HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
HON'BLE Dr. JUSTICE CHILLAKUR SUMALATHA
ELECTION PETITION No.28 of 2019
BETWEEN:-
Sri Ponnam Prabhakar
S/ o Late Sri Ponnam Sathaiah,
Aged 51 years, Occ:Politician, R/ o H.No.7-2-990
Mankammathota, Karimnagar.
...Petitioner
AND
1. Sri Gangula Kamalakar
S/o Sri Gangula Mallaiah,
Aged 50 years,Occ:- M L A,
R/o H.No.3-1-227 Christian Colony,
[
Karimnagar.
2. Election Commissioner of India
rep by CEO Telangana State Telangana State Election
Commission, 1st Floor, DTCP Opp. PTI Building,
AC Guards, Hyderabad 500004.
[The name of Respondent No.2 is deleted as per orders in I.A.No.4
of 2019, dated 25.10.2019]
3. District Election Officer cum District Collector
Karimnagar District, Mukarampura Karimnagar,
Telangana 505001
4. The Returning Officer
for 26 Karimnagar Constituency- cum- R D O Karimnagar,
Karimnagar RDO Office, Main Road Karimnagar 50500.
[ The names of Respondent Nos.3 & 4 are deleted as per
orders in I.A.No.5 of 2019, dated 25.10.2019]
...Respondents
2
Dr.CSL, J
E.P.No.28 of 2019
ORDER:
This Election Petition is filed seeking the Court to declare the election of Respondent No.1 as Member of Legislative Assembly for 26-Karimnagar Assembly Constituency that was held on 07.12.2018 and declared on 11.12.2018 as null and void and consequently, to set-aside the Telangana Gazette Notification No.20, insofar as 26-Karimnagar Assembly Constituency is concerned and to disqualify respondent No.1 from contesting the elections for a period of six years as envisaged under Sections 8A and 10A of the Representation of People's Act, 1951.
2. The facts of the case as detailed in the Election Petition, if narrated in a narrower compass, are that, an Election Notification was issued for electing Members of Telangana Legislative Assembly on 12.11.2018. The petitioner, representing Indian National Congress Party, filed his nomination papers on 14.11.2018. Respondent No.1, who was sponsored by Telangana Rashtra Samithi Party, also filed nomination papers for 26-Karimnagar Assembly Constituency. Polling took place on 07.12.2018. Results of 3 Dr.CSL, J E.P.No.28 of 2019 Election were declared on 11.12.2018. Respondent No.1 was declared to have been duly elected.
3. Respondent No.1, in contravention of Section-77 of Representation of People's Act, 1951(hereinafter be referred to as 'Act, 1951' for the sake of convenience of discussion), had incurred excess expenditure. As per the day to day accounts submitted by Respondent No.1, the total expenditure he incurred was Rs.50,36,531.85 paise upto 07.12.2018 and the same was duly certified by the Assistant Registrar by name Mrs. K.Jamuna Rani, who was the Officer in the Accounting Team. The maximum limit of Election expenses prescribed under Rule 90 of Conduct of Election Rules, 1961 for the Assembly Constituency is Rs.28,00,000/-. Respondent No.1 is involved in corrupt practices as envisaged under Section 123(6) of the Act, 1951 by spending more amount. Thus, the election of respondent No.1, who had won the election through corrupt practices, is liable to be declared as null and void.
4. Respondent No.1 filed counter-affidavit denying the allegations levelled against him and contending that the 4 Dr.CSL, J E.P.No.28 of 2019 petitioner has not pleaded the material facts as mandated under Section 83(1)(a) of the Act, 1951 and therefore, the petition filed by him cannot be treated as an Election Petition. Respondent No.1 contended that the Election Petition does not disclose any evidence to show that the account particulars submitted by him are contrary and not in accordance with the provisions of the Act, 1951. Respondent No.1 also contended that the Election Petition does not disclose any source of information with regard to his involvement in the alleged corrupt practice. Respondent No.1 stated that he adhered to the ingredients of Section 77 of the Act, 1951 by keeping a separate and correct account of all the expenditure and that he incurred Rs.27,46,037.35 paise, which is below the ceiling limit of Rs.28,00,000/-. Respondent No.1 contended that the expenditure incurred was verified, clarifications were taken and reconciled and the final expenditure arrived at is Rs.27,46,037.35 paise. Respondent No.1 submitted that the petitioner picked up and had chosen material documents whichever suits to his case and the total number pages in the document he relied upon is "123". But the petitioner had filed upto "113" pages only. 5
Dr.CSL, J E.P.No.28 of 2019 The findings from Pages "113 to 123" would throw light upon the issue in controversy. A mere vague and general statement that the candidate spent money in excess to the permissible ceiling limit would not be sufficient to constitute a corrupt practice. Furthermore, the Election Petition is not supported by the affidavit which is mandated under Rule 94A of the Conduct of Election Rules, 1961 and therefore, the Election Petition is liable to be dismissed.
5. Basing on the aforementioned pleadings, the following issues were settled for discussion:-
(i) Whether Respondent No.1 has incurred the expenditure exceeding the permissible limit as contended by the petitioner and if so, whether the same amounts to a corrupt practice?
(ii) Whether there exist any grounds to declare the election of Respondent No.1 as a Member of Legislative Assembly for 26 Karimnagar Assembly Constituency as null and void?
(iii) Whether there exist any justifiable grounds to disqualify Respondent No.1 from contesting the elections as sought for?
(iv) To what result?
6
Dr.CSL, J
E.P.No.28 of 2019
6. The petitioner to establish his case, examined P.Ws.1 and 2 on his side and got marked Exs.P-1, X-1 and X-2. On the other hand, respondent No.1 examined R.W-1 on his side and got marked Ex.B-1.
7. P.W-1 is the petitioner. P.W-2 is Smt K.Jamuna Rani, Assistant Registrar, Co-Operative Department, Karimnagar. R.W-1 is Sri K.Jagadish Babu, Assistant Audit Officer (Retired). Ex.P-1 is the notification issued by the Election Commission of India, dated 12.11.2018. Ex.B-1 is the certified copy of Register relating to Day-to-day Accounts of the contesting candidates. Ex.X-1 is the proceedings of the District Election Officer. Ex.X-2 is the Register relating to Day-to-day accounts of the contesting candidates.
8. Heard Sri T.Surya Satish, learned counsel for the petitioner, and Sri Sripada Prabhakar, learned senior counsel, who argued on behalf of Sri B.H.Saivikas, learned counsel on record for respondent No.1.
Issue No.1:-
9. Making his submission with regard to the merits of the matter, learned counsel for the petitioner contended that the 7 Dr.CSL, J E.P.No.28 of 2019 petitioner belongs to Indian National Congress party and respondent No.1 belongs to Telangana Rashtra Samithi party. The petitioner and respondent No.1 contested for the election of the Member of Legislative Assembly for 26-Karimnagar Assembly constituency in the elections held on 07.12.2018. Respondent No.1 was declared to have been duly elected. However, respondent No.1 spent huge amount for getting elected in contravention of the Act, 1951. The total expenditure incurred by respondent No.1, as per official records, was Rs.50,36,531-85 paise, where the ceiling limit is Rs.28,00,000/-. The entire record which is present with the Election Commission of India reveals that respondent No.1 incurred expenditure more than the permitted limit. Learned counsel also contended that respondent No.1, by incurring exorbitant and unpermitted expenditure, is guilty of adopting a corrupt practice and therefore, his election is liable to be declared as null and void.
10. Vehemently opposing the relief sought for, learned senior counsel appearing for respondent No.1 submitted that as per the provisions of the Act, 1951, burden rests upon the person who files an Election Petition to establish that the 8 Dr.CSL, J E.P.No.28 of 2019 election of the declared candidate is null and void. Learned senior counsel stated that false and misleading statements which are not supported by concrete evidence should not be taken into consideration. Learned senior counsel also stated that when the ceiling limit for election expenses is Rs.28,00,000/-, respondent No.1 had incurred a sum of Rs.27,46,037-35 paise only and thus, there are no grounds to allow the present Election Petition. Learned senior counsel further submitted that the evidence produced by the petitioner himself shatters his case. Learned senior counsel also contended that when the crucial document i.e., Day-to- day Accounts Register contains entries upto 123 pages, the petitioner with a mala fide intention and to suit his case, filed the Register upto 113 pages only, which itself goes to show the fraud played upon the Court by the petitioner. Learned senior counsel also stated that except the allegation that respondent No.1 incurred more than the permitted expenditure, there are no other allegations against him in the Election Petition and the said allegation is also far from truth and is not supported by any relevant material and thus, the 9 Dr.CSL, J E.P.No.28 of 2019 Election Petition is liable to be dismissed with exemplary costs.
11. To come to a conclusion with regard to the genuineness in the allegations levelled and the stand taken by the contesting candidates, the evidence that is brought on record plays a crucial and significant role.
12. P.W-1, in the affidavit given by him in lieu of his chief- examination, stated that during the elections held on 07.12.2018, respondent No.1 had incurred total expenditure in contravention of Section 77 of the Act, 1951, and as per the day-to-day accounts submitted by respondent No.1, the total expenditure incurred by him was Rs.50,36,531-85 paise and the same was duly certified by P.W-2. P.W-1 stated that the maximum limit of election expenditure prescribed under Rule 90 of the Conduct of Election Rules for Assembly Constituency is Rs.28,00,000/- and respondent No.1 won the election in a corrupt manner through corrupt practices and as such, he is liable to be disqualified.
13. P.W-1 during the course of cross-examination stated that he is familiar with the process of submitting the election 10 Dr.CSL, J E.P.No.28 of 2019 expenditure to the Election Officer and to his knowledge, the maximum election expenditure to be incurred is about Rs.25 lakhs for the Member of Legislative Assembly. P.W-1 stated that he do not have exact idea about the increased expenditure. P.W-1 stated that he applied for the information of the expenditure incurred by respondent No.1 through R.T.I. after declaration of the result. P.W-1 stated that the record submitted by him in the Election Petition contains 1 to 113 pages. When P.W-1 was questioned with regard to the Accounts Statement consisting of 123 pages and about his submission of 113 pages, he stated that he submitted the record obtained by him through R.T.I. and it is for the Court to verify the record submitted by the authorities. P.W-1 stated that according to him, respondent No.1 spent more than Rs.20 lakhs exceeding the prescribed limit. P.W-1 stated that the expenditure incurred by the political party cannot be added to the expenditure incurred by the candidate. P.W-1 stating that he is aware that political parties engages a star campaigner who is recognized by the Election Commission of India, admitted that the expenditure incurred in the meetings of a Star campaigner will not be debited to the expenditure of 11 Dr.CSL, J E.P.No.28 of 2019 the contesting candidate alone. He stated that it will be debited to all the candidates contesting on behalf of the party. P.W-1 stated that except the record consisting of 113 pages relating to the expenditure, he did not file any other document to show that respondent No.1 exceeded the maximum limit of expenditure. P.W-1 denied the suggestion that though he is aware that respondent No.1 incurred expenditure within the prescribed limit, only to harass respondent No.1, he filed the present Election Petition.
14. The evidence of P.W-2 (mentioned as 'C.W-1' in the deposition) by name K.Jamuna Rani is that she is working as Assistant Registrar, Co-Operative Department, Karimnagar, and in the year 2018, she received proceedings from the District Election Officer and Collector, Karimnagar appointing her as Member of Accounting team for the preparation of election work and implementation of election expenditure monitoring system by the Nodal Officers. She stated that Ex.X-2-Register was maintained by her from the date of nomination of the candidates till declaration of the result of the election. The Assistant Expenditure Observer supplies all the details of the expenditure incurred by the candidates and 12 Dr.CSL, J E.P.No.28 of 2019 the same was entered by her in Ex.X-2. She further stated that the entries of expenditure which were disagreed by the candidate will be referred to and settled by the District Election Expenditure Monitoring Committee headed by the Expenditure Observer.
15. P.W-2 during the course of cross-examination stated that after the meetings of the District Election Expenditure Monitoring Committee, the grand total of the expenditure incurred by respondent No.1 arrived at was Rs.27,46,037-35 paise as entered in page 123 of Ex.X-2. She further stated that it was reduced from Rs.34,21,718-35 paise to Rs.27,46,037-35 paise. P.W-2 admitted that the expenditures of the contesting candidates i.e., respondent No.1, the petitioner and one Sri Bandi Sanjay Kumar were reduced after reconciliation. P.W-2 admitted that the expenditure of the petitioner was reduced in page Nos.104, 113, 114, 120, 121, 127, 128, 129 and 130 of Ex.X-2-Register. P.W-2 admitted that the District Election Expenditure Monitoring Committee after reconciliation reduced the expenditures incurred by the three leading candidates i.e., the petitioner, 13 Dr.CSL, J E.P.No.28 of 2019 respondent No.1 and Sri Bandi Sanjay Kumar after proper scrutiny.
16. The evidence of R.W-1 i.e., Sri K.Jagadish Babu is that he was working as Assistant Audit Officer at District Audit Office, Telangana in the year 2018 and the District Election Officer, Karimnagar appointed him as Assistant Expenditure Observer in the Accounting team. R.W-1 stated that the other members in the accounting team were P.W-2 and one Sri Pavan Kumar. They monitored the other teams i.e., Video Surveillance Team, Video Viewing Team, Flying Squad, Static Surveillance Team, Media Certification and Monitoring Committee, Control Cell, etc. He further stated that they get reports from all the said teams and they maintain folder of evidence. He also stated that the expenditure of all the candidates will be entered in the respective Shadow Observation Register. The maximum permissible expenditure at that time was Rs.28,00,000/- per candidate contesting in the Assembly elections. The initial expenditure of all the three candidates, i.e., respondent No.1, the petitioner and Sri Bandi Sanjay Kumar exceeded the permissible limit and on the requisition of those candidates, the Director of Audio Visual 14 Dr.CSL, J E.P.No.28 of 2019 Publicity reduced the paper publication advertisements estimates and thereby, the expenditures were reduced and it came within the permissible limit. He stated that the said Rule was applied to all the three candidates and thus, respondent No.1 incurred expenditure of Rs.27,46,037.35 paise which is within the permissible limit. R.W-1 also stated that the initial expenditure incurred by the petitioner and respondent No.1 was above Rs.50,00,000/- and the expenditure incurred by Sri Bandi Sanjay Kumar was above Rs.49,00,000/-.
17. R.W-1 during the course of cross-examination stated that he did not file the proceedings issued by the District Election Officer, Karimnagar, appointing him as Assistant Expenditure Observer. R.W-1 also stated that he has not filed the proceedings of the District Election Expenditure Monitoring Committee. During the course of re-examination, R.W-1 stated that his name appears as Assistant Expenditure Observer in the proceedings of the District Election Officer and Collector, Karimnagar, vide Ex.X-1. 15
Dr.CSL, J E.P.No.28 of 2019
18. Before discussing with regard to the merits of the matter basing on the evidence adduced, this Court is under obligation to answer the point raised by the learned counsel for the petitioner with regard to the counter filed by respondent No.1. Learned counsel for the petitioner argued that respondent No.1 is at liability to file a written statement as per the provisions of the Act, 1951, but not a counter or counter-affidavit and thus, the pleadings of respondent No.1, which were filed by way of counter, should not be taken into consideration. Learned counsel further contended that even the said counter was not filed within time. In this regard, learned counsel for the petitioner relied upon the decision of the Hon'ble Apex court in the case between Kailash Vs. Nanhku and others 1.
19. The petitioner did not raise any objection whatsoever when counter was filed by respondent No.1 and when the issues were settled basing on the pleadings of the parties. Even at the time of adducing evidence or at any time thereafter, no such objection was raised. Only while advancing arguments, such a contention is raised. The 1 (2005) 4 SCC 480 16 Dr.CSL, J E.P.No.28 of 2019 nomenclature adopted for the pleadings filed by the opposite party either as 'written statement' or 'counter', makes no substantial difference so far as dealing with the matter on merits is concerned. That apart, when no objection was raised while receiving the counter by the Court, it cannot be expected on part of the petitioner to raise such an objection at a very belated stage i.e., at the time of arguments. Therefore, the said objection needs no consideration.
20. Coming to the merits of the matter, the whole contention of the petitioner is that respondent No.1, who is under obligation to incur expenditure below the prescribed limit or upto the prescribed limit of Rs.28,00,000/-, exceeded such limit and incurred expenditure more than a sum of Rs.50,00,000/-. Learned counsel for the petitioner argued at length in respect of the said deviation.
21. The submission of learned senior counsel who appeared for respondent No.1 is that petitioner had mislead the Court by filing along with his pleadings, the certified copy of Ex.X-2- Register only to the extent of 113 pages where the entries in the Register are upto 123 pages.
17
Dr.CSL, J E.P.No.28 of 2019
22. A perusal of contents of Ex.X-2-Register reveals that the grand total of expenditure incurred by respondent No.1 as disclosed at page-113 of Ex.X-2 is Rs.50,36,531-85 paise. However, after reconciliation, the said amount was reduced to Rs.27,46,037-35 paise as could be found at page-123 of Ex.X- 2-Register. Admittedly, the genuineness of Ex.X-2-Register is not in dispute.
23. P.W-2, who maintained Ex.X-2-Register and who gave evidence as witness of the petitioner, herself stated that the entries of expenditure which were disagreed by the candidates will be referred to and settled by the District Election Expenditure Monitoring Committee. She stated that after the meetings of the District Election Expenditure Monitoring Committee, the grand total of the expenditure incurred by respondent No.1 was arrived at and entered as Rs.27,46,037- 35 paise at page-123 of Ex.X-2-Register. P.W-2 admitted that the expenditures of the contesting candidates i.e., the petitioner, respondent No.1 and Sri Bandi Sanjay Kumar were reduced after reconciliation. There is no denial of the fact that the expenditures entered in Ex.X-2-Register initially, were reduced so far as the petitioner, respondent No.1 and Sri 18 Dr.CSL, J E.P.No.28 of 2019 Bandi Sanjay Kumar are concerned after proper scrutiny. Also, it is not the case of the petitioner that such a procedure is not contemplated under law or against the Rules and Regulations governing the field.
24. R.W-1 corroborated the testimony of P.W-2. Neither in the pleadings of the petitioner nor in the evidence of P.W-1 there is any concrete allegation supported by sufficient documentary proof to show that respondent No.1 incurred expenditure more than the permissible limit.
25. Stating that an unsupported statement cannot be taken into consideration to declare the election of an elected candidate as null and void, learned senior counsel who appeared for respondent No.1 relied upon the decision of the Hon'ble Apex Court in the case between Dhartipakar Madan Lal Agarwal Vs. Rajiv Gandhi 2, wherein their Lordships at para-20 of the judgment observed as under:-
"In order to constitute a corrupt practice as contemplated by Sections 77 and 123(6), it is necessary to plead requisite facts showing authorization, or undertaking of reimbursement by the candidate or his election agent. A mere vague and 2 1987(Supp) SCC 93 19 Dr.CSL, J E.P.No.28 of 2019 general statement that the candidate and his workers with his consent spent money in election in excess of the permissible ceiling would not be sufficient to constitute corrupt practice."
26. The petitioner in his pleadings contended that the expenditure incurred by respondent No.1 to a tune of Rs.50,36,531-85 paise was duly certified by P.W-2-K.Jamuna Rani, Assistant Registrar, who was an Officer in the Accounts team. However, the said officer who was examined as P.W-2, on oath stated that the grand total of expenditure incurred by respondent No.1 was arrived at Rs.27,46,037-35 paise. Also, her evidence is supported by the contents of Ex.X-2 i.e., the Register relating to day-to-day accounts of the contesting candidates. Thus, the oral evidence produced by the petitioner himself and the contents of Ex.X-2-Register fails to support the plea of the petitioner. No other material is on record to show that respondent No.1 incurred expenditure exceeding the permissible limit, as contended by the petitioner.
27. Thus, in the light of the foregoing facts and observations, this issue is answered against the petitioner. 20
Dr.CSL, J E.P.No.28 of 2019 Issue Nos.2 and 3:-
28. In the light of the discussion that went on issue No.1, this Court holds that there are no grounds whatsoever to declare the election of respondent No.1 as Member of Legislative Assembly for 26-Karimnagar Assembly Constituency as null and void and consequently, to disqualify him for contesting in the elections.
Issue No.4:-
29. In the result, this Election Petition is dismissed. Each party do bear their own costs.
30. Miscellaneous petitions pending, if any, shall stand closed.
Dictated to the Court Masters, typed by them, corrected and pronounced by me in the open Court on this, the 8th day of November, 2023.
________________________________________ Dr. JUSTICE CHILLAKUR SUMALATHA 08.11.2023 Ysk/dr 21 Dr.CSL, J E.P.No.28 of 2019 APPENDIX OF EVIDENCE WITNESSES EXAMINED ON BEHALF OF PETITONER:
P.W-1-Sri Ponnam Prabhakar, P.W-2-Smt K.Jamuna Rani, Assistant Register, Co-Operative Department, Karimnagar RESPONDENT No.1:-
R.W-1-Sri K.Jagadish Babu, Assistant Audit Officer (Retired) EXHIBITS MARKED ON BEHALF OF PETITIONER:
Ex.P-1-Notification issued by the Election Commission of India, dated 12.11.2018.
Ex.X-1-Proceedings of the District Election Officer Ex.X-2-Register relating to Day-to-day Accounts of the contesting candidates.
RESPONDENT No.1:
Ex.B-1-Certified copy of Register relating to Day-to-day Accounts of the contesting candidates.