4474 is concerned, it stood in the name of Bagilu Kri but Md. Nizammudin (DW5) deposed that he had taken this vehicle as scrap and sold it as such to Promod Prasad (DW6). In turn, Promod Prasad (DW6) confirmed that he bought the Scooty as scrap from Md. Nizammudin (DW5). During their cross-examination, nothing was elicited from these witnesses to doubt their claims. However, letter dated 20.09.2019 addressed by the District Transport Officer, Lohit District, Tezu, to Bagilu Kri, manifests that the registration of the Scooty in her name stood cancelled only at that time. Though much was argued about this payment of taxes and the fact that the receipt was issued in the name of Bagilu Kri, The Supreme Court was not inclined to give any weightage to it, and the other two vehicles in question, had actual documents of conveyance and also proof of the requisite forms prescribed under the Act of 1988 being duly filled in and issued by Bagilu Kri and Goshinso Kri. Form No. 29, relating to notice of ownership transfer of a vehicle by the registered owner, viz., the transferor, was issued in respect of each of these vehicles but despite the same, the transferees did not do the needful to get their own names registered as the owners. But the Supreme 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. Once it is accepted that the three vehicles in question were either gifted or sold before the filing of the nomination by Karikho Kri, the said vehicles cannot be considered to be still owned by Karikho Kri’s wife and son for purposes other than those covered by the Act of 1988. Therefore, non-disclosure of the three vehicles in question could not be held against Karikho Kri in the light of the aforestated analysis. In his Affidavit in Form No. 26, Karikho Kri was required to state as to whether he had been in occupation of accommodation provided by the Government at any time during the last 10 years before the date of notification of the current election and, if so, he was to furnish a declaration to the effect that there were no dues payable in respect of the said accommodation in relation to rent, electricity charges, water charges and telephone charges. Karikho Kri, however, failed to disclose the fact that he had been in occupation of government accommodation during his tenure as an MLA between 2009 and 2014. After Nuney Tayang raised an objection to his candidature on this ground, Karikho Kri filed the requisite ‘No Due Certificates’ of 2014. Having considered the issue, we are of the firm view 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. The Supreme Court viewed that it was not in dispute that there were no actual outstanding dues payable by Karikho Kri in relation to the government accommodation occupied by him earlier, and his failure in disclosing the fact that he had occupied such accommodation and in filing the ‘No Dues Certificate’ in that regard, with his nomination form, cannot be said to be a defect of any real import. More so, as he did submit the relevant documents of 2014 after Nuney Tayang raised an objection before the Returning Officer, and his explanation that he submitted such Certificates in the year 2014 when he stood for re-election as an MLA was in the eyes of the Court, logical and worthy of acceptance. The Supreme Court also inferred to his ‘right to privacy’ which would still survive as regards matters which are of no concern to the voter or are irrelevant to his candidature for public office. In that respect, 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. On the above analysis, the Hon’ble Supreme Court held that the High Court was in error in concluding that sufficient grounds were made out under Sections 100(1)(b), 100(1)(d)(i) and 100(1)(d)(iv) of the Act of 1951 to invalidate the election of Karikho Kri and, further, in holding that non-disclosure of the three vehicles, that still remained registered in the names of his wife and son as on the date of filing of his nomination, amounted to a ‘corrupt practice’ under Section 123(2) of the Act of 1951. In the result, Civil Appeal No. 4615 of 2023 filed by Karikho Kri was allowed, setting aside the Judgment and Order dated 17.07.2023 passed by the Itanagar Bench of the High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh, and Civil Appeal No. 4716 of 2023, filed by Nuney Tayang, was dismissed.

 

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Judgement Reviewed by – Gnaneswarran Beemarao

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