THE HONOURABLE SRI JUSTICE M.LAXMAN
ELECTION PETITION No.23 of 2019
ORDER:
1. The present election petition is filed to declare the election of respondent as declared by the Returning Officer on 11.12.2018 as a Member of Telangana Legislative Assembly from Mahabubnagar Assembly Constituency (No.74) of Mahabubnagar District as void and to set aside the same.
2. The present petition is filed by the elector of the Mahabubnagar Assembly Constituency. The election petitioner is the voter in the final voter list published by the Returning Officer and his serial number is 507 in booth No.128. The election of the respondent is challenged on five grounds. The first ground is non- disclosure of immovable property covered under sale deed document bearing No.7704/2014 dated 02.09.2014 registered at Sub-Registrar Office 1413, Mahabubnagar, relating to an extent of land admeasuring Ac.0-31 guntas in Sy.No.259 of Palkonda Village, Mahabubnagar Mandal and District, owned by the spouse of the respondent. The second ground is non-disclosure of mortgage loan of Rs.12,00,000/- obtained by the spouse of the respondent from Andhra Pradesh Gramina Vikas Bank, Padmavati Colony Branch, Mahabubnagar, in respect to landed property covered in Sy.No.259 2 ML,J E.P.No.23 of 2019 of Palkonda Village, Mahabubnagar Mandal and District. The third ground is non-disclosure of bank account bearing No.52209878165 of the spouse of the respondent maintained with State Bank of India, Erragada Branch, Hyderabad, which contains balance of Rs.8,180.50/-. The fourth ground is non-disclosure of loan availed by the respondent for purchase of Toyota Fortuner vehicle bearing registration No.TS-06-EL-6666 from HDFC Bank, Lala-1, Land Mark MG, Ranigunj, Secunderabad. The said loan was availed by hypothecation agreement dated 18.05.2016 for a period of three years and such loan was in existence when the affidavit was sworn by the respondent in Form No.26 filed along with nomination papers. The fifth ground is that there was replacement of affidavit filed along with the nomination papers by the respondent with connivance of the Returning Officer.
3. The respondent was elected with a majority of 57,775 votes. The number of votes secured by the each contesting candidates in the elections is as follows:
Sl.No. Name Party Votes
Secured
1. Babu Chintalapally AAP 592
Alias Babul Reddy
2. Mohd. GulamGouse BLP 364
3. Chakali Satyanarayana Siva Sena 179
4. T. Venkata Swamy Independent 314
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E.P.No.23 of 2019
5. Srinivas Goud TRS 86474
Virusanolla
6. Jagadeesh Chand Independent 200
7. A Srisailam Yadav Independent 280
8. Marepally Surender NCP 11633
Reddy
9. Padmaja Reddy G. BJP 5945
10. Mudavath Ravi Naik Independent 513
11. V. Mallikarjun Independent 234
12. Mohammed Imtiyaz Independent 1147
Ahmed
13. M. Chandra Shekar TDP 28699
14. Syed Ibrahim BSP 21664
15. NOTA None of the 1423
above
4. The election petitioner claims that nomination of the respondent was improperly accepted by the Returning Officer in spite of non-disclosure of material required under law which are substantial in nature for the purpose of Section 33 of the Representation of the People Act, 1951, (for short 'the Act'). Thus, the present election petition.
5. The pleadings of the respondent show that he disclosed all immovable property held by his spouse. He admits that Form No.26 filed along with the nomination papers do not contain reference of mortgage loan obtained by his spouse to a tune of Rs.12,00,000/- from Andhra Pradesh Gramina Vikas Bank, Padmavati Colony Branch, Mahabubnagar, and also the bank account being maintained by his spouse with State Bank of India, Erragadda Branch, 4 ML,J E.P.No.23 of 2019 Hyderabad. He claimed that his spouse was doing independent business and he was not a partner or involved in such business transactions, as such, he had no knowledge with regard to loans obtained by her. He has also pleaded that the account held by his spouse with State Bank of India, Erragada Branch, Hyderabad, was non-operative and he has no knowledge of liveness of such account. The outstanding balance was only Rs.8,180.50/-.
6. The respondent also pleaded that in para No.8 of his affidavit in Form No.26 in the relevant column, he has furnished that there were nil dues by him to the banks and financial institutions. He admits that he has availed loan for purchase of Toyota Fortuner bearing No.TS-06-EL-6666 from the HDFC Bank, Ranigunj Branch, Secunderabad; that the monthly installments were being paid through electronic clearance from State Bank of Hyderabad (State Bank of India), Secretariat Branch; that he was under bona fide impression that the entire installments were cleared, as such, he could not disclose details of such loan in the affidavit and that such non-disclosure of account was under bonafide impression.
7. He has further pleaded that his assistant by name Raju used to pay the installments of the said car, as such, he was under the impression that his assistant has cleared the installments. It is also 5 ML,J E.P.No.23 of 2019 pleaded that such non-disclosure has not materially affected his election. He has admitted that the details of votes polled to all the contesting candidates as mentioned in the above tabular form is correct and prayed to dismiss the present election petition.
8. The election petitioner to prove his case examined P.Ws.1 to 7 and Exs.A-1 to A-10 are marked. On behalf of the respondent, he himself was examined as a R.W.1 and Exs.B-1 to B-6 are marked. Exs.X-1 to X-7 are marked through witnesses summoned by the election petitioner.
9. This Court initially framed three main issues, which are as follows:
"1. Whether the affidavit submitted by respondent No.1 in terms of Annexure-3 in Form No.26 filed along with the nomination papers for election to Mahabubnagar Assembly Constituency contains suppression of details relating to the immovable property acquired by the spouse of respondent No.1 under sale deed bearing document No.7704/2014, mortgage loan of Rs.12,00,000/- availed by the spouse of the respondent No.1 from Andhra Pradesh Gramina Vikas Bank, Padmavati Colony Branch, Mahabubnagar by mortgaging title deeds pertaining to sale deed document bearing No.7704/2014 registered on the file of Sub-Registrar Office, Mahabubnagar, loan availed by the spouse of respondent No.1 for purchase of Toyota Fortuner vehicle bearing registration No. TS 06 EL 6666 and also details with regard of bank account of spouse of respondent No.1 i.e., Mrs. V. Sharada with the State Bank of India, Erragada Branch bearing account No.52209878165?
2. Whether respondent No.1 committed malpractice in collusion with the returning officer by replacing the affidavit submitted in Form No.26 along with nomination papers which were found defective? and;6
ML,J E.P.No.23 of 2019
3. Whether the election of respondent No.1 is liable to be declared invalid on account of suppression and malpractice?"
10. Subsequently, the following additional issues were framed:
"1.Whether the election petition which is filed before this Court, was filed in person or not in compliance of Section 81 of the Representation of the People Act, 1950 (hereinafter referred to as 'the Act'?
2.Whether the absence of words 'True Copy' on every copy form part of Annexure in spite of signatures and attestation amounts to non-compliance of Section 81(3) of the Act?
3.Whether the petitioner has made out the grounds under Section 100 (1) of the Act?
4.Whether the compliances of the requirement of Section 81(1) and 81 (3) read with Section 86(1) of the Act with regard to filing of copies as many copies thereof as there are respondents and other non-compliance, after the original limitation of forty- five days, filing of EP is permissible?
5.Whether the Registrar has power to allow the election petitioner to rectify the defects in original Election Petition?
6.Whether the Election Petition lacks cause of action?"
11. Heard both sides.
Additional Issue No.1:-
12. Learned counsel for the respondent has contended that there is no endorsement on the election petition that the election petitioner was physically present when the election petition was presented, as required under Section 81 (1) of the Act. It is also his contention that the election petition has to be filed personally by 7 ML,J E.P.No.23 of 2019 the election petitioner before the Registrar, so that the Registrar may make preliminary verification with the election petitioner to see that the petition is neither frivolous nor vexatious. The presence of the election petitioner is also required as and when the election petition is re-presented. It is his contention that evidence on record shows that the physical presence of the election petitioner as claimed by him on the date of first presentation is not proved. Similarly, at the time of re-presentation, the presence of the election petitioner was also not proved. Therefore, compliance of Section 81 (1) of the Act was not done.
13. Learned counsel for the election petitioner has contended that the election petitioner and his advocate were personally present at the time of presentation of the election petition. There is no evidence that there was no physical presence of the election petitioner. He has also contended that at the time of re- presentation, the presence of the election petitioner is not required, since the preliminary verification must have been done at the time of first presentation. At the time of re-presentation, presence of advocate of the election petitioner is sufficient and it fulfills the requirement of Section 81 (1) of the Act. Therefore, the objection raised by the respondent is liable to be rejected. 8
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14. In this regard, it is apt to refer to Section 81 of the Act, which reads as under:
"Section: 81. Presentation of petitions:-
(1) An election petition calling in question any election may be presented on one or more of the grounds specified in 7 [sub- section (1)] of section 100 and section 101 to the 8 [High Court] by any candidate at such election or any elector within forty- five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates.
Explanation.--In this sub-section, "elector" means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.
(2) omitted.
(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition."
15. It is also relevant to refer to the Rules framed by this Court in High Court Manual which regulate the trial of the election petitions under the Act, which were framed in exercise of the powers conferred by Clause 37 of the Letters Patent of the High Court of Madras, Section 32 of the Andhra State Act, 1953, Section 129 of the Code of Civil Procedure, 1908, and all other powers enabling the High Court to frame the Rules. Rule No.3 of the above said Rules is relevant and the same reads as under: 9
ML,J E.P.No.23 of 2019 "3. Every Election Petition shall contain, in addition to particulars required by Section 83 of the Act, information as to the date of the election of the returned candidate or if there be more than one returned candidate at the election and the dates of their election are different, the later of the two dates and shall also show that the Election Petition is within the time prescribed by Section 81 of the Act.
It shall be filled in the office of the Registrar by the petitioner or an advocate duly appointed by him. In addition to the number of copies required by sub-section (3) of Section 81 of the Act, the petitioner shall file two more copies of the petitioner for Court record. He shall also file a certificate from the Head Accountant in token of having made the deposit required by Section 117 of the Act.
The Chief Scrutiny Officer in the Registry should see to affix the date stamp on each page of the Election Petition and copies of the Election Petition as well as the Annexures of the Election Petition filed along with the Election Petition to indicate the date of receipt of those papers by the Scrutiny Officer Section, before sending those papers to O.S. Section on that day itself. So, also the Chief Scrutiny Officer in the Registry shall see to put the date stamp whenever fresh papers are filed.
The Scrutiny Officer while checking the Election Petitions should indicate clearly about the defects he noticed on the presentation of the Election Petition, more particularly regarding the number of copies of the Election Petition, more particularly regarding the number of copies of the Election Petition, the Annexures, affidavit in Form No.25, verification by the Election Petitioner or by the Oath Commissioner as the case may be and other particulars."
16. A reading of Section 81 (1) of the Act, it is clear that the election petition shall be presented by any candidate at such election or any elector of such constituency. The word 'by' has been interpreted by the Apex Court in G.V. Sreerama Reddy v. Returning Officer1, wherein it was held that use of word 'by' 1 (2009) 8 SCC 736 10 ML,J E.P.No.23 of 2019 indicates physical presence of the election petitioner at the time of filing of the election petition. The object was to ensure the genuineness and curtail vexatious litigation. For that purpose, the presence of the election petitioner is required for preliminary verification. This means, the statutory requirement mandates presence of the election petitioner at the time of filing of the election petition. However, Rule No.3 framed by this Court to regulate trial of the election petition shows that the election petition shall be filed in the office of the Registrar by the election petitioner or by advocate duly appointed by the election petitioner. This Rule is running contrary to the statutory requirement of physical presence of the election petitioner at the time of filing of the election petition, as contemplated under Section 81 (1) of the Act.
17. The Supreme Court in Cooperative Central Bank Limited v. Additional Industrial Tribunal2, Babaji Kondaji Garad v. Nasik Merchants Coop. Bank Ltd.3 and Central Industrial Tribunal v. Taj Mahal Hotel, Secunderabad4, held that if there is conflict between the statutory provisions and Rules, the Rules must give in and the Act must prevail. Such Rule, which is in conflict with statutory 2 (1969) 2 SCC 43 3 (1984) 2 SCC 50 4 (1971) 3 SCC 550 11 ML,J E.P.No.23 of 2019 provision, requires to be ignored. The statutory provision has precedence and must be complied with. The Rules are made for carrying out the provisions of the Act. The Rules cannot take out what was conferred by the Act or whittle down its effect.
18. No doubt, Rule No.3 framed by this Court permits the election petitioner to file the election petition by himself or through advocate appointed by him. This Rule is against the statutory requirement, and if this Rule is accepted, it whittles down the effect of Section 81 (1) of the Act. Therefore, the election petitioner cannot take shelter under said Rule No.3 and he has to comply with the requirements of Section 81 (1) of the Act.
19. The endorsement on the election petition is not indicative with regard to presence or absence of the election petitioner. Therefore, some kind of evidence must be brought on record by the election petitioner to establish his presence at the time of filing of the election petition. The purpose of presence of the election petitioner has been indicated by the Apex Court. The presence facilitates preliminary verification with the election petitioner to ensure genuineness of his claim of the election petitioner and to avoid frivolous and vexatious litigation. The endorsement on the election petition does not refer to any such preliminary verification 12 ML,J E.P.No.23 of 2019 either by the Registrar or any officer of the Registry. The endorsement only refers to receipt and sealing and nothing more than that.
20. The evidence of P.W.1 i.e., the election petitioner is silent with regard to his presence at the time of filing of the election petition. However, in the cross-examination, P.W.1 claims that he was present on the date of filing of the election petition i.e., on 24.01.2019 in the concerned section along with his advocate. The election petition was presented on 24.01.2019 and it was returned on 28.02.2019 with 15 objections. The evidence of P.W.1 shows that on two occasions, he was present in the High Court premises. The first occasion was on 24.01.2019 and the second occasion was on 23.03.2019. This means, at the time of re-presentation on 06.03.2019, the election petitioner was not physically present. The election petitioner has not examined the advocate with whom he was present on the date of filing of the election petition. His chief examination is also silent with regard to physical presence along with his advocate. Such claim has been only made by him in his cross-examination.
21. Learned counsel for the respondent brought to the notice of this Court that circumstances made out from the evidence 13 ML,J E.P.No.23 of 2019 improbablize the presence of the election petitioner along with his advocate when the election petition was presented. The first circumstance is that the original election petition shows that the verification was done on 23.01.2019, whereas the annexure shows that verification was done on 24.01.2019. The attestation was done by notary Challari Nageswara Rao, Advocate, who is resident of HIG- I, B-4, F-12, Baghlingampally, Hyderabad-44. The bank receipts and lodgment schedule show initials of the advocate, and they do not show the signatures of the election petitioner.
22. The second circumstance brought to the notice of this Court is that admittedly, for entry into the premises of this Court, security gate pass was required. The election petitioner did not assertively say that he obtained gate pass from the security on 24.01.2019. In cross-examination, he admitted that security gate pass is required to enter into the High Court premises, but it was not required to enter into the filing section. This means, he admits requirement of gate pass for entering into the High Court.
23. The other circumstance was that he was unable to say affirmatively that whether documents were notarized on one day or on the different dates. He has also claimed that notary was done by the side of Gate No.6 of the High Court and he also admitted 14 ML,J E.P.No.23 of 2019 that the address of the notary advocate is shown as Baghlingampally.
24. Learned counsel for the respondent, by bringing the above circumstances, tried to contend that those circumstances clearly improbablize the claim of P.W.1 that he was physically present along with his advocate on the date of filing of the election petition.
25. In the present case, initially, receiving officer had not noted whether the election petition was filed by the election petitioner or his advocate. In the absence of such endorsement, the evidentiary burden is on the election petitioner to prove his physical presence with advocate on the date of presentation of the election petition.
26. In the present case, in fact, no claim has been made in the chief-examination of P.W.1, in spite of knowledge of preliminary issue in this regard was raised, much before commencement of trial. Such issue was postponed by framing additional issue, so that the parties were given full opportunity to establish the requirement under Section 81 (1) of the Act.
27. In the present case, in spite of framing such an issue, P.W.1 did not plead in his chief-examination about his physical presence. 15
ML,J E.P.No.23 of 2019 The election petition does not refer about his physical presence. The only rightful person is either the officer, who received the election petition or the advocate with whom the election petitioner claimed to have accompanied on the date of filing of the election petition.
28. In the present case, these two crucial witnesses have not been introduced in the evidence with regard to presence of the election petitioner. P.W.1 only claimed in the cross-examination about his presence along with his advocate. Except the same, there is no other evidence. However, the circumstances put forth by the respondent in the cross-examination of P.W.1 show absence of security gate pass, which admittedly is required for entering into the premises of this Court and there is no signature of the election petitioner on the deposit slip of the State Bank of India (Hyderabad), which is situated in the High Court premises, and also in the lodgment schedule. They only refer to the presence of advocate.
29. The other circumstance was attestation by notary. The election petitioner could not able to claim affirmatively whether the verification of the election petition and documents was done on one day or different days. The election petition shows that the 16 ML,J E.P.No.23 of 2019 verification was done on 23.01.2019 and the affidavit and other documents were attested on 24.01.2019. The election petitioner claims that attestation was done at Gate No.6 of this Court, since the notary advocate was having his office at Gate No.6. There is no evidence to the effect that the notary advocate has set up his office in the premises of this Court and that any permission is granted by this Court to establish his office at Gate No.6. Further, the office seal of the notary advocate shows that he is resident of Baghlingampally and that his office is in Baghlingampally. The seal disclose attestation was done at Baghlingampally. The claim of the election petitioner that attestation was done in the premises of this Court can also be doubted by his own admission. According to P.W.1, he has first time come to this court on 24.01.2019, the date of presentation of the election petition. Attestation of election was done on 23.01.2019 which is one day prior to filing of the election petition.
30. The circumstance brought out by the respondent improbablizes claim set up by the election petitioner that he was physically present along with his advocate on the date of filing of the election petition. The evidence also shows that the election petition was returned on 28.02.2019 and it was re-presented on 17 ML,J E.P.No.23 of 2019 06.03.2019. Admittedly, the election petitioner visited this Court on 24.01.2019, and next, on 23.03.2019. This means, on 06.03.2019, he was not present. In the cross-examination, P.W.1 admitted that there is slight difference in his signatures at page Nos.93 and 94 when compared with that of page Nos.84 to 92. The objection No.7 of return endorsement shows that signature of the election petitioner was not on all papers. This means, this variation in signature might be on account of his absence when the attestation was done by notary on the date mentioned therein. There is no proper explanation from the election petitioner as to why there was variation in the signatures in those papers.
31. All these circumstances make out that the claim set up by the election petitioner is improbalized by the respondent. Further, admittedly, he was not present at the time of re-presentation. The presentation includes re-presentation and when the law insists for physical presence as and when there was presentation. The physical presence is also essential at the time of re-presentation. Therefore, the election petitioner has not substantially complied with Section 81 (1) of the Act. Accordingly, this issue is answered against the election petitioner.
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ML,J E.P.No.23 of 2019 Additional issue No.2:
32. The main contention of the learned counsel for the respondent in this regard is that the copies which are accompanied with the election petition are only bearing the signature of the election petitioner and there is no incorporation of words 'true copy', which amounts to non-compliance of Section 81(3) of the Act. It is also his contention that copies served to the respondent contain blanks in verification. Therefore, he sought dismissal of the election petition on this ground alone.
33. On the contrary, learned counsel for the election petitioner has contended that there is signature of the election petitioner on the copies served to the respondent, and mere omission of words 'true copy' is not fatal to the case. He has further contended that it is not the case of the respondent that copies received were not substantially similar to the original election petition and Annexures filed in the Court. As there was substantial compliance, the election petition cannot be dismissed on that ground. He has relied upon the decisions of the Apex Court in Umesh Challiyill v. K.P. Rajendran5 and Mithilesh Kumar Pandey v. Baidyanath Yadav6. 5 (2008) 11 SCC 740 6 (1984) 2 SCC 1 19 ML,J E.P.No.23 of 2019
34. A reading of the above decisions, it is clear that the defects in verification, non-serving of proper copies and non-bearing of signatures in the papers of the election petition at one or two places are minor defects which are curable. But, in the true copies if any vital and material variations are found from the original petition, the election petition suffers from fatality.
35. The Apex Court had an occasion to deal with the intended purpose of true copy in T.M.Jacob v. C.Poulose7 and held that the test to determine whether a copy was a true one or not was to find out whether any variation from the original was calculated to mislead a reasonable person. It is further held that the word 'copy' does not mean absolutely exact copy. It means, a copy so true that nobody can by any possibility misunderstand it. The true test whether the copy is a true or not is whether any variation from the original is calculated to mislead an ordinary person.
36. In the present case, there is signature of the election petitioner on the copy served to the respondent, which is not in dispute. The words 'true copy' are missing. There is nothing on record to show that any material variations are found in the copies when compared with the original petition. Therefore, such 7 MANU/SC/0271/1999 20 ML,J E.P.No.23 of 2019 objection is not tenable. There is substantial compliance of requirement of Section 81(3) of the Act. Accordingly, this issue is answered in favour of the election petitioner. Additional issue Nos.4 and 5:
37. Learned counsel for the respondent in this regard has contended that the objections which were taken for returning the election petition indicate that respondents' copies which are required to be filed under Section 81(3) of the Act were not filed. This is made out from objection No.14 of the scrutiny section. According to learned counsel for the respondent, if the election petition is not in order, the Registrar is obligated to place such election petition in SR stage and place the matter before the concerned Court dealing with the election petitions so as to pass appropriate orders.
38. Learned counsel for the respondent has also contended that such material defects, if any, can be cured within limitation of 45 days which is the limitation for filing the election petition. According to him, in the present case, there is no substantial compliance of Section 81(3) of the Act in filing as many copies thereof as there are respondents mentioned in the election petition. According to him, such a requirement has not been 21 ML,J E.P.No.23 of 2019 substantially complied with and such compliance was done after 45 days i.e., on 06.03.2019, which is beyond the original limitation.
39. Learned counsel for the respondent has further contended that the Registrar is not competent to extend the time for compliance and it is the Judge who is dealing with the election petitions is competent to extend the time for curing the defect, if it is a curable one. He has further contended that if the defects are incurable, the Judge has also no power to extend the time. In support of his contention, the learned counsel for the respondent has relied upon the following decisions:
1. Sharif-ud-din v. Abdul Gani Lone.8
2. Mani C. Kappan v. K.M.Mani.9
3. Mangani Lal Mandal v. Bishnu Deo Bhandari.10
4. Prem Singh Rathore v. T. Raja Singh and others.11
5.F.A. Sapa v. Singora.12
6. Ravi Namboothiri v. K.A. Baiju.13
7. Mary Thomas v. Anil Akkara.14
8. G. Devarajegowda v. Prajwal Revanna alias Prajwal R.15 8 (1980) 1 SCC 403 9 2006 SCC OnLine Ker 504 10 (2012) 3 SCC 314 11 E.P.No.15 of 2019 of TS HC.12
(1991) 3 SCC 375 13 2022 SCC OnLine SC 1550 14 2017 SCC OnLine Ker 8796 15 AIR Online 2020 Kar 138 22 ML,J E.P.No.23 of 2019
9. Kanimozhi Karunanidhi v. A. Santhana Kumar.16
10. People's Union for Civil Liberties v. Union of India.17
11. M. Manohar Reddy v. Union of India.18
12. P. Leela Rani v. Agency Divisional Officer, Bhadrachalam, Khammam District.19
40. Conversely, learned counsel for the election petitioner has contended that non-filing of copies as many copies thereof as there are respondents mentioned in the election petition is a curable defect and it is not fatal so as to dismiss the election petition at the threshold. He has also contended that for the fault of the Registry in returning the election petition for compliance of objections by granting time is a mistake on the part of the Court and the election petitioner cannot be penalized for any such mistake done by the Court. He has further contended that the defects pointed out by the respondent, as referred in the objections, are curable and minor defects which can be cured within the time extended by either the Registry or the Court.
41. In support of his contention, the learned counsel for the election petitioner has relied upon the following decisions:
1.Umesh Challiyill (cited 5th supra).
16 2023 SCC OnLine SC 573 17 (2003) 4 SCC 399 18 (2013) 3 SCC 99 19 2002 SCC OnLIne AP 804 23 ML,J E.P.No.23 of 2019
2. Abdulrasakh v. K.P.Mohammed.20
3. Chandrakant Uttam Chodankar v. Dayanand Rayu Mandrakar.21
4. Kisan Shankar Kathore v. Arun Dattatray Sawant.22
5. S. Rukmini Madegowda v. State Election Commission.23
6. Madiraju Venkata Ramana Raju v. Peddireddigari Ramachandra Reddy.24
7. Mithilesh Kumar Pandey (cited 6th supra).
8. Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore.25
9. CH. Subbarao v. Member Election Tribunal, Hyderabad.26
10. Krishnamoorthy v. Sivakumar.27
42. The Constitutional Benches of the Apex Court in Ch.Subbarao (cited 26th supra) and Murarka Radhey Shyam Ram Kumar (cited 25th supra) have laid down the principle of substantial compliance in dealing with Section 81(1) and 81(3) of the Act and it has been held that when there was a substantial compliance, there is no need to dismiss the election petition for non-compliance of Section 81(1) and 81(3).
20 (2018) 5 SCC 598 21 (2005) 2 SCC 188 22 (2014) 14 SCC 162 23 2022 SCC OnLine 1218 24 (2018) 14 SCC 1 25 (1964) 3 SCR 573 26 (1964) 6 SCR 213 27 (2015) 3 SCC 467 24 ML,J E.P.No.23 of 2019
43. Section 81(3) of the Act requires number of copies as there are number of respondents. Rule (3) of the High Court Election conduct rules requires two additional copies. Rule (6) require same number of copies as there were number of respondents to send through registered post in addition to regular process to be served through Nazarath of local Court where the respondent stays.
44. In the present case, objection No.14 refers complete non- filing of respondents' copies. Complete non-filing of copies as required under Section 81(3) of the Act is not substantial compliance. Substantial compliance would arise, if copies are atleast filed as required under Section 81(3) of the Act. However, non filing of additional copies as required under the Rules of High Court may not entail dismissal of the election petition and such non compliance can be cured. Even if there are any other defects in the copies which were filed, they are all minor and curable defects. Completely ignoring of filing copies in terms of Section 81(3) did not amount to substantial compliance.
45. Now, the question is whether such a compliance of Section 81(3) of the Act can be allowed to be cured by either the Registrar or the Court after limitation period is completed. 25
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46. A clue can be get from the decision of the Apex Court in T.M.Jacob's case (cited 7th supra), wherein while interpreting the copy of original, it was held that when the copy differs with the original material particulars, it cannot be treated as true copy of original and such vital defect cannot be permitted to be cured after expiry of limitation period. This means, incurable defects cannot be cured after limitation and such defects, if any, can only be carried out within 45 days.
47. In the present case, complete non-filing is not a substantial compliance. Such defect must have been cured within the limitation and they are not minor defects which can be allowed to be cured in the extended period.
48. The Apex Court in Abdulrasakh's case (cited 20th supra) had an occasion to deal with the aspect of curing of the defects raised by the Registry, wherein it was held that only curable and typographical errors can be allowed to be corrected after limitation but within the time prescribed and minor defects can also be corrected after limitation, but within the extended time granted by either the Registrar or the Court.
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49. In the present case, the defects pointed out are complete infraction of Section 81(3) of the Act and such defects are incurable after limitation is completed. The requirement of Section 81 of the Act is that the election petition must be filed in order within time. Only minor curable defects are permitted to be cured and the material defects are not permitted to be cured. Therefore, non- compliance of filing of copies as many as respondents are there, is a complete infraction and the same cannot be cured after limitation is completed. I hold that such defects are incurable after limitation.
50. In the present case, the Assistant Registrar returned the election petition by extending time. The time extended is seven days and such extension was done on 28.02.2019. Even though the limitation for filing the election petition expired on 25.01.2019, the Assistant Registrar extended the time, which is not permissible under the Rules. In this regard, Rule 4 of the Election Petition Rules framed by this Court is relevant and it reads as under: "4. If the Election Petition is not found in order, the office shall post the election petition in the SR stage with office objections before the Court for orders."
51. A reading of the above Rule, it mandates the office to post the election petition in SR stage with office objections before the 27 ML,J E.P.No.23 of 2019 concerned judge for orders. It is for the concerned judge to decide whether the objections raised are curable or incurable. If the Court feels that the defects are not material defects and they are curable, the Court can extend the time as held by the Apex Court in Abdulrasakh's case (cited 20th supra). However, in the present case, the Assistant Registrar acted without jurisdiction.
52. The fault of the Registry is an act of the Court, and for the act of the Court, no one shall suffer. In this regard, it is apt to refer to the decision of the Apex Court in A.R.Antulay v. R.S.Nayak28, whereunder it was held that it is a settled principle that an act of the Court shall prejudice no man. This maxim actus curiae neminem gravabit is founded upon justice and good sense and affords a safe and certain guide for the administration of the law.
53. In the present case, though the Assistant Registrar had no power, he extended the time. For such a mistake, the election petitioner cannot be made to suffer. Hence, I hold that the time granted by the Assistant Registrar can be said to be a mistake on the part of the Court and the same shall not go to the prejudice. 28
(1988) 2 SCC 602 28 ML,J E.P.No.23 of 2019
54. In the present case, material compliance was not done within limitation and there is no substantial compliance within the original limitation. The defects which are carried out in pursuance of the extension of time by the Assistant Registrar and if they are minor, they can be allowed to be cured even after limitation. The objections of registry except objection No. 14 are minor defects and they can be cured even after limitation.
55. In the present case, there is a complete disregard of filing of copies as required. Therefore, this Court finds that there was complete non-compliance of Section 81(3) of the Act in filing number of copies as there were respondents. Such non-compliance results dismissal of the election petition. Accordingly, this issue is partly answered in favour of the election petitioner and partly in favour of the respondent.
Main issue No.2 and Additional issue No.6:
56. The pleadings of the election petitioner show that the election is challenged on the ground of non-disclosure. Apart from the same, there is ground of malpractice i.e., replacement of affidavit in Form No.26.
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57. In the present case, cause of action relating to non-disclosure has been properly pleaded and the cause of action relating to replacement of affidavit has not been properly pleaded. There are no details with regard to the person actually involved in replacement of affidavit except general allegation that the respondent, in connivance with the Returning Officer, replaced the affidavit. The act of replacement amounts to malpractice. The basis for such an allegation was Ex.X-3, report of District Revenue Officer, Mahabubnagar, dated 11.12.2021 and such report reference is also not pleaded.
58. The author of Ex.X-3 is P.W.6. The report shows that nomination along with the affidavit in Form No.26 was uploaded on the website on 14.11.2018 and nomination papers along with affidavit in Form No.26 by the election petitioner dated 19.11.2018 were also uploaded. There is a deletion of some data. According to report of P.W.6, this must have been done by the Returning Officer. The cross-examination of P.W.6 shows that such a conclusion was arrived on the basis of information given by Murali and Kiran, staff of election section of Returning Officer. They worked in the election duties at the relevant point of time. The evidence of P.W.7, the Returning Officer, shows that there is no deletion. 30
ML,J E.P.No.23 of 2019
59. The case of the election petitioner is not with regard to deletion, but with regard to replacement of the affidavit. There is no evidence of replacement of the affidavit and it is a case of alleged deletion. The clarification made by the Election Commissioner shows that certain information, which is not relavant, do not visible online and same cannot be said to be deleted. The proper persons to explain about the deletion are Murali and Kiran, but they were not examined. The evidence of P.W.6 and report is based hear-say evidence. Such evidence is contrary to the evidence of P.W.7, the Returning Officer. Therefore, it is not established that there is replacement of any affidavit.
60. In the course of arguments, learned counsel for the election petitioner has not pressed issue No.2 in view of the clarification made by the Election Commissioner. Seeing from any angle, I found that there is no replacement of any affidavit.
61. The pleadings relating to non-disclosure are clearly and specifically pleaded. Such pleadings make out cause of action. Therefore, it cannot be said that there is no cause of action. Accordingly, I hold that the pleadings make out cause of action. 31
ML,J E.P.No.23 of 2019 Main issue Nos.1 and 3 & Additional Issue No.3:
62. The election petitioner challenged the election of the respondent on the grounds of non-disclosure. According to the election petitioner, the respondent did not disclose in Form No.26 about the details of (i) property purchased by his spouse under sale deed dated 7704/2014 in respect of land admeasuring Ac.0-31 guntas in Sy.No.259 of Palkonda Village, Mahabubnagar Mandal and District, (ii) mortgage loan of Rs.12,00,000/- availed by the spouse of the respondent from Andhra Pradesh Gramina Vikas Bank, Mahabubnagar, (iii) loan availed by the respondent for purchase of Toyota Fortuner bearing registration No.TS-06-EL-6666 from HDFC Bank, Ranigunj, Secunderabad, and (iv) bank account being maintained by his spouse with State Bank of India, Erragadda Branch, Hyderabad.
63. Dealing with non-disclosure of immovable property, learned counsel for the election petitioner has contended that the properties in Sy.Nos.258, 259, 268/5/A, 268/A1 and 269/A of Palkonda Village were purchased under seven documents. Out of them, two documents are dated 02.09.2014, but the document No.7704/2011 relating to land admeasuring Ac.0-31 guntas in 32 ML,J E.P.No.23 of 2019 Sy.No.259 was referred. According to him, this amounts to non- disclosure.
64. Learned counsel for the respondent has contended that the respondent purchased the total extent of land admeasuring Ac.5-34 guntas in the above survey numbers under the seven sale deeds. Out of them, two sale deeds dated 02.09.2014 and other five sale deeds are dated 05.01.2015, 06.08.2015, 09.10.2015 and 20.09.2016. The alleged non-disclosure of land admeasuring Ac.0-31 guntas forms part of Ac.5-34 guntas. This has been admitted by P.W.1 in his cross examination. According to the learned counsel for the respondent, the only grievance of the election petitioner is that when two sale deeds are of same date, the election petitioner ought to have referred two dates, but not a single date.
65. The admission of P.W.1 shows that entire extent of lands relating to Palankonda village covering Sy.Nos.258, 259, 268 and 269 are Ac.5-34 guntas. Ac.0-31 guntas of land is also part of total extent of Ac.5-34 guntas. There is complete disclosure of entire extent of land held by the spouse of the respondent relating to Palakonda village covering the above said survey numbers. The only grievance of the election petitioner is that land admeasuring 33 ML,J E.P.No.23 of 2019 Ac.0-31 guntas which was purchased on 02.09.2014 was in addition to other extent purchased on 02.09.2014. According to him, when the dates of sales are mentioned, the respondent should have mentioned two dates i.e., 02.09.2014 and 02.09.2014. This stand of the election petitioner appears to be illogical. In Form No.26, there is no requirement of mentioning the sale deed document numbers. Total extent of land purchased by spouse is mentioned and dates of purchase are also mentioned. They are substantial compliance. There is no suppression. Therefore, this Court finds that the details of the immovable properties are correctly disclosed.
66. With regard to mortgage loan of Rs.12,00,000/- availed by the spouse of respondent No.1 from Andhra Pradesh Gramina Vikas Bank, Mahabubnagar and the bank account being maintained by his spouse with State Bank of India, Erragadda Branch, Hyderabad, the said details are admittedly not referred in Form No.26. The defence of the respondent is that the spouse is having independent business and he is not participating in such business and having no knowledge about availment of mortgaged loan by his spouse. Similarly, he took the defence that he has no knowledge that account was still in operative relating to State Bank of India, 34 ML,J E.P.No.23 of 2019 Erragadda Branch, Hyderabad. According to the respondent, such account is not to his knowledge, and in fact, it is a non-operative account from long time.
67. The verification of the affidavit with regard to non-disclosure reads as under:
"VERIFICATION I, the deponent, above named, do hereby verify and declare that the contents of this affidavit are true and correct to the best of my knowledge and belief and no part of it is false and nothing material has been concealed therefrom. I further declare that:
(a) There is no case of conviction or pending case against me other than those mentioned in items 5 and 6 of Part A and B above;
(b) I, my spouse, or my dependents do not have any asset or liability other than those mentioned in items 7 and a of Part A and items 8, 9 and 10 of Part B above.
Verified at Mahabubnagar, on this the 19th day of November, 2018.
DEPONENT"
68. A reading of the above verification shows that the facts mentioned is based to the best of knowledge and belief of the deponent. This means, there is no affirmative requirement about the facts stated in the affidavit. The statement of affidavit is based on best of knowledge and belief of the deponent. Form-26 is in compliance of Rule 4-A of the Conduct of Election Rules, 1961. The said Rule was introduced in pursuance of direction given by the 35 ML,J E.P.No.23 of 2019 Apex Court in Union of India v. Association for Democratic Reforms and Another29 and the relevant portion of the judgment reads as under:
"42. To sum up the legal and constitutional position with emerges from the aforesaid discussion, it can be stated that:-
1. The jurisdiction of the Election Commission is wide enough to include all powers necessary for smooth conduct of elections and the word 'elections' is used in a wide sense to include the entire process of election which consists of several stages and embraces many steps.
2. The limitation on plenary character of power is when the Parliament or State Legislature has made a valid law relating to or in connection with elections, the Commission is required to act in conformity with the said provisions. In case where law is silent, Article 324 is a reservoir of power to act for the avowed purpose of having free and fair election. Constitution has taken care of leaving scope for exercise of residuary power by the Commission in its own right as a creature of the Constitution in the infinite variety of situations that may emerge from time to time in a large democracy, as every contingency could not be foreseen or anticipated by the enacted laws or the rules. By issuing necessary directions Commission can fill the vacuum till there is legislation on the subject. In Kanhiya Lal Omar's case, the Court construed the expressions "superintendence, direction and control" in Article 324(1) and held that a direction may mean an order issued to a particular individual or a precept which may have to follow and it may be a specific or a general order and such phrase should be construed liberally empowering the election commission to issue such orders.
3. The word "elections" includes the entire process of election which consists of several stages and it embraces many steps, some of which have an important bearing on the process of choosing a candidate. Fair election contemplates disclosure by the candidate of his past including the assets held by him so as to give a proper choice to the candidate according to his thinking and opinion. As stated earlier, in Common Cause case (supra), the Court dealt with a contention that elections in the country are fought with the help of money power which is gathered from black sources and once elected to power, it becomes easy to collect tons of black money, which is used for retaining power and for re-election. If on affidavit a candidate is required to disclose the assets held by him at the time 29 2002 (3) ALD 90 (SC) 36 ML,J E.P.No.23 of 2019 of election, voter can decide whether he could be re-elected been in case where he has collected tons of money Presuming, as contended by the learned senior counsel Mr. Ashwini Kumar, that this condition may not be much effective for breaking a vicious circle which has polluted the basic democracy in the country as the amount would be unaccounted. May be true, still this would have its own effect as a step-in-aid voters may not elect law- breakers as law-makers and some flowers of democracy may blossom.
4. To maintain the purity of elections and in particular to bring transparency in the process of election, the Commission can ask the candidates about the expenditure incurred by the political parties and this transparency in the process of election would include transparency of a candidate who seeks election or re-election. In a democracy, the electoral process has a strategic role. The little man of this country would have basic elementary right to know full particulars of a candidate who is to represent him in Parliament where laws to bind his liberty and property may be enacted.
5. The right to get information in democracy is recognised all throughout and it is natural right flowing from the concept of democracy. At this stage, we would refer to Article 19(1) and (2) of the International Covenant of Civil and Political Rights which is as under:-
"(1) Everyone shall have the right to hold opinions without interference.
(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice."
6. Cumulative reading of plethora of decisions of this Court as referred to, it is clear that if the field meant for legislature and executive is left unoccupied detrimental to the public interest, this Court would have ample jurisdiction under Article 32 read with Article 141 and 142 of the Constitution to issue necessary directions to the Executive to subserve public interest.
7. Under our Constitution, Article 19(1)(a) provides for freedom of speech and expression. Voters's speech or expression in case of election would include casting of votes that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is must. Voter's (little man- citizen's) right to know antecedents including criminal past of his candidate contesting election for MP or MLA is much more fundamental and basic for survival of democracy. The little man may 37 ML,J E.P.No.23 of 2019 think over before making his choice of electing law breakers as law makers.
43. In this view of the matter, it cannot be said that the directions issued by the High Court are unjustified or beyond its jurisdiction. However, considering the submissions made by the learned counsel for the parties at the time of hearing of this matter, the said directions are modified as stated below.
44. The Election Commission is directed to call for information on affidavit by issuing necessary order in exercise of its power under Article 324 of the Constitution of India from each candidate seeking election to Parliament or a State Legislature as a necessary part of his nomination paper, furnishing therein, information on the following aspects in relation to his/her candidature:-
(1) Whether the candidate is convicted/acquitted/ discharged of any criminal offence in the past-if any, whether he is punished with imprisonment or fine?
(2) Prior to six months of filing of nomination whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the Court of law. If so, the details thereof. (3) The assets (immovable, movable, bank balances etc.) of a candidate and of his/her spouse and that of dependants. (4) Liabilities, if any, particularly whether there are any over dues of any public financial institution or Government dues. (5) The educational qualifications of the candidate."
69. The requirement to refer the details of liability, assets and criminal antecedents is in compliance of Article 19(1)(a) of the Constitution of India which provides for freedom of speech and expression. Such expression includes voter's speech or expression in case of election. The voter speaks out or expresses by casting vote. For that, he has right to know antecedents. Such a requirement is found fundamental and basic for survival of democracy.
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70. A right to privacy is also one of the facets of Article 21 of the Constitution of India. Under the law, husband and wife are independent personalities. Each one is entitled to have his/her own secrecy. Such a right is provided under Article 21 of the Constitution of India. The wife has every right to have her own privacy with regard to assets and liabilities. The disclosure pre- supposes existence of knowledge. This means, non-disclosure would attract when the person who non-disclosed had knowledge about the fact non-disclosed.
71. In the present case, the entire case of the election petitioner is that the mortgage loan and the bank account of the spouse of the respondent were not referred in the election affidavit.
72. The plea set up by the respondent is that he has no knowledge about the mortgage loan obtained by his spouse and also the account being maintained by her with State Bank of India, Erragadda Branch, Hyderabad.
73. The facts relating to mortgage loan and bank account with State Bank of India, Erragadda branch, Hyderabad, of the spouse of the respondent were not referred in the election affidavit filed in Form No.26. When the defence of the respondent is that he had no 39 ML,J E.P.No.23 of 2019 knowledge about such facts, the burden is on the election petitioner to establish that the respondent is aware of such facts. To establish the said aspects, some kind of evidence must be brought on record by the election petitioner which attributes knowledge of such facts to the respondent. However, such evidence is lacking in the present case. The only evidence adduced by the election petitioner is that such disclosure was not made in Form No.26. The disclosure of such facts would arise when the person who did not disclose had knowledge about existence of such a fact. Existence of fact to the knowledge of the respondent must be established by the election petitioner.
74. In this case, such evidence is lacking. Therefore, it cannot be said that non-disclosure relating to availment of loan and existence of account of the spouse of the respondent attract penal consequences.
75. The other ground raised by the election petitioner is that the respondent has not disclosed the loan pertaining to Toyota Fortuner bearing registration No.TS-0-6EL-6666 from HDFC Bank, Ranigunj Branch, Secunderabad.
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76. There is no doubt that the respondent had obtained loan from HDFC Bank, Ranigunj Branch, Secunderabad, for purchase of the said car and the said car is in the name of the respondent. It is also admitted fact that in paragraph No.8 of Form No.26 with reference to the loans of the respondent with the banks/financial institutions, it is shown as 'nil'. In fact, there is a loan standing to the credit of the respondent. The defence of the respondent in this regard is that he was under the impression that his loan was cleared. This contention is untenable for the reason that when the respondent was conscious about the hypothecation and loan period, he cannot contend that he was under the impression that all installments are cleared since payment of monthly installments are by electronic process. Such non-disclosure might be on account of negligence or deliberate one.
77. Now, the question is whether this non-disclosure falling under one of the grounds contemplated under Section 100 of the Act so as to set aside the election of the respondent?
78. In this regard, it is relevant to refer to Section 100 of the Act which reads as under:
41
ML,J E.P.No.23 of 2019 "100. Grounds for declaring election to be void:- (1) Subject to the provisions of sub-section (2) if the High Court is of opinion:-
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of 1963); or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected--
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.
(2) If in the opinion of the High Court, a returned candidate has been guilty by an agent other than his election agent, of any corrupt practice but the High Court] is satisfied--
(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent, of the candidate or his election agent;
(b) omitted 42 ML,J E.P.No.23 of 2019
(c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and
(d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the High Court may decide that the election of the returned candidate is not void."
79. For the purpose of present case, the case of the election petitioner must fall under Section 100(1)(b) or 100(1)(d)(iv). In pursuance of amendment to the Conduct of Election Rules, 1961, Rule 4-A was inserted which mandates requirement of disclosure of antecedents, assets and liabilities. However, there is no consequential amendment specifically making incorporating such a ground to declare the election as void.
80. Some of the judgments of the Apex Court say that non-disclosure amounts to undue influence as contemplated under Section 123 of the Act and some of the judgments say that it falls under non-compliance of requirement of Section 100(1)(d)(iv) of the Act.
81. The Apex Court in S.Rukmini Madegowda (cited 23rd supra), by referring to its earlier decision in Lok Prahari v. Union of 43 ML,J E.P.No.23 of 2019 India30, held that non-disclosure would amount to undue influence which in turn amounts to corrupt practice.
82. In this regard, it is relevant to refer to Section 123 of the Act which defines corrupt practice and it reads as under:
"Section 123: Corrupt practices:-
The following shall be deemed to be corrupt practices for the purposes of this Act:--
(1)......
(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person [with the consent of the candidate or his election agent], with the free exercise of any electoral right:
Provided that--
(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who--
(i) thereatens any candidate or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or
(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;30
W.P ©. No.784 of 2015, dated 16.02.2018 44 ML,J E.P.No.23 of 2019
(b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause.
(3) to (8) xxx
83. A reading of sub-section (2) of Section 123, undue influence has been stated in general. Proviso thereof contains certain presumptions relating to certain acts on the part of the candidate or his agent, or any other person with the consent of the candidate or his election agent. One of such acts is that threatening to candidate or any elector or any person in whom candidate or an elector is interested, with injury of any kind including social ostracism and excommunication or expulsion from any caste or community. The other acts of inducement or attempt to induce a candidate or an elector to believe that he or any person in whom he is interested will become or will be rendered an object of divine displeasure or spiritual censure. The allegations are falling under exceptions, then, the presumption is that there is undue influence. In any other case, the person who pleads corrupt practice by undue influence must establish the act of non-disclosure has directly or indirectly interfered or attempted to interfere with free exercise of any electoral right. Proviso (b) of section 123 of the Act says that declaration of public policy or promise of public action, or the mere 45 ML,J E.P.No.23 of 2019 exercise of a legal right without intention of interfere with an electoral right shall not be deemed to be interference.
84. Section 100 of the Act also makes distinction between the corrupt practices committed by returned candidate or his election agent or by any other person with the consent of such persons. Then on proof of such corrupt practice, the election of such candidate can be declared void. Section 100 (1)(d)(ii) of the Act also deals with corrupt practice which is less aggravated compared to corrupt practice under section 100(1)(b) of the Act. Under section 100(1)(d)(ii) of the Act, corrupt practice is committed in the interest of returned candidate by agent other than election agent and apart from proof of corrupt practice, it has to be proved that such corrupt practice materially affected the election of returned candidate. From proved facts, an inference of materially affected can be drawn.
85. Further, Section 100(2) of the Act carves out an exception that if the High Court is satisfied that no corrupt practice was committed at the election by the candidate or his election agent and every such corrupt practice was committed without consent of the candidate or his election agent, then the High Court may decide that the election of the returned candidate is not void. 46
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86. The word 'undue influence' was also found in Section 16 of the Indian Contract Act, 1872, which is also one of the grounds to vitiate the free consent of party to the contract. The presumption under Section 16 of the Indian Contract Act, 1872, with regard to undue influence is available. "Undue influence" generally means, one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.
87. Section 123 (2) of the Act defines undue influence in general and certain acts are presumed to constitute undue influence and such presumption is rebuttable. Non-disclosure of assets and liabilities are not acts and omissions falling under the proviso, so as to extend the presumption with regard to undue influence. This means, undue influence must be pleaded and proved by the party, who assails the election of the returned candidate.
88. Undue influence in the context of Section 123 (2) of the Act in general, required any direct or indirect interference or attempt to interfere by the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right. In the context of facts in the present case, non-disclosed information is car loan and withholding 47 ML,J E.P.No.23 of 2019 of such information must be proved to have created any direct or indirect interference with free exercise of any electoral right. This means such acts and omissions of withholding information must have elated the position of returned candidate to dominate the will of the electors and uses such position either directly or indirectly to obtain an unfair advantage by causing or attempt to cause interference in free exercise of any electoral right of voters.
89. In this regard, it is relevant to refer Section 83 of the Act, which reads as follows:
83. Contents of petition:-
(1) An election petition--
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:
Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition 48 ML,J E.P.No.23 of 2019
90. A reading of above provision, it is clear that whenever corrupt practice is pleaded, full particulars of such corrupt practice, date and place of such corrupt practice must be pleaded and separate affidavit has to be filed in this regard.
91. In the present case, the election petitioner did not plead corrupt practice and did not file any affidavit indicating allegation of corrupt practice. Further, petitioner has not placed any evidence to show how non-disclosure created undue influence and vitiated free exercise of electoral rights of any voters. This must be proved by placing some evidence. The presumption of undue influence is not available infavour of the election petitioner. Absolutely, evidence is lacking in the present case. There is no evidence from any voter who exercised his electoral right in favour of returned candidate to say that if such information was disclosed, he would not have casted his vote in favour of returned candidate.
92. Form-26 shows that the respondent disclosed criminal antecedent. Similarly, the respondent has also disclosed the vehicle which is in his name and ownership document (Registration Certificate) reflects endorsement of hypothecation to HDFC Bank. There is no evidence that there were any defaults in payment of loan amount. The evidence also shows that from the entire loan 49 ML,J E.P.No.23 of 2019 amount availed only three lakhs and odd was due by the time when the election affidavit was filed. Most of the loan amount was cleared from the State Bank of India (Hyderabad), Secretariat Branch, Hyderabad, of the respondent. Such account shows availability of Rs.28 lakhs and odd. In the background of such facts, non-disclosure of vehicle loan has not proved to have impacted free exercise of electoral rights by the voters. The respondent has secured the majority of 57,775 votes in spite of disclosure of criminal cases pending against him.
93. The evidence on record shows that the vehicle purchased by the respondent is hypothecated. Such endorsement was in existence when Form No.26 was filed. However, no bank officials of HDFC Bank were introduced in the evidence. No details as to how much loan amount was availed towards purchase and how much amount is still due were given. When the ownership of the vehicle is given in the affidavit, the ownership document itself indicates hypothecation of the vehicle meaning thereby existence of loan. No doubt, there is a reference of "nil" in the column meant for loan obtained by the respondent from banks or financial institutions. However, every act of undue influence is not corrupt practice. When such an act of undue influence which has a 50 ML,J E.P.No.23 of 2019 capacity to affect the free exercise of electoral rights of the voters, then only such act amounts corrupt practice. For proof of that, some pleading and evidence is required since the presumption is not available to the election petitioner. Absolutely, there is no evidence on record except evidence to prove non-disclosure. Therefore, I hold that there is no corrupt practice.
94. Non-compliance of requirement to furnish full details as required under Rule 4-A of the Conduct of Election Rules, 1961, amounts to one of the grounds referred to in Section 100 (1) (d) (iv) of the Act. To establish the grounds enumerated under Section 100 (1) (d) of the Act, apart from proving of grounds, there must be evidence to show that such an act materially affected the election of the returned candidate. Seeing from the votes polled to various candidates and majority obtained by the respondent, in spite of disclosure of criminal antecedents, non-compliance of Rule-4A, in the circumstances of this case has not materially affected the election of the returned candidate. The election petitioner failed to prove that non-compliance of Rule 4-A of the Conduct of Election Rules, 1961, has materially affected the election of the respondent. Therefore, the election of the respondent cannot be set aside on the ground of non-disclosure of loan availed by the respondent. 51
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95. In the result, the Election Petition is dismissed. There shall be no order as to costs. Miscellaneous petitions pending, if any, shall stand closed.
________________ JUSTICE M.LAXMAN Date: 10.10.2023 TJMR