Karnataka High Court
Smt. S. Rukmini Madegowda, vs The State Election Commission, on 26 May, 2021
Author: N S Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF MAY 2021
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
M.F.A.No.49/2021(MPA)
BETWEEN:
SMT. S.RUKMINI MADEGOWDA,
WIFE OF SRI. S. MADEGOWDA,
AGED ABOUT 43 YEARS,
RESIDING AT DOOR No.66,
RAMA MANDIRA ROAD,
YERAGANAHALLI, SHAKTHI NAGAR,
MYSORE - 570 029. ... APPELLANT
(BY SRI. ASHOK HARANAHALLI, SENIOR COUNSEL FOR
SRI. VINAYAKA.B, ADV.)
AND:
1. THE STATE ELECTION COMMISSION,
No.8, 1ST FLOOR,
K S C M F BUILDING ANNEX,
CUNNINGHAM ROAD,
VASANTHA NAGAR,
BENGALURU, KARNATAKA - 560 001.
REPRESENTED BY ITS COMMISSIONER.
2. THE DEPUTY COMMISSIONER
AND CHIEF ELECTION OFFICER,
MYSORE DIVISION, MYSORE - 570 001.
3. THE ELECTION OFFICER,
MYSORE CITY CORPORATION,
WARD No.36, YERAGANAHALLI,
AND CHIEF ADMINISTRATIVE OFFICER,
2
KAVERI NIRAVARI NIGAMA NIYAMITHA,
MYSORE - 570 001.
4. SMT. C.S.RAJANI ANNAIAH,
WIFE OF ANNAIAH,
AGED ABOUT 38 YEARS,
RESIDING AT DOOR No. 39,
12TH CROSS, OPP GOPIKA HIGHER
PRIMARY SCHOOL,
MYSORE BANNUR MAIN ROAD,
YERAGANAHALLI, SHAKTHI NAGAR POST,
MYSORE - 570 029.
5. SMT. GEETHA,
WIFE OF SRI G.V. MURALI,
AGED ABOUT 38 YEARS,
RESIDING AT DOOR NO.465/1,
5TH CROSS, JANATHA COLONY,
YERAGANAHALLI, MYSORE - 570 011.
... RESPONDENTS
(BY SMT. VAISHALI HEGDE, ADV., FOR R-1;
SRI. K.DILIP KUMAR HCGP FOR R-2 AND R-3 (MEMO
FOR APPEARANCE FILED IN COURT ON 09.04.2021 IS
KEPT BELOW);
SRI. MANMOHAN, P.N. ADV., FOR C/R-4;
SRI. CHANDRAKANTH.R. GOULAY, ADV., FOR R-5)
THIS APPEAL IS FILED UNDER SECTION 38 OF THE
KARNATAKA MUNICIPAL CORPORATION ACT 1976 AGAINST
THE JUDGMENT AND ORDER DATED 14.12.2020 PASSED IN
ELECTION PETITION No.4/2018 ON THE FILE OF THE
PRINCIPAL DISTRICT AND SESSIONS JUDGE MYSURU,
ALLOWING THE ELECTION PETITION FILED UNDER SECTION
34 OF KARNATAKA MUNICIPAL CORPORATION ACT 1976.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
1. This is an appeal preferred by the returned
candidate against the decision of the District Court by
which her election to the Mysore Municipal Corporation
(for short, 'the Corporation) as a Councilor representing
Ward No.36 - Yerganahalli has been set aside and the 4th
respondent has been declared to have been elected.
2. In the month of August 2018, elections were held
to the Corporation. In respect of Ward No.36 -
Yerganahalli, the appellant, the 4th respondent and the
5th respondent filed nominations. The appellant
represented the Janata Dal (S), while the 4th respondent
represented the Indian National Congress and the 5th
respondent represented the Bharatiya Janata Party
(BJP).
3. On 3rd September 2018, after counting of the
votes, results were declared and the appellant having
secured 3295 votes was declared duly elected.
4. The 4th respondent had secured 2902 votes and the
5th respondent had secured 356 votes.
5. On 1st October 2018, the 4th respondent fled an
Election Petition calling in question the election of the
appellant as the Councilor. The 4th respondent put forth
the following plea in her petition:
"4. The petitioner submits that,
subsequent to declaration of the results the
petitioner has approached the competent
authority and obtained the copies of the
nomination form along with the required
th
annexure submitted by the 4 Respondent at
the time of contesting the elections, upon
perusal of the nomination form along with the
annexure and more particularly the affidavit
required to be submitted to the Election Officer
as per the notification/orders issued by the 1st
Respondent bearing No:11 EUB 2002 dated 14-
07-2003 and No. 29 EUB 2018 dated
01.06.2018. A perusal of the affidavit reveals
that the 4th Respondent and her two children
are not Income Tax Assessees and do not hold
any PAN card. Furthermore, at para 8 of the
affidavit the 4th Respondent has sworn
regarding the particulars of the
movable/immovable assets held by the
husband of the 4th Respondent and her
dependents, while providing such information,
the 4th Respondent has erroneously provided
the name of her husband as "Nanjegowda"
instead of "S.Madegowda" and claimed to
possess the jewels worth Rs.1,50,000/-.
5. The petitioner further submits that
while providing information regarding the
immovable properties the 4th Respondent has
declared that neither she nor her husband
own/possess any immovable properties. This
information provided at para 8(B) of the
Affidavit is totally false, especially considering
the fact that the husband of the 4th respondent
owns the flowing properties/ vehicles/
businesses:
(a) Land bearing Sy.No.175/2 P-2-New
NO:175/3 measuring 10 and half guntas
situated at Kyathamaranahalli Village, Kasaba
Hobli, Mysore Taluk having purchased the
same vide sale deed dated 11-02-2011 duly
registered before the Sub-Registrar, Mysore
North, vide document No:20754 (the certified
copy of the sale deed, E.C. and RTC are
enclosed herewith).
(b) Site Bearing No.259 measuring 18.3
meters X 16.3 +15.80/2 meters situated at
Vidhyashankar Layout, Sathagalli village,
Kasaba Hobli, Mysore Taluk formed by Sri.
Vidhya Shankara HBCS having purchased the
same vide sale deed dated:19-06-2017 duly
registered before the Sub-Registrar, Mysore
North, vide document No:1739(the certified
copy of the sale deed and E.C. are enclosed
herewith)
acre situated at Hanchya village, Kasaba Hobli,
Mysore Taluk (the copy of the RTC is enclosed
herewith).
acre and 32 guntas situated at Hanchya village,
Kasaba Hobli, Mysore Taluk (the copy of the
RTC is enclosed herewith).
(e) Motor vehicle bearing Reg.No. KA-09-
P-2582,
(f) M/s S.B.M. Developers, Regd, Before
the Registrar of Firms and Society, Mysore
District vide Firm NO:MYS-F-278/2015/16,
dated 04-11-2015 having Sri.S.Madegowda as
one of its Partners.
6. The petitioner further submits that by
virtue of furnishing such false information in
the affidavit filed along with the nomination
form, the respondent No.4 has indulged in
corrupt practice so as to claim reservation
under BC-B category more particularly since a
candidate would be eligible to contest under
BC-B category only in the event of the 4th
Respondent and her husband not owning any
immovable property, as well as a PAN card. In
view of suppression of information regarding
the immovable properties held by the husband
of the 4th respondent, it is clear that the 4th
Respondent was not qualified to contest under
BC-B Category and hence, it is improper
acceptance of nomination of the 4th
respondent.
7. The petitioner submits that
immediately after ascertaining the false
information in the affidavit submitted by the 4th
respondent the petitioner lodged her written
protest with the second and third respondents
on 04-09-2018, which failed to evoke any
response.
8. The petitioner submits that,
subsequently the petitioner has also secured
the entire copy of the results declared for the
Election held for the Mysore City Corporation
2018 for Ward No:36-Yeraganahalli which was
reserved for Backward Class-B(Women), for
the elections held in the month of August 2018
and therefore it is apparent the 4th respondent
is guilty of corrupt practice and has been
wrongly declared as the winner, as the 4th
respondent is to be disqualified for the false
affidavit filed. Furthermore, the petitioner
having polled the second highest number of
votes of 2902 is entitled to be declared as the
elected candidate for ward No:36-
Yeraganahalli. Hence, this Petition.
9. The cause of action for the present
petition arose on 03-09-2018 when the election
results were declared pertaining to Election
held for the Mysore City Corporation 2018 for
Ward No:36-Yeraganahalli which was reserved
for Backward Class-B(Women), for the
Elections held in the month of August 2018
which is within the jurisdiction of this Hon'ble
Court."
6. This Election Petition was verified in the following
manner:
"VERIFICATION
Facts stated above from para 1 to 10 are all
true and correct and in token whereof I have
signed this petition on this 1st day of October at
Mysore."
7. The 4th respondent also filed an affidavit under
Order VI Rule 15 of the CPC in support of her pleadings,
which reads as follows:
"I, C.S.RajiniAnnaiah, the Petitioner in the
above case do hereby on solemn affirmation
make oath and state as follows:
1. I swear on oath that I have preferred
the present Petition as against the Respondents
challenging the declaration of the result
pertaining to the Election held for the Mysore
City corporation 2018 for Ward No:36-
Yeraganahalli which was reserved for Backward
class-B(Women), for the Election held in the
month of August 2018, the results of which
were declared on 03-09-2018. I am aware of
the facts and the averments made in the
petition may be read as part and parcel of this
affidavit.
2. I swear on oath that, the averments
made in para 2 to 8 of the petition are all true
and correct and prepared upon my instructions.
Hence, I am swearing to this affidavit.
I do swear in the name of God that this
is my name and signature and the contents of
this affidavit are true and correct."
8. An affidavit was also filed as required under Section
33 (5) of the Karnataka Municipal Corporation Act, 1976
(for short, hereinafter referred to as 'the KMC Act') in
support of her allegation of corrupt practice. The relevant
portion of which reads as follows:.
"I, C.S.RajiniAnnaiah, the Petitioner in the
above case do hereby on solemn affirmation
make oath and state as follows:
1. I swear on oath that I have preferred
the present Petition as against the Respondents
challenging the declaration of the result
pertaining the Election held for the Mysore City
corporation 2018 for Ward No:36-Yeraganahalli
which was reserved for Backward Class-
B(Women), for Elections held in the month of
August 2018, the results of which were declared
on 03-09-2018.
2. I swear on oath that, I have contested
as candidate in the Election held for the Mysore
City Corporation 2018 for Ward No:36 -
Yeraganahalli which was reserved for Backward
Class - B (Women), for the Elections held in the
month of August 2018, the results of which
were declared on 03-09-2018. I had contested
under the Backward Class-B (Women) as a
candidate for Congress Party, likewise the
Respondent No:4 had also contested as a
Candidate for Janatha Dal (Secular) Party and
the Respondent No.5 had also contested as a
Candidate for Bharathiya Janatha Party under
the same Category.
3. I swear on oath that, the counting of
votes was conducted and upon conclusion the
results were declared on 03-09-2018. The 4th
Respondent was declared as the winner having
polled 3295 votes, I came second having polled
2902 votes, the 4th Respondent had polled 356
votes. The 3rd Respondent being
Returning/Election Officer has issued form
th
No.24 declaring the 4 Respondent as elected
vide certificate dated:03-09-2018.
4. I swear on oath that, subsequent to
declaration of the results I have approached the
competent authority and obtained the copies of
the nomination form along with the required
annexure submitted by the 4th Respondent at
the time of contesting the elections, upon
perusal of the nomination form along with the
annexure and more particularly the affidavit
required to be submitted to the Election Officer
as per the notification/ orders issued by the 1st
Respondent bearing No.11 EUB 2002 dated 14-
07-2003 and No. 29 EUB 2018 dated 01-06-
2018. A Perusal of the affidavit reveals that the
4th Respondent and her two children are not
Income Tax Assessee and do not hold any PAN
card. Furthermore at para 8 of the affidavit, the
4th Respondent has sworn regarding the
particulars of the movable/immovable assets
held by the husband of the 4th respondent and
her dependents, while providing such
information, the 4th Respondent has erroneously
provided the name of her husband as
"Nanjegowda" instead of "S.Madegowda" and
claimed to possess the jewels worth
Rs.1,50,000/-.
5. I swear on oath that, while providing
information regarding the immovable properties
the 4th Respondent has declared that neither
she nor her husband own/possess any
immovable properties. This information
provided at para 8(b) of the Affidavit is totally
false, especially considering the fact that the
husband of the 4th Respondent owns the
following properties/vehicles/businesses:
(a) Land bearing Sy.No.175/2 P 2- New
No:175/3 measuring 10 and half guntas
situated at Kyathamaranahalli village, Kasaba
Hobli, Mysore Taluk having purchased the same
vide sale deed dated 11-02-2011 duly
registered before the Sub-Registrar, Mysore
North, vide document No:20754 (the certified
copy of the sale deed, E.C. and RTC are
enclosed herewith).
(b) Site bearing No:259 measuring 18.3
meters X 16.3 + 15.80/2 meters situated at
Vidhyashankar Layout, Sathagalli village,
Kasaba Hobli, Mysore Taluk formed by Sri.
Vidhya Shankara HBCS having purchased the
same vide sale deed dated 19-06-2017 duly
registered before the Sub-Registrar, Mysore
North vide document No:1739 (the certified
copy of the sale deed and E.C. are enclosed
herewith).
acre situated at Hanchya village, Kasaba Hobli,
Mysore Taluk (the copy of the RTC is enclosed
herewith).
acre and 32 guntas situated at Hanchya village,
Kasaba Hobli, Mysore Taluk (the copy of the
RTC is enclosed herewith).
(e) Motor vehicle bearing Reg.No:KA-09-P-
2582,
(f) M/s. S.B.M. Developers, Regd. Before
the registrar of Firms and Society, Mysore
District vide Firm No:MYS-F-278/2015-16,
dated 04-11-2015 having Sri. S.Madegowda as
one of its Partners.
6. I swear on oath that, by virtue of
furnishing such false information in the affidavit
filed along with the nomination form, the
Respondent No.4 has indulged in corrupt
practice so as to claim reservation under BC-B
category more particularly since a candidate
would be eligible to contest under BC-B
category only in the event of the 4th Respondent
and her husband not owning any immovable
property, as well as a PAN card. In view of
suppression of information regarding the
immovable properties held by the husband of
the 4th Respondent, it is clear that the 4th
Respondent was not qualified to contest under
BC-B Category and hence, it is improper
th
acceptance of nomination of the 4 Respondent.
7. I swear an oath that, immediately after
ascertaining the false information in the affidavit
submitted by the 4th Respondent I have lodged
my written protest with the second and third
Respondents on 04-09-2018, which failed to
evoke any response.
8. I swear on oath that, subsequently I
have also secured the entire copy of the results
declare for the Election held for the Mysore City
Corporation 2018 for Ward No:36 -
Yeraganahalli which was reserved for Backward
class-B (Women), for the Elections held in the
month of August 2018 and therefore it is
apparent the 4th Respondent is guilty of corrupt
practice and has been wrongly declared as the
winner, as the 4th Respondent is to be
disqualified for the false affidavit filed.
Furthermore, having polled the second highest
number of votes of 2902, I am entitled to be
declared as the elected candidate for ward
No:36 - Yeraganahalli. Hence, I am swearing
to this affidavit.
I do swear in the name of God that this
is my name and signature and the contents of
this affidavit are true and correct."
9. This petition was opposed by the appellant and also
by the 5th respondent by filing statement of objections.
10. In so far as the allegation regarding the incorrect
mentioning of the name of her husband and regarding
the properties owned by her husband, the appellant
responded as follows:
"4. Regarding the averments made in the
paragraph 4 of the petition, the 4th respondent
humbly submits that as a matter of fact, by
oversight the name of the son (i.e., Nanje
Gowda) of the 4th respondent has been
mentioned in that column instead of the name
of her husband (i.e., S.Made Gowda). In fact
at the beginning of that affidavit, the name of
the 4th respondent's husband has been
correctly mentioned.
5. Regarding the averments made in the
paragraph 5 of the petition, the 4th respondent
humbly submits that she had no knowledge
about her husband having the properties
mentioned in the said paragraph at the time of
swearing to that affidavit and hence she has
not mentioned the same in her said affidavit.
The non-mentioning of the said properties in
the said affidavit is unintentional and for the
said bonafide reason. Only after receiving the
summons/notice in this petition, the 4th
respondent verified about it with her husband
and came to know that her husband owns
those properties.
6. The averments made in paragraph 6
of the petition that by virtue of furnishing such
false information in the affidavit filed along
with the nomination form, the respondent
no.4 has indulged in corrupt practice so as to
claim reservation under BC-B Category more
particularly since a candidate would be eligible
to contest under BC-B Category only in the
event of the 4th respondent and her husband
not owning any immovable property, as well
as PAN card and that in view of suppression of
information regarding the immovable
properties held by the husband of the 4th
respondent it is clear that the 4th respondent
was not qualified to contest under BC-B
Category and hence, it is improper acceptance
of nomination of the 4th respondent are all
specifically denied as false, baseless and
concocted. The petitioner is put to strict proof
thereof. As a matter of fact and law the
criteria for contesting election under BC-B
Category is caste and income. Actually the 4th
respondent belongs to Vokkaliga caste and her
family income was within the prescribed limits
and hence she was issued BC-B Certificate
properly from the competent authority. In
fact the 4th respondent was eligible to contest
under BC-B Category and she has contested
under the said category and her nomination
had been properly accepted."
11. A trial was conducted, during the course of which,
the 4th respondent examined herself and got marked 13
documents, while the appellant examined herself and got
marked 1 document.
12. In the first instance, the District Court heard the
parties and proceeded to dismiss the Election Petition by
an order dated 16th April 2019.
13. The 4th respondent, being aggrieved, preferred an
appeal to this Court in MFA.No.4023/2019. This Court,
after hearing, proceeded to frame the following three
questions for consideration:
"a) Whether an application by a person
under the provisions of the Right to
Information Act, 2002 seeking details of
the Income Tax Returns of a returned
candidate, or the close relative/associate
of such a candidate, could be rejected
perforce on the ground that such details
would be exempted from disclosure under
the provisions of Section 8(1)(j) of the
Right to Information Act, 2002.
b) Whether the trial Court is justified in
dismissing the appellant's election petition
under Section 33 of the Karnataka
Municipal Corporations Act, 1971 on the
ground that the appellant has failed to
prove that the fourth respondent was
disqualified/ineligible to contest the
elections to Ward No.36 - Yeraganahalli,
Mysuru City Corporation as a Backward
class candidate.
c) Whether the trial Court is justified in its
finding that the appellant has failed to
prove that the fourth respondent has
indulged in corrupt practice in not
disclosing the Assets and Liabilities of her
husband and as such her election as the
returned candidate from Ward No.36 -
Yeraganahalli, Mysuru City Corporation is
void."
14. This Court by an order dated 28th April 2020, as
regards the first question, came to the conclusion that
the concerned public officer would be required to apply
the legislatively mandated test of proportionality
weighing the larger public interests in disclosing over the
invasion of privacy of the third party following the steps
prescribed in applying such steps keeping the factors to
be considered or not to be considered.
15. As far as the second question was concerned, this
Court came to the conclusion that there were no
pleadings to the effect that the husband of the appellant
was an Income Tax assessee and hence the appellant
could not have claimed the benefit of reservation and
consequentially the election could not be called in
question on that ground.
16. Thus, the challenge to the election of the appellant
on the ground that the appellant could not have availed
the benefit of reservation because her husband was an
Income Tax assessee was negatived by this Court.
17. This Court, however, as regards the third question,
as to whether the appellant had indulged in corrupt
practice in not disclosing the Assets and Liabilities of her
husband and as such her election be declared void,
stated as follows:
"47. The appellant has challenged
the election of the fourth respondent as the
returned candidate also on the ground that the
fourth respondent has deliberately suppressed
that her husband owns different immovable
properties in mentioning in the declaratory
affidavit, which is filed along with the
nomination in the prescribed form in
compliance with the order issued by the
Election Commission, that he does not own
any property. The appellant has listed the
agricultural lands/residential site owned/
purchased by the fourth respondent's husband
to substantiate her case. The appellant has
also furnished a certified copy of the
declaratory affidavit filed by the fourth
respondent along with the nomination form.
The appellant's contention is that the
deliberate failure to mention the details of the
properties owned by the husband, and the
error in mentioning the husband's name in
column No.8 of the declaratory affidavit
tantamount to corrupt practice as
contemplated under section 39 of the KMC
Act.
48. The fourth respondent has not
denied that she has stated in the declaratory
affidavit that her husband does not own
immovable/movable properties when in fact
he does own certain immovable/movable
properties. The fourth respondent contends
that the failure to mention the details of the
properties owned by her husband and the
declaration that he does not own
immovable/movable properties is a bona fide
and unintentional error and that such bona
fide and unintentional error would not amount
to corrupt practice as contemplated under the
provisions of the KMC Act.
49. The trial Court has opined in
paragraph 14 of the impugned judgment that
the crucial point that needs to be seriously
looked into and decided is, whether the fourth
respondent by furnishing false information in
the affidavit filed along with the nomination
form, has indulged in corrupt practice so as to
claim reservation under backward class-B
category. The trial Court in answer to this
question, has concluded that the fourth
respondent's failure to mention that her
husband owned immovable properties would
not amount to corrupt practice because the
Rules do not prescribe that non-disclosure o
such details would amount to corrupt practice
and in any event the properties owned by the
husband does not exceed the limit of 8
hectares notified by notification dated
16.10.1995. The trial Court has also opined
that the fact that the fourth respondent has
not disclosed that her husband owned
immovable properties, would not amount to
corrupt practice as contemplated under
Section 39 of the KMC Act.
50. The trial Court's conclusion is in
this regard are perfunctory and without
reference to the provisions of the KMC Act and
the authorities on the point. This Court is of
the considered opinion that for complete
adjudication of the lis, the trial Court should
have considered such question with reference
to the relevant provisions of the KMC Act and
the decisions of the Hon'ble Supreme Court in
Union of India v. Association for
Democratic Reforms, People's Union for
Civil Liberties (PUCL) and another v.
Union of India and in Lok Prahari vs.
Union of India and Others.
51. The Hon'ble Supreme Court in
its decision in Union of India v. Association
for Democratic Reforms directed the
Election Commission to call upon the
candidates seeking election to Parliament or
state legislature to file affidavit furnishing inter
alia the details of the assets (immovable,
movable, bank balance etcetera) of a
candidate as well as his/her spouse and that
of the dependants and also particulars of the
liabilities. Thereafter, the Representation of
the People (Amendment) Ordinance 2002 was
promulgated confining details to be furnished
in such affidavit only to certain criminal cases.
This ordinance was challenged in People's
Union for Civil Liberties v. Union of India
and others. When the matter was reserved
for judgment, the Ordinance was replaced by
the Representation of the People (Third
Amendment) Act, 2002. This Act was notified
to bring the changes in the ordinance with
retrospective effect. The Hon'ble Supreme
Court declared that the Section 33-B of the
Amendment Act, which abridged the directions
in Association for Democratic Reforms,
was unconstitutional and also declared that
the Election Commission's order insofar as it
related to disclosure of assets and liabilities in
the affidavits to be filed would hold good and
continue to be operative. Subsequently, the
Hon'ble Supreme Court in Lok Prahari vs.
Union of India and others has declared that
non-disclosure of assets and sources of
income of the candidates and their associates
would constitute corrupt practice falling under
the heading "Undue Influence" as defined
under Section 123(2) of the RTI Act.
52. The provisions of Section 35 of
the KMC Act lists the grounds on which courts
could declare the election of the returned
candidate to be void, and Section 35(1)(b)
mentions corrupt practice by returned
candidate or his election agent or by any other
person, either with the consent of a returned
candidate or his election agent, as one of the
grounds for declaring the election to be void.
The provisions of Section 39 of the KMC Act
stipulate that certain acts/ practices shall be
deemed to be corrupt practices, and Section
39(2) mentions 'undue influence' shall be
construed as corrupt practice. This provision
further stipulates that 'undue influence' shall
be as defined under Section 123(2) of the RP
Act. Further, the publication of any statement
of a fact which is false and relates to the
candidature could also be corrupt practice
given the language of Section 39(5) of the
KMC Act.
53. If the provisions of the KMC Act
stipulate that the definition of undue influence
under Section 123(2) of the RP Act would
apply even in election petitions filed under the
KMC Act challenging the election of a returned
candidate, and the Hon'ble Supreme Court has
declared that non-disclosure of assets and
liabilities by a candidate would amount to
undue influence under Section 123(2) of the
RP Act, this Court is of the considered view
that temporary injunction was incumbent upon
the trial Court to consider the question
accordingly. The trial court has seriously
erred in concluding that the Rules do not
stipulate that non-disclosure of assets and
liabilities would amount to corrupt practice
and that only if there is failure to disclose
details of certain criminal cases, it would
amount to corrupt practice.
54. As the trial court has not at all
considered the lis in the light of the law that
could apply in the background of the pleadings
and evidence on record, this Court is of the
considered opinion that the impugned
judgment requires to be set-aside and the
election petition restored to the board of the
trial court for reconsideration on the question,
whether the fourth respondent has indulged in
corrupt practice as contemplated under
Section 39 of the KMC Act in mentioning that
he did not own immovable/movable
properties. Further, in the interest of justice it
would also be just and reasonable to direct the
parties to appear before the trial Court without
further notice of first hearing on 15.06.2020
while calling upon the trial Court to dispose of
the election petition as expeditiously as
possible but within an outer limit of six months
from 15.06.2020. For the foregoing, the
following:
ORDER
a. The appeal is allowed, and the
judgment dated:16.04.2019 in
Election Petition No.4/2018 on the
file of the Principal District and
Sessions Judge, Mysuru is set-
aside, and the election petition is
remanded for reconsideration in
accordance with the observation by
this Court.
b. The parties to appear before the
Principal District and Sessions
Judge, Mysuru without further
notice of first hearing on
15.06.2020, and the Principal
District and Sessions Judge,
Mysruru is called upon to dispose of
the election Petition as
expeditiously as possible but within
an outer limit of six months from
15.06.2020."
18. Thus, this Court restored the Election Petition on
the board of the Trial Court to consider the question as
to whether the appellant had indulged in corrupt practice
as contemplated under Section 39 of the KMC Act in
mentioning that she did not own movable/immovable
properties.
19. This order directing the District Court to reconsider
the above question was not challenged by the appellant
and this order has thus become final.
20. On remand, the District Court, after hearing the
parties, has come to the conclusion that the 4th
respondent had proved that the appellant had
deliberately suppressed the material information in the
affidavit along with the nomination form and had not
disclosed the properties/assets of her husband as
required under the provisions of the Representation of
the People Act, 1950 (for short, hereinafter referred to
as 'the RP Act') and the election of the appellant was in
violation of Sections 35 and 39 of the KMC Act.
21. The District Court has also come to the conclusion
that the outcome of the elections had been materially
affected and the appellant's election was liable to be held
as void and the 4th respondent was entitled to be
declared as the returned candidate.
22. The appellant, being aggrieved by this order setting
aside her election, is in appeal.
23. Sri. Ashok Haranahalli, learned Senior Counsel on
behalf of the appellant put forth the following
contentions:
a. The Election Petition was not verified in the
manner prescribed and the petition was
therefore liable to be rejected at the very
threshold itself.
b. The affidavit filed in support of the
allegation of corrupt practice was
completely defective and could not be
construed as an affidavit in support of an
allegation of corrupt practice and since it
was no affidavit in the eye of law, the
petition ought not to have been entertained
by the District Court.
c. There was no requirement under the KMC
Act or the Rules mandating the disclosure
of assets and liabilities of a spouse and
hence the non disclosure of assets and
liabilities of the appellant's husband could
not have been considered as a corrupt
practice so as to set aside the appellant's
election.
d. The election petition did not contain the
material facts necessary to constitute a
corrupt practice. It was nowhere pleaded
that the non disclosure of assets and
liabilities amounted to undue influence and
since the allegation of corrupt practice was
akin to a criminal charge, the setting aside
of an election in the absence of material
facts being pleaded could not be sustained.
e. The basic allegation of the 4th respondent
was that the nomination paper had been
improperly accepted in as much as the
appellant could not have contested in a
seat reserved for BC-B category and since
there was no plea or proof that the election
had been materially affected by the said
improper acceptance, the order setting
aside the election was unsustainable.
f. It was settled law that the result of an
election should not be lightly interfered
with and though the filing of a defective
petition and the non filing of an affidavit
had been established beyond doubt, the
District Court had erred in ignoring the
same.
g. In an election involving more than two
candidates, it was settled law that when an
election was set aside, one of the other
contesting candidates could not be declared
to be elected as the returned candidate and
in the instant case, though three
candidates had contested the elections, the
District Court had declared the 4th
respondent as the returned candidate and
this was wholly impermissible.
h. This Court while remanding the matter in
the earlier round had not restricted the
scope of remand and it was an open
remand and therefore, it was certainly
open to the appellant to put forth the plea
that the petition did not contain material
facts and that the verification and affidavit
was not in conformity with the law. These
questions relating to pleadings, being
essentially, questions of law, could be
raised even in the absence of a specific
plea.
i. In support of his submissions, the learned
counsel relied upon the following decisions:
(1) V. Narayanaswamy Vs CP
Thirunavukkarasu - 2000(2) SCC 294
(2) Sri A Manu Vs Sri Prajwal Revanna @
Prajwal R & Others - ILR 2020 KAR 1793
(3) Ravindra Singh Vs Janmeja Singh & Others
- 2000 (8) SCC 191
(4) R.P.Modidutty Vs P.T.Kunju Mohammad &
Another - 2000 (1) SCC 481
(5) B.R.Patil Vs Rajeev Chandrashekar &
Others - ILR 2007 KAR 317
(6) C.P. John Vs Babu M Palissesy & Others -
2014 (10) SCC 547
(7) Prakash Khandre Vs Dr. Vijay Kumar
Khandre & Others - 2002 (5) SCC 568
(8) Vishwanath Reddy Vs Konappa Rudrappa
Nadgouda and Another - AIR 1969 SC 604
(9) M Karunanidhi Vs Dr. H V Hande & Others
- 1983 (2) SCC 473
(10) Shivakumar Somalingappa Malagali Vs
Malagi Shivaputrappa Channabasappa &
Others - 2000 SCC Online Kar 580
(11) Lok Prahari Vs Union of India & Others -
2018(4) SCC 699
(12) Krishnamoorthy Vs Shivakumar & Others -
2015(3) SCC 467
(13) Sanjay Brijkishorilal Nirupam Vs Gopal
Chinayya Shetty & Others - 2018 SCC
Online Bom 5638
(14) Orient Papers and Industries Ltd., and
Another v. Tahsildar-Cum-Irrigation Officer
and Others - 1998(7) SCC 303
(15) J.P.Builders and Another v. A. Ramdas Rao
and Another - 2011(1) SCC 429
(16) Rajeswari Amma and Another v. Joseph
and Another - 1995(2) SCC 159
(17) Baldev Singh Mann v. Surjit Singh Dhiman
- 2009(1) SCC 633
(19) Union of India v. R.A.Yadav and Another -
2000(10) SCC 278
(20) Joseph M. Puthussery v. T.S. John and
Others - 2011(1) SCC 503
(21) Samant N.Balakrishna v. George Fernandez
- 1969 (3) SCC 238
(22) Markio Tado v. Takam Sorang and Others
- (2012) 3 SCC 236
(23) Sunil Kumar Kori v. Gopal Das Kabra -
(2016) 10 SCC 467
(24) Mercykutty Amma v. Kadavoor Sivadasan
& Another - (2004) 2 SCC 217
(25) Union of India v. Association for
Democratic Reforms and Another - (2002)
5 SCC 294
(26) Muniraju Gowda P.M. v. Munirathna and
Others - (2020) 10 SCC 192
(27) People's Union of Civil Liberties v. Union of
India and Another - (2003) 4 SCC 399
(28) Ram Sukh v. Dinesh Aggarwal - (2009) 10
SCC 541
(29) Mayanglambam Rameshwar Singh v.
Yengkhom Surchandra Singh and Another -
2020 SCC Online Mani 312
24. Sri. Manmohan, learned counsel appearing on
behalf of the 4th respondent-election petitioner put forth
the following contentions:
a. The plea of a defective verification or the
absence of an affidavit in a particular form
was neither pleaded, nor argued before the
District Court and hence, the said contention
could not be put forth in appeal.
b. The argument that the need for a proper
verification and a proper affidavit to be filed
was to basically hold the election petitioner
accountable to his assertions and to prevent
reckless allegations being made. In the
instant case, since the allegation of non
disclosure of assets and liabilities was
categorically admitted by the appellant, the
argument of a defective verification or
affidavit would be of no consequence,
especially, when admitted facts are not
required to be proved.
c. It had already been held by this Court in the
earlier round of litigation i.e., in MFA.
No.4023/2019 that the District Court was
required to reconsider the question as to
whether the appellant had indulged in
corrupt practice by not mentioning the
appellant did not own movable/immovable
properties and this order having been
accepted by the appellant, no contention
could be raised regarding the absence of a
plea or a defective verification and a
defective affidavit.
d. The State Election Commission in exercise of
its constitutional power under Article 243 ZA
of the Constitution of India had mandated
the filing of an affidavit requiring the
disclosure of assets and liabilities and this
was thus an absolute requirement and the
Supreme Court had also clearly laid down
the law that non disclosure of assets and
liabilities amounted to undue influence, a
corrupt practice under the Act. Since it was
an admitted fact that the assets and
liabilities were not disclosed, the corrupt
practice itself stood admitted and the District
Court was bound to set aside the election.
e. In support of his submissions, he relied upon
the following decisions:
(1) GagaiVinayagar Temple and ors. V.
Meenakshi Ammal and Ors. - (2009) 9
SCC 757
(2) Premier Tyres Limited v. Kerala State
Road Transport Corporation - 1993 Supp
(2) SCC 146
(3) Dattatreya v. Srinivasa Bhat Thimmanna -
ILR 1985 KAR 1946
(4) JasrajInder Singh v. Hemraj Multanchand
- (1977) 2 SCC 155
(5) Union of India v. Association for
Democratic Reforms and Anr; - (2002) 5
SCC 294
(6) Lok Prahari v. Union of India and Ors.; -
(2018) 4 SCC 699
(7) Mahboob Sahab v. Syed Ismail - (1995) 3
SCC 693
(8) Balwan Singh v. Prakash Chand and Ors;
(1976) 2 SCC 440
(9) AyanurManjunatha v. S.Bangarappa and
Ors.; - ILR 2001 KAR 3043
(10) PonnalaLakshmaiah v. Kommuri Pratap
Reddy and Ors.; (2012) 7 SCC 788
25. I have considered the submissions of the learned
counsel for the respective parties and also perused the
material produced before this Court and also the entire
Trial Court records.
26. In my view, the following questions arise for
consideration in this appeal:
(i) Whether the non disclosure of
assets and liabilities of the appellant's
husband in the form of an affidavit along
with the nomination paper amounts to a
corrupt practice as contemplated under
Section 39 of the KMC Act?
(ii) Whether the Election Petition
contained a plea regarding corrupt practice
and whether it was properly verified and
supported with an affidavit as prescribed?
(iii) Whether the District Court could
have set aside the appellant's election and
declared the 4th respondent as the
returned candidate?
27. By the 74th amendment to the Constitution of India,
Part IXA relating to Municipalities was inserted thereby
making it a constitutional requirement to constitute
municipalities in the form of a Nagar Panchayath for a
transitional area, a Municipal Council for a smaller urban
area and a Municipal Corporation for a larger urban area.
Article 243ZA (1) of Part IXA of the Constitution of India
mandated that the superintendence, direction and
control of the preparation of electoral rolls and conduct
of elections to Municipalities would vest with the State
Election Commission. Article 243ZA (2) of the
Constitution of India stated that the States were
permitted to make a law relating to the elections of the
Municipalities.
28. The State Legislature of Karnataka had already
enacted the KMC Act, 1976. This statute was amended
to bring it in conformity with the 74th amendment by Act
No.35 of 1994.
29. Section 55 of the KMC Act was also amended under
Act No.35 of 1994 and Sub-section (1) of the said
section, post amendment, declared that the
superintendence, direction and control of the preparation
of electoral rolls for, and conduct of elections to the
Corporations would vest with the State Election
Commission. Sub-section (2) of the said Section enabled
the State to make rules for the purposes mentioned
therein, subject, however, to Sub-section (1).
30. The State Government in exercise of the powers
under Section 55 (2) of the KMC Act had framed the
Karnataka Municipal Corporations (Election) Rules, 1979
(for short, '1979 Rules') which have been also amended
from time to time. Rule 12 of the 1979 Rules states that
every candidate is required to present his nomination
paper in Form No.2 along with recent passport size
photographs and nomination papers was required to be
signed by the candidate and six electors of the ward as
proposers. If the candidate was set up by a recognized
political party, the nomination is deemed to be duly
nominated if the nomination papers are signed by just
one elector of the ward as proposer.
31. Form No.2 of the Rules only requires the details of
the proposers who were nominating the candidate and
the details and also the assent of the candidate to the
nomination and a declaration regarding his age, gender,
details of his caste, the name of the party setting him up
and if not, his symbol of preference.
32. The said Form No.2 does not require any affidavit
to be filed regarding the assets and liabilities of the
candidate or his/her spouse. Thus, the Rules, as such, do
not require the filing of an affidavit regarding the
disclosure of assets and liabilities.
33. The argument of the learned Senior Counsel,
Sri Ashok Haranahalli in the matter of filing an affidavit,
at first glance, would therefore appear to be correct.
34. However, as stated in Article 243ZA of the
Constitution of India and reiterated in Section 55 (1) of
the KMC Act, the superintendence and control of
elections vest with the State Election Commission. The
Election Commission in exercise of this constitutional
power and as recognized by the statute issued a
notification dated 14th July 2003.
35. In the preamble to the said notification, it has been
stated that in order to implement the judgment of the
Apex Court rendered in the case of Union of India vs.
Association for Democratic Reforms & Another
(Civil Appeal No. 7178/2001) had passed an order on 2nd
May, 2002 reported in (2002) 5 SCC 294 and which
was reiterated in the case of People's Union for Civil
Liberties (PUCL) & Another vs. Union of India &
Another reported in (2003) 4 SCC 399, a judgment
dated 13th March, 2003 wherein the Election Commission
was directed to call for information on affidavit by issuing
an order under Article 324 of the Constitution of India
from each candidate seeking election to Parliament or
the State Legislature as a necessary part of the
nomination form and furnish information regarding the
past criminal record of the candidate and regarding the
pendency of criminal cases at the time of filing of the
nomination form.
36. In addition to the criminal antecedents, the Election
Commission was also directed to call for information
regarding the assets (movable, immovable, bank
balances) of a candidate and his/her spouse and that of
the dependants and also the liabilities, if any of the
candidate with particular reference to public financial
institution dues and government dues. Lastly, the
candidate was required to be called upon to furnish
information regarding his educational qualifications.
37. The said direction issued by the Apex Court, though
was in respect of elections to the Parliament and the
State Legislature, the Election Commission, in exercise of
its constitutional power conferred under Articles 243K
and 243ZA of the Constitution of India, issued a
notification calling upon the candidates to furnish the
information regarding five material particulars that the
Apex Court had ordered to be called for from the
candidates in the form of an affidavit in respect of an
election to the Panchayaths and Municipalities also.
38. Thus, though the KMC Act and the Rules did not
mandate the furnishing of information in respect of an
election to a Municipality or a Panchayath, the Election
Commission in exercise of its constitutional power
mandated the filing of an affidavit containing the
requisite information including that of furnishing the list
of assets and liabilities of a candidate.
39. This power of the Election Commission, being a
constitutional power, would therefore have to prevail
especially when it was in respect of a matter which was
not covered under the legislation made by the State.
40. In other words, even though the Rules did not
mandate the furnishing of particulars, by reason of the
notification dated 14th July 2003, it became imperative
for every candidate to furnish full and complete
information regarding the five matters stated by the
Apex Court.
41. Thus, by virtue of this notification, the argument of
the learned Senior Counsel that it was not obligatory on
the part of the candidate to furnish information regarding
the assets and liabilities of the candidate and her spouse
cannot be accepted.
42. It may also be pertinent to state here that the said
notification also prescribed the format of the affidavit by
way of an annexure to the notification. The first part of
the affidavit required the furnishing of information
regarding the criminal record of the candidate, while Part
A of the other part dealt with the details of moveable
assets and Part B dealt with details of immovable assets
and the details of liabilities and also the educational
qualifications.
43. The Election Commission, on 1st June, 2018 i.e.,
about two months prior to the election in question, also
issued a notification by which it sought to add certain
further details in the format of the affidavit and a
declaration in the affidavit. Since this notification was a
continuation of the notification dated 14th July 2003,
every candidate was obliged, in law, to furnish the
affidavit in the manner prescribed in order to enable him
to contest the election.
44. In the instant case, the appellant filed an affidavit
as required under the said notification. In fact, in the
said affidavit, the reference to the aforementioned
notifications dated 14th July, 2003 and 1st June, 2018 is
clearly spelt out at the very beginning of the affidavit
thereby indicating that the affidavit was being filed in
compliance of the diktat of the Election Commission.
45. As regards the assets owned by the appellant and
her spouse which was required to be spelt out in Part B
of the affidavit, the appellant stated as follows:
"8. £Á£ÀÄ F PɼÀPÀAqÀAvÉ £À£Àß, ¥Àwß/¥ÀwAiÀÄ ªÀÄvÀÄÛ
£À£ÀߣÀÄß CªÀ®A©¹gÀĪÀªÀgÀ D¹ÛAiÀÄ/D¹ÛUÀ¼À (CªÀ®A©vÀgÀÄ
JAzÀgÉ C¨sÀåyðAiÀÄ DzÁAiÀÄzÀ ªÉÄÃ¯É §ºÀ¼ÀµÄÀ Ö
CªÀ®A©vÀgÁzÀªÀåQÛ/ªÀåQÛUÀ¼ÀÄGzÁBªÀÄUÀ/ªÀÄUÀ¼ÀÄ/vÀAzÉ/vÁ¬Ä/
CvÉÛ/ªÀiÁªÀ/CtÚ/vÀªÀÄä/CPÀÌ/vÀAV ªÀÄÄAvÁzÀªÀgÀÄ)(agÁ¹Û,
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J. ZÀgÁ¹ÛUÀ¼À «ªÀgÀ (Movable Properties):
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H) MqÀªÉUÀ¼ÀÄ (vÀÆPÀ ªÀÄvÀÄÛ ªÀiË®åzÀ «ªÀgÀuÉ ¤ÃqÀĪÀÅzÀÄ) - 50 UÁæA
- gÀÆ.1,50,000/-
I) DzÁAiÀÄ §gÀĪÀAvÀºÀ/ªÀiË®åPÉèêÀÄÄ ªÀiÁqÀ§ºÀÄzÁzÀ EvÀgÉ D¹Û. -E®è
n¥Ààt : ¨ÁAqÀμÀ/ µÉÃgÀÄUÀ¼À r¨ÉAZÀgÀÄUÀ¼À ¨É¯É £ÀªÀÄÆ¢¸ÀĪÁUÀ µÉÃgÀÄ
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EvÁå¢UÀ¼À §UÉÎ ªÀÄÄR ¨É¯ÉAiÀÄ£ÀÄß £ÀªÀÄÆ¢¹gÀÄvÉÛ.
©. ¹ÞgÁ¹ÛUÀ¼À «ªÀgÀ (Immovable Properties):
(dAn ºÉ¸Àj£À°ègÀĪÀ ¹ÜgÁ¹ÛUÀ¼À «¹ÛÃtð ºÁUÀÆ dAn MqÉvÀ£ÀzÀ
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C) ªÀåªÀ¸ÁAiÀÄzÀ d«ÄãÀÄ - E®è
EgÀĪÀ ¸ÀܼÀ
¸ÀªÉð £ÀA§gÀÄUÀ¼ÀÄ
«¹ÛÃtð (MlÄÖ «¹ÛÃtð
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EgÀĪÀ ¸ÀܼÀ
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«¹ÛÃtð (MlÄÖ «¹ÛÃtð)
E) PÀlÖqÀUÀ¼ÀÄ (ªÁtÂdå ªÀÄvÀÄÛ ªÁ¸ÉÆÃ¥ÀAiÉÆÃUÀ) -E®è
EgÀĪÀ ¸ÀܼÀ
¸ÀªÉð / ªÀÄ£É £ÀA§gÀÄUÀ¼ÀÄ
«¹ÛÃtð (MlÄÖ «¹ÛÃtð/ MlÄÖ C¼ÀvÉ)
EwÛÃa£À ªÀiÁgÀÄPÀmÉÖ ¨É¯É
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EgÀĪÀ ¸ÀܼÀ
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«¹ÛÃtð (MlÄÖ «¹ÛÃtð/ MlÄÖ C¼ÀvÉ)
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G) EvÀgÉ DzÁAiÀÄ §gÀĪÀ D¹Û JzÀÝ°è -E®è"
46. As could be seen from this portion of the affidavit,
the appellant stated that neither she nor her husband
owned any immovable assets. Thus, the fact that the
appellant declared in her affidavit that neither she nor
her husband had any immovable properties cannot be in
dispute.
47. The question that follows is whether a plea was
made in the election petition that a false affidavit was
filed regarding the assets and liabilities of the appellant's
husband, which amounted to a corrupt practice and
whether this was supported by an affidavit as envisaged
in the proviso to Section 33 of the KMC Act.
48. Sri Manmohan, learned Counsel for the 4th
respondent, contended that this question of not raising a
plea could not be raised in the appeal when no such
objection was taken up in the District Court. He
submitted that since this Court had, while remanding the
matter, clearly held that it was necessary for the District
Court to reconsider the question regarding corrupt
practice in the light of the pleadings, it was unavailable
for the appellant to contend to the contrary.
49. He also submitted that there was a distinct plea
regarding the filing of a false affidavit and there was also
an affidavit filed in support of the allegations thus
satisfying the legal requirement. He submitted that since
this allegation was admitted by the appellant in her
objections, the question of a defective plea or defective
affidavit was redundant and futile.
50. Sri Ashok Haranahalli, learned Senior Counsel
appearing for the appellant, on the other hand,
contended there was no plea in the petition that the non
disclosure of assets and liabilities amounted to an undue
influence and thus there was a corrupt practice by the
appellant and therefore, the petition was liable to be
thrown out. He submitted that the requirement of a plea,
properly verified and duly supported by an affidavit,
would be the basic ingredient to be considered when the
aspect of corrupt practice was being ascertained and this
question being a pure question of law, could be raised at
anytime and even in appeal. He submitted that the order
of remand did not preclude the appellant from raising
this plea.
51. Though the contention of Sri Manmohan, learned
counsel for the 4th respondent that the question as to
whether the appellant can raise the question of a
defective or non-existent plea or a defective verification
and affidavit cannot now be raised may have substance
in it, but in the light of the order passed in the earlier
round of litigation in MFA.No.4023/2019, in my view, it
would be better to examine this question on its merits in
order to ensure legality of the proceedings.
52. Section 33 (4) of the KMC Act states that an
election petition should contain a concise statement of
the material facts on which the petitioner relies and it
shall set forth full particulars of any corrupt practice that
the petitioner alleges including the details of the corrupt
practice is required to be stated. The petition is also
required to be signed by the petitioner and verified in the
manner laid under Order VI Rule 15 of CPC. Further, as
per the proviso, when a corrupt practice is alleged by the
petitioner, an affidavit in the prescribed form in support
of the allegation and the full particulars is required to be
filed.
53. Thus, the requirement of the law is that the petition
should contain a concise statement of the material facts
and full particulars of any corrupt practice are required
to be stated.
54. While dealing with a case arising out of the RP Act,
a three Judge Bench of the Apex court in the case of
Harkirat Singh vs. Amrinder Singh - (2005) 13 SCC
511, after reviewing a plethora of decisions held as
follows:
"48. The expression "material facts"
has neither been defined in the Act nor in the
Code. According to the dictionary meaning,
"material" means "fundamental", "vital",
"basic", "cardinal", "central", "crucial",
"decisive", "essential", "pivotal",
"indispensable", "elementary" or "primary".
[Burton's Legal Thesaurus (3rdEdn.), p.349].
The phrase "material facts", therefore, may be
said to be those facts upon which a party relies
for its claim or defence. In other words,
"material facts" are facts upon which the
plaintiff's cause of action or the defendant's
defence depends. What particulars could be
said to be "material facts" would depend upon
the facts of each case and no rule of universal
application can be laid down. It is, however,
absolutely essential that all basic and primary
facts which must be proved at the trial by the
party to establish the existence of a cause of
action or defence are material facts and must
be stated in the pleading by the party.
xxx xxx xxx
51. A distinction between "material
facts" and "particulars", however, must not be
overlooked. "Material facts" are primary or
basic facts which must be pleaded by the
plaintiff or by the defendant in support of the
case set up by him either to prove his cause of
action or defence. "Particulars", on the other
hand, are details in support of material facts
pleaded by the party. They amplify, refine and
embellish material facts by giving distinctive
touch to the basic contours of a picture already
drawn so as to make it full, more clear and
more informative. "Particulars" thus ensure
conduct of fair trial and would not take the
opposite party by surprise.
52. All "material facts" must be
pleaded by the party in support of the case set
up by him. Since the object and purpose is to
enable the opposite party to know the case he
has to meet with, in the absence of pleading, a
party cannot be allowed to lead evidence.
Failure to state even a single material fact,
hence, will entail dismissal of the suit or
petition. Particulars on the other hand, are the
details of the case which is in the nature of
evidence a party would be leading at the time
of trial.
xxx xxx xxx
60. The Court stated that rules of
pleadings are intended as aids for a fair trial
and for reaching a just decision. An action at
law should not be equated with a game of
chess. Provisions of law are not mere formulae
to be observed as rituals. Beneath the words
of a provision of law, generally speaking there
lies a juristic principle. It is the duty of the
Court to ascertain that principle and implement
it."
55. Another three Judge Bench of the Apex Court in the
case of Madiraju Venkata Ramana Raju vs.
Peddireddigari Ramachandra Reddy & Others -
(2018) 14 SCC 1, while approving the decision in
Harikirat Singh (supra) has also stated as follows:
"38. It is well settled that the election
petition will have to be read as a whole and
cannot be dissected sentence-wise or
paragraph-wise to rule that the same does not
disclose a cause of action. Cause of action
embodies a bundle of facts which may be
necessary for the plaintiffs to prove in order to
get a relief from the court. The reliefs claimed
by the appellant are founded on grounds inter
alia ascribable to Section 100(1)(d)(i). Further
relief has been claimed to declare the appellant
as having been elected under Section 101 of
the 1951 Act. The cause of action for filing the
election petition, therefore, was perceptibly in
reference to the material facts depicting that
the nomination form of Respondent 1 was
improperly accepted by the Returning Officer.
39. On reading the election petition
as a whole, we have no hesitation in taking a
view that the High Court misdirected itself in
concluding that the election petition did not
disclose any cause of action with or without
Paras 2 and 9 to 11 of the election petition.
Indeed, the pleadings of the election petition
should be precise and clear containing all the
necessary details and particulars as required by
law. "Material facts" would mean all the basic
facts constituting the ingredients of the
grounds stated in the election petition in the
context of relief to declare the election to be
void. It is well established that in an election
petition, whether a particular fact is material or
not and as such required to be pleaded, is a
question which depends on the nature of the
grounds relied upon and the special
circumstances of the case. Particulars, on the
other hand, are the details of the case set up
by the party. The distinction between
"material facts" and "full particulars" has been
delineated in Mohan Rawale v. Damodar
Tatyaba. This judgment has been adverted to
in the reported decision relied on by the
parties. The Court noted thus SCC pp.397-99,
paras 10-18)
"10. We may take up the last facet
first. As Chitty, J. observed, "There is
some difficulty in affixing a precise
meaning to" the expression "discloses no
reasonable cause of action or defence".
He said: "In point of law ...every cause of
action is reasonable one." (See Republic
of Peru v. Peruvian Guano Co.) A
reasonable cause of action is said to
mean a cause of action with some
chances of success when only the
allegations in the pleading are
considered. But so long as the claim
discloses some cause of action or raises
some questions fit to be decided by a
judge, the mere fact that the case is
weak and not likely to succeed is no
ground for striking it out. The
implications of the liability of the
pleadings to be struck out on the ground
that it discloses no reasonable cause of
action are quite often more known than
clearly understood. It does introduce
another special demurrer in a new shape.
The failure of the pleadings to disclose a
reasonable cause of action is distinct from
the absence of full particulars. The
distinctions among the ideas of the
"grounds" in Section 81(1); of "material
facts" in Section 83(1)(a) and of "full
particulars" in Section 83(1)(b) are
obvious. The provisions of Section
83(1)(a) and (b) are in the familiar
pattern of Order 6 Rules 2 and 4 and
Order 7 Rule 1(e) of the Code of Civil
Procedure. There is a distinction amongst
the "grounds" in Section 81(1); the
"material facts" in Section 83(1)1(a) and
"full particulars" in Section 83(1)(b).
11. Referring to the importance of
pleadings a learned author says:
'Pleadings do not only define the
issues between the parties for the final
decision of the court at the trial, they
manifest and exert their importance
throughout the whole process of the
litigation. ...They show on their face
whether a reasonable cause of action or
defence is disclosed. They provide a
guide for the proper mode of trial and
particularly for the trial of preliminary
issues of law or fact. They demonstrate
upon which party the burden of proof lies,
and who has the right to open the case.
They act as a measure for comparing the
evidence of a party with the case which
he has pleaded. They determine the
range of the admissible evidence which
the parties should be prepared to adduce
at the trial. They delimit the relief which
the court can award. ...'
[See: Jacob: "The Present Importance of
Pleadings" (1960) Current Legal Problems, at
pp.175-76]
12. Further, the distinction
between "material facts" and "full
particulars" is one of degree. The lines of
distinction are not sharp "Material facts"
are those which a party relies upon and
which, if he does not prove, he fails at
the time.
13. In Bruce v. Odhams Press Ltd.
Scott L.J. said: "The word 'material'
means necessary for the purpose of
formulating a complete cause of action;
and if any one 'material' statement is
omitted, the statement of claim is bad."
The purpose of "material particulars" is in
the context of the need to give the
opponent sufficient details of the charge
set up against him and to give him a
reasonable opportunity.
14. Halsbury refers to the function
of particulars thus:
'The function of particulars is to carry
into operation the overriding principle
that the litigation between the parties,
and particularly the trial, should be
conducted fairly, openly and without
surprises, and incidentally to reduce
costs. This function has been variously
stated, namely either to limit the
generality of the allegations in the
pleadings, or to define the issues which
have to be tried and for which discovery
is required.'
[See: Pleadings Vol.36, para 38]
15. In Bullen and Leake and
Jacob's "Precedents of Pleadings" 1975
Edn. at p.112 it is stated"
"The function of particulars is to carry
into operation the overriding principle
that the litigation between the parties,
and particularly the trial, should be
conducted fairly, openly and without
surprises and incidentally to save costs.
The object of particulars is to "open up"
the case of the opposite party and to
compel him to reveal as much as possible
what is going to be proved at the trial,
whereas, as Cotton L.J. has sad, 'the old
system of pleading at common law was to
conceal as much as possible what was
going to be proved at the trial.'
16. The distinction between
"material facts" and "Particulars" which
together constitute the facts to be proved
- or the facta probanda- on the one hand
and the evidence by which those facts are
to be proved - facta probantia- on the
other must be kept clearly distinguished.
In Philipps v. Philipps, Brett, L.J. said:
'I will not say that it is easy to
express in words what are the facts which
must be stated and what matters need
not be stated. ...The distinction is taken in
the very rule itself, between the facts on
which the party relies and the evidence to
prove those facts. Erle, C.J. expressed it
in this way. He said that there were facts
that might be called the allegata
probanda, the facts which ought to be
proved, and they were different from the
evidence which was adduced to prove
those facts. And it was upon the
expression of opinion of Erle, C.J. that
Rule 4 [now Rule 7(1)] was drawn. The
facts which ought to be stated are the
material facts on which the party pleading
relies.'
17. Lord Denman, C.J. in Williams
v. Wilcox said:
'It is an elementary rule in pleading
that, when a state of facts is relied, it is
enough to allege it simply, without
setting out the subordinate facts which
are the means of proving it, or the
evidence sustaining the allegations.'
18. An election petition can be
rejected under Order 7 Rule 11(a) CPC if
it does not disclose a cause of action.
Pleadings could also be struck out under
Order 6 Rule 16, inter alia, if they are
scandalous, frivolous or vexatious. The
latter two expressions meant cases where
the pleadings are obviously frivolous and
vexatious or obviously unsustainable."
56. It will thus have to be seen whether in this case the
basic facts which the petitioner was required to plead to
prove her case had been set forth.
57. As could be seen from paragraph 4 of the petition
extracted above, the 4th respondent basically stated
what had been stated by the appellant in her affidavit
accompanying the nomination form.
58. In paragraph 5, the 4th respondent stated the
information provided in paragraph 8 (b) of the affidavit
was false, especially when the husband of the 4th
respondent owned the properties mentioned therein.
59. Thus, the averments made in these two paragraphs
were to the effect that a false affidavit had been filed by
the appellant.
60. In paragraph 6 of the petition, it is alleged that the
filing of this false affidavit resulted in the indulging of a
corrupt practice so as to claim reservation under BC-B
category and this amounted to a disqualification and
improper acceptance of the 4th respondent.
61. According to learned Senior Counsel for the
appellant, since it was not specifically stated that the non
disclosure of the assets and liabilities by itself amounted
to a corrupt practice, there was basically no plea put
forth and the only plea that was actually put forth was
that the non disclosure of assets was to take the benefit
of reservation.
62. In my view, this argument cannot be accepted. The
averments made in paragraphs 4 and 5 clearly stated
that a false affidavit was filed regarding the disclosure of
properties owned by the husband of the 4th respondent
and this by itself would be a sufficient plea of material
facts relating to a corrupt practice. In other words, if
these facts were proved by the 4th respondent, the
election of the appellant would be liable to be set aside
on the ground of a corrupt practice having been indulged
by the appellant.
63. It is to be stated here that the 4th respondent did
not have to state the consequence of filing of a false
affidavit in her plea since that would not have been a
material fact. In other words, the consequence of a fact
or the resultant proof of that fact need not be stated in
the pleading since that would be basically an argument
and not a material fact.
64. The 4th respondent has no doubt stated in
paragraphs 6 that the reason for filing the false affidavit
was to gain reservation. From that, however, it cannot
be held that the only plea put forth was that a corrupt
practice was indulged in only to gain reservation.
65. As held by the Apex court in the case of Madiraju
(supra), the election petition will have to be read as a
whole and cannot be dissected sentence wise or
paragraph wise to rule that there was no cause of action.
In my view, if the election petition as a whole is read,
the primary thrust of the election petitioner was that a
false affidavit had been filed to the effect that the
husband of the appellant did not own movable or
immovable properties. Obviously, this plea need not to
have been followed with a conclusion that it amounted to
a corrupt practice since that would have amounted to an
argument and not a material fact.
66. The 4th respondent has followed up this plea of
material fact with a conclusion in paragraph 6 that it
amounted to a corrupt practice and it was for the
purpose of obtaining reservation. The understanding of
the 4th respondent about the consequence of the corrupt
practice indulged in by the appellant cannot be
considered as a material fact since this would be a
matter for the Court to decide after trial.
67. The 4th respondent has also furnished the details of
the properties owned by the husband of the appellant to
indicate that a false affidavit had been filed. Thus, the
full particulars of the corrupt practice i.e., the
suppression of assets have been disclosed by the
appellant.
68. I am, therefore, of the view that the election
petition did contain a plea of the material facts relating
to non disclosure of properties owned by the husband of
the appellant and it also contained the full particulars of
the properties owned by him.
69. The next question to be decided is whether this
plea was properly verified and duly supported by an
affidavit as contemplated under Section 33 (4) of the
KMC Act.
70. At the outset, it is to be understood as to why a
pleading is required to be verified. The requirement of a
party to verify a pleading is to basically have a
certification by the person making the statement that the
statement made by him is true and that not only was he
confirming the same to be true but would also be able to
establish the same to be true. Obviously, this
requirement is to hold the person making the statement
accountable and responsible. If it is found subsequently
that the statement made was false and yet it was made
knowing it to be false, the person would be subjected to
the penalties of law.
71. The verification, in reality, is a proof reading by the
person making the statement. By the verification, he
confirms the statement made by him to be true. He also
thereby certifies that he has understood the implication
of the statement made by him and that he would stand
by it and would also establish it to be true in order to
secure the relief from the Court. Verification, in essence,
is a solemn assurance to the Court that the person who
makes it is making it with a sense of responsibility and is
also aware of the consequences of making it.
72. The Apex Court in the case of F.A.Sapa & Others
vs. Singora and Others - (1991) 3 SCC 375 has
stated as follows:
"20. That brings us to clause (c) of
sub-section (1) of Section 83, which provides
that an election petition shall be signed by the
petitioner and verified in the manner laid down
by the Code for the verification of the pleadings.
Under Section 83(2) any schedule or annexure
to the pleading must be similarly verified. Order
6 Rule 15 is the relevant provision in the Code.
Sub-rule (2) of Rule 15 says that the person
verifying shall specify with reference to the
numbered paragraphs of the pleading, what he
verifies on his own knowledge and what he
verifies upon information received and believed
to be true. The verification must be signed by
the person making it and must state the date on
and the place at which it was signed. The defect
in the verification can be (i) of a formal nature
and not very substantial (ii) one which
substantially complies with the requirements
and (iii) that which is material but capable of
being cured. It must be remembered that the
object of requiring verification of an election
petition is clearly to fix the responsibility for the
averments and allegations in the petition on the
person signing the verification and at the same
time discouraging wild and irresponsible
allegations unsupported by facts. Then comes
the proviso which provides that in cases where
corrupt practice is alleged in the petition, the
petition shall also be supported by an affidavit
in the prescribed form i.e. Form 25 prescribed
by Rule 94-A of the Rules. Lastly sub-section
(2) of Section 83 lays down that any schedule
or annexure to the petition shall also be
similarly signed and verified. Two questions
arise: (i) what is the consequence of a defective
or incomplete verification and (ii) what is the
consequence of a defective affidavit? It was also
said that the verification clause in regard to
averments or allegations based on information
ought to disclose the source of information
which had not been done in this case."
73. Thus, it is clear that the very purpose of verification
and the filing of an affidavit is to fix responsibility on the
person making it and to prevent wild and reckless
allegations being made by an election petitioner.
74. In the instant case, the 4th respondent has stated
in her verification that the facts stated in paragraphs 1 to
10 are all true and correct and in token thereof she was
signing the petition.
75. In paragraph 4 of the petition, the 4th respondent
stated that she had approached the competent authority
and obtained the nomination form and the affidavit
annexed to it. In paragraph 5, she has stated that the
information provided in paragraph 8 (b) of the affidavit
were totally false given the fact that her husband owned
several properties which were also detailed in the very
same paragraph. In paragraph 7, she has stated that
immediately after ascertaining the false information in
the affidavit she had had submitted a written protest. It
is thus clear that all the averments made by her were,
according to her, true and correct and the averments
were made out of her own knowledge.
76. Order VI Rule 15 (2) of CPC requires that person
verifying should specify with reference to the numbered
paragraphs what he verifies to his own knowledge and
what he verifies upon information received by him which
he believes to be true. In this case, the 4th respondent
did not attribute her knowledge of the assets owned by
the husband appellant to any other person and hence
the need to state the source of information would not
arise. Further, she stated that she had ascertained the
falsity of the affidavit and lodged a complaint. In other
words, the 4th respondent stated that her assertions
were based on her own knowledge. In this view of the
matter, it is clear that the verification of the 4th
respondent was in accordance with the requirement of
Order VI Rule 15 of CPC.
77. Learned Senior Counsel Sri Ashok Haranahalli
appearing for the appellant, however, also put forth the
contention that the affidavit accompanying the petition
which had been filed in support of the allegation of
corrupt practice was required to be in the prescribed
form and the affidavit filed did not meet the requirement
of law.
78. Learned Senior Counsel, however, did submit that
the neither the KMC Act nor the Rules prescribed a form
of affidavit to be adopted for compliance of the
requirement of the proviso to Section 33 (4) of the KMC
Act. He, however, submitted that the affidavit should
have been a verifying affidavit and the affidavit filed
could not be considered as an affidavit at all.
79. Since it is an undisputed fact that there is no
prescribed form of the affidavit by virtue of Section 36 of
the KMC Act which contemplates the procedure
prescribed by the CPC for suits to be followed in respect
of trial of election petition, one would have to fall back
upon the provisions of the Code to determine the
requirements of an affidavit.
80. Order XIX Rule 3 (1) of CPC states that the
affidavits should be confined to such facts as the
deponent is able of his own knowledge to prove. An
exception is however made in respect of interlocutory
applications, which would be however inapplicable to the
case on hand. Thus, if the affidavit filed by the 4th
respondent conforms to the requirement of Order XIX
Rule 3 (1) of CPC, it cannot be said that the affidavit was
defective.
81. A perusal of the affidavit filed in support of the
allegation of corrupt practice indicates that the 4th
respondent had stated on oath that the appellant had
furnished false information regarding the assets of her
husband and she also thereafter stated the details of the
assets owned by 4th respondent's husband. Obviously,
this affidavit was confined to the facts within her
knowledge and was thus in conformity with the
requirement of Order XIX Rule 3 (1) of CPC. The
argument of the learned Senior Counsel appearing for
the appellant that the affidavit was defective cannot
therefore be accepted.
82. There are two other reasons that this argument of
defective verification and an improper affidavit cannot be
accepted.
83. Recently, a three Judge Bench of the Apex Court in
the case of Saritha S. Nair Vs. Hibi Eden - 2020 SCC
Online SC 1006 while considering a case arising under
the RP Act has stated as follows:
"30. It is relevant to note that the Act
keeps in two separate compartments-
(i) The presentation of election petitions;
and
(ii) the trial of election petitions.
31. The presentation of election petitions
is covered by Sections 80 to 84 falling in
Chapter-II. The trial of election petitions is
covered by Sections 86 to 107 and they are
contained in Chapter-III.
32. This compartmentalization, may be
of significance, as seen from 2 facts namely:--
(i) That under Section 80 no election shall be
called in question except by an election
petition presented in accordance with the
provisions of "this part"; and
(ii) That a limited reference is made to the
provisions of the Code of Civil Procedure, 1908
in Chapter-II, only in places where signature
and verification are referred to.
33. In so far as presentation of election
petitions is concerned, Chapter-II is a
complete code. This is because, the various
provisions of Chapter-II cover all aspects of
the presentation of an election petition, such
as:--
(i) The person(s) who is/are entitled to file;
(ii) Person(s) who could be joined as
respondents;
(iii) The types of different reliefs that can be
sought;
(iv) The grounds on which such reliefs could
be sought;
(v) Period of limitation for filing an election
petition;
(vi) The court where the petition could be
filed;
(vii) Contents of such petition; and
(viii) Format of the election petition and the
manner in which it is to be signed and verified.
34. Some of the rules contained in Chapter II
are inflexible and inviolable. But some may
not be. Whether the manner of signing and
verifying an election petition is an inflexible
rule, is what is to be seen here.
35. Section 83(1)(c) mandates that an
election petition shall be signed by the
petitioner and verified in the manner laid down
in the Code of Civil Procedure for verification
of pleadings. Signing a petition and verifying
the petition are 2 different aspects. While
Order VI, Rule 14 deals with the signing of the
petition, Order VI, Rule 15 deals with the
verification of pleading. Rule 14 mandates that
every pleading shall be signed by the party as
well as the pleader, if any. But the proviso
carves out an exception by stating that
where a party is unable to sign the
pleading, by reason of absence or for
other good cause, it may be signed by
any person duly authorized by him to sign
the same or to sue or defend on his behalf.
Order VI, R.14 reads as follows:--
"14. Pleading to be signed.-Every
pleading shall be signed by the party and his
pleader (if any):
Provided that where a party pleading is,
by reason of absence or for other good cause;
unable to sign the pleading, it may be signed
by any person duly authorized by him to sign
the same or to sue or defend on his behalf."
36. Order VI, R.15 which speaks about
verification of pleadings reads as follows:--
"15. Verification of pleadings.-- (1)
Save as otherwise provided by any law for the
time being in force, every pleading shall be
verified at the foot by the party or by one of
the parties pleading or by some other person
proved to the satisfaction of the court to be
acquainted with the facts of the case.
(2) The person verifying shall specify, by
reference to the numbered paragraphs of the
pleading, what he verifies of his own
knowledge and what he verifies upon
information received and believed to be true.
(3) The verification shall be signed by the
person making it and shall state the date on
which and the place at which it was signed.
(4) The person verifying the pleading shall
also furnish an affidavit in support of his
pleadings."
37. It is to be noted that Sub-rule (1)
of Rule 15 of Order VI also permits the
verification of pleading to be done by a
person other than the party pleading,
provided it is proved to the satisfaction of the
Court that such other person was acquainted
with the facts of the case.
38. Section 86(1) empowers the High
Court to dismiss an election petition which
does not comply with the provisions of Section
81, Section 82 or Section 117 and it does not
include Section 83 within its ambit. Therefore,
the question whether or not an election
petition which does not satisfy the
requirements of Section 83, can be dismissed
at the pre-trial stage under section 86(1), has
come up repeatedly for consideration before
this Court. We are concerned in this case
particularly with the requirement of Clause (c)
of Subsection (1) of Section 83 and the
consequence of failure to comply with the
same.
39. In Murarka Radhey Shyam Ram Kumar v.
Roop Singh Rathore, a preliminary objection to
the maintainability of the election petition was
raised on the ground that the verification was
defective. The verification stated that the
averments made in some paragraphs of the
petition were true to the personal knowledge
of the petitioner and the averments in some
other paragraphs were verified to be true on
advice and information received from legal
and other sources. There was no statement
that the advice and information received by
the election petitioner were believed by him to
be true. Since this case arose before the
amendment of the Act under Act 47 of 1966,
the election petition was dealt with by the
Tribunal. The Tribunal held the defect in the
verification to be a curable defect. The view of
the Tribunal was upheld by this Court in
Murarka Radhey Shyam Ram Kumar (supra).
This Court held that "it is impossible to
accept the contention that a defect in
verification which is to be made in the
manner laid down in the Code of Civil
Procedure for the verification of
pleadings as required by Clause (c) of
Sub-section (1) of Section 83 is fatal to
the maintainability of the petition".
40. The ratio laid down in Muraraka
was reiterated by a three member Bench of
this Court in F.A. Sapa v. Singora holding that
"the mere defect in the verification of the
election petition is not fatal to the
maintainability of the petition and the
petition cannot be thrown out solely on
that ground". It was also held in F.A. Sapa
that "since Section 83 is not one of the
three provisions mentioned in Section
86(1), ordinarily it cannot be construed
as mandatory unless it is shown to be an
integral part of the petition under Section
81".
41. In F.A. Sapa (supra) this Court
framed two questions in paragraph 20 of the
Report, as arising for consideration. The first
question was as to what is the consequence of
a defective or incomplete verification. While
answering the said question, this Court
formulated the following principles:--
(i) A defect in the verification, if any, can be
cured
(ii) It is not essential that the verification
clause at the foot of the petition or the
affidavit accompanying the same should
disclose the grounds or sources of information
in regard to the averments or allegations
which are based on information believed to be
true
(iii) If the respondent desires better
particulars in regard to such averments or
allegations, he may call for the same, in which
case the petitioner may be required to supply
the same and
(iv) The defect in the affidavit in the
prescribed Form 25 can be cured unless the
affidavit forms an integral part of the petition,
in which case the defect concerning material
facts will have to be dealt with, subject to
limitation, under Section 81(3) as indicated
earlier."
42. It was also held in F.A. Sapa
(supra) that though an allegation involving
corrupt practice must be viewed very seriously
and the High Court should ensure compliance
with the requirements of Section 83 before the
parties go to trial, the defective verification
of a defective affidavit may not be fatal.
This Court held that the High Court should
ensure its compliance before the parties go to
trial. This decision was followed by another
three-member Bench in R.P. Moidutty v. P.T.
Kunju Mohammad.
43. In Sardar Harcharan Singh Brar v.
Sukh Darshan Singh, this Court held that
though the proviso to Section 83(1) is
couched in a mandatory form, requiring a
petition alleging corrupt practice to be
accompanied by an affidavit, the failure
to comply with the requirement cannot be
a ground for dismissal of an election
petition in limine under Section 86(1).
The Court reiterated that non-compliance with
the provisions of Section 83 does not attract
the consequences envisaged by Section 86(1)
and that the defect in the verification and
the affidavit is a curable defect. The
following portion of the decision is of
significance:
"14. xxxx
Therefore, an election petition is not
liable to be dismissed in limine under Section
86 of the Act, for alleged non-compliance with
provisions of Section 83(1) or (2) of the Act or
of its proviso. The defect in the verification
and the affidavit is a curable defect. What
other consequences, if any, may follow from
an allegedly "defective" affidavit, is required to
be judged at the trial of an election petition
but Section 86(1) of the Act in terms cannot
be attracted to such a case."
44. In K.K. Ramachandran Master v. M.V.
Sreyamakumar, this Court followed F.A. Sapa
(supra) and Sardar Harcharan Singh Brar
(supra) to hold that defective verification is
curable. The Court again reiterated that the
consequences that may flow from a defective
affidavit is required to be judged at the trial of
an election petition and that such election
petition cannot be dismissed under Section
86(1).
45. Though all the aforesaid decisions
were taken note by a two-member Bench in
P.A. Mohammed Riyas v. M.K. Raghavan, the
Court held in that case that the absence of
proper verification may lead to the conclusion
that the provisions of Section 81 had not been
fulfilled and that the cause of action for the
election petition would remain incomplete.
Such a view does not appear to be in
conformity with the series of decisions
referred to in the previous paragraphs and
hence P.A. Mohammed Riyas cannot be taken
to lay down the law correctly. It appears from
the penultimate paragraph of the decision in
P.A. Mohammed Riyas (supra) that the Court
was pushed to take such an extreme view in
that case on account of the fact that the
petitioner therein had an opportunity to cure
the defect, but he failed to do so. Therefore,
P.A. Mohammed Riyas (supra) appears to
have turned on its peculiar facts. In any case
P.A. Mohammed Riyas was overruled in G.M.
Siddeshwar v. Prasanna Kumar on the
question whether it is imperative for an
election petitioner to file an affidavit in terms
of Order VI Rule 15(4) of the Code of Civil
Procedure, 1908 in support of the averments
made in the election petition in addition to an
affidavit (in a case where resort to corrupt
practices have been alleged against the
returned candidate) as required by the proviso
to Section 83(1). As a matter of fact, even the
filing of a defective affidavit, which is not in
Form 25 as prescribed by the Rules, was held
in G.M. Siddeshwar to be a curable defect and
the petitioner was held entitled to an
opportunity to cure the defect.
46. The upshot of the above discussion
is that a defective verification is a curable
defect. An election petition cannot be thrown
out in limine, on the ground that the
verification is defective."
84. It is also to be noticed here that unlike the
obligation cast upon the Court to dismiss the Election
Petition under Section 86 in the RP Act for non
compliance of Section 81 (i.e., Presentation of petitions)
or Section 82 (i.e., Parties to the petition) of the RP Act,
there is no provision similar to Section 86 in the KMC
Act.
85. As noticed by the Apex Court in Saritha S. Nair's
case (supra), even in respect of an Election Petition filed
under the RP Act, there is no obligation on the part of
the Court to dismiss the petition for non adherence to
Section 83 of the RP Act which relates to the
requirement of the contents of an Election Petition and
which prescribes the requirement of a proper verification
and an affidavit in support of the allegation of corrupt
practice.
86. Thus, the upshot of this discussion is that no
Election Petition can be dismissed because it contained a
defective verification or a defective affidavit as both of
them have been held to be curable defects.
87. Yet another reason for which this line of argument
cannot be accepted is that the appellant did not raise
any objections regarding the defective affidavit or
defective verification. As stated above, by virtue of
Section 36 of the KMC Act, the procedure prescribed for
suits under the CPC is required to be followed for trial
and disposal of an election petition.
88. Admittedly, the appellant filed her statement of
objections to the contents of the Election Petition and in
that objections she did not raise any plea that the
petition was not properly verified and full particulars of
the corrupt practice were not furnished in the affidavit.
89. Order VIII Rule 2 of CPC states that the defendant
must raise by his pleading all matters which show the
suit not to be maintainable and that the transaction is
either void or voidable in law and raise all such grounds
of defence, which, if not raised would be likely to take
the plaintiff by surprise.
90. Thus, it was incumbent on the appellant to put
forth a specific plea that the Election Petition was not
maintainable for want of a proper verification and a
proper affidavit. If such a plea was not taken, it is
obvious that the raising of such a contention after the
conclusion of the trial or in appeal would be
impermissible and would essentially be an attempt to
take the election petitioner by surprise. I am therefore of
the view that the argument of the learned Senior
Counsel regarding the defective verification and the
affidavit cannot be entertained.
91. A further reason as to why this argument cannot be
accepted is the fact that the allegation of the 4th
respondent that the appellant did not disclose the assets
of her husband in the affidavit was unconditionally
admitted by the appellant. If the allegation of the 4th
respondent, assuming, it was not properly verified or
supported by an affidavit, is in fact admitted by the
appellant in her reply, the argument that the allegation
will have to be discarded because of an improper
verification cannot be entertained at all.
92. The appellant, in her reply, admitted that she had
not furnished the details of the assets owned by her
husband and she attributed this to a bona fide error and
contended that it was unintentional. In my view, in the
light of the fact the allegation of the 4th respondent
regarding non disclosure was admitted by the appellant,
the entire set of arguments relating to a defective
verification or affidavit cannot be pressed into service
and the same deserve to be rejected.
93. In the light of the admitted fact that the appellant
did not disclose the assets of her husband in her affidavit
accompanying the nomination form, it will now have to
be considered whether this non disclosure amounted to a
corrupt practice.
94. The Apex Court in the case of Krishnamoorthy
vs. Sivakumar and Others - (2015) 3 SCC 467 in
the context of criminal antecedents of a candidate
contesting the elections held as follows:
"91. The purpose of referring to the
instruction of the Election Commission is that
the affidavit sworn by the candidate has to be
put in public domain so that the electorate
can know. If they know the half truth, as
submits Mr. Salve, it is more dangerous, for
the electorate is denied of the information
which is within the special knowledge of the
candidate. When something within special
knowledge is not disclosed, it tantamounts to
fraud, as has been held in S.P.Chengalvaraya
Naidu v. Jagannath. While filing the
nomination form, if the requisite information,
as has been highlighted by us, relating to
criminal antecedents, is not given,
indubitable, there is an attempt to suppress,
effort to misguide and keep the people in
dark. This attempt undeniably and
undisputedly is undue influence and,
therefore, amounts to corrupt practice. It is
necessary to clarify here that if a candidate
gives all the particulars and despite that he
secures the votes that will be an informed,
advised and free exercise of right by the
electorate. That is why there is a distinction
between a disqualification and the corrupt
practice. In an election petition, the election
petitioner is required to assert about the
cases in which the successful candidate is
involved as per the rules and how there has
been non-disclosure in the affidavit. Once
that is established, it would amount to
corrupt practice. We repeat at the cost of
repetition, it has to be determined in an
election petition by the Election Tribunal."
95. As already stated above, the Election Commission
taking note of the decision of the Apex Court dated 2nd
May 2002 in the case of Union of India vs.
Association of Democratic Reforms (supra) and
reiterated in PUCL & Another vs. Union of India &
Another - (2003) 4 SCC 399 made the filing of an
affidavit containing not only the criminal antecedents of
the candidate but also the assets and liabilities of the
candidate and his/her spouse along with the nomination
form mandatory.
96. The Apex Court in the case of Lok Prahari vs.
Union Of India and others - (2018) 4 SCC 699,
which was decided on 16.02.2018, has held as follows:
"56. It must be mentioned that the 1st
respondent in its counter-affidavit stated:
"6. That it is further stated that
the Election Commission of India's Proposal
relating to amending of Form 26 was
thoroughly examined and considered in the
Ministry of Law and Justice and a final
decision has been taken to amend Form 26
of the 1961 Rules. As the issues involved
relate to policy matter and after due
deliberations on the subject matter a final
policy decision was taken to amend Form
26."
57. Collection of such data can be
undertaken by any governmental agency or
even the Election Commission. The present
writ petition seeks that the State be compelled
to make a law authorizing the collection of data
pertaining to the financial affairs of the
legislators. The petitioner submits that the
first step in the collection of data should be to
call upon those who seek to get elected to a
legislative body to make a declaration of (i)
their assets and those of their associates
(which is already a requirement under Section
33 of the 1951 RP Act, etc.); and (ii) the
sources of their income.
58. The obligation to make the second of
the abovementioned two declarations arises as
a corollary to the fundamental right of the
voter under Article 19(1)(A) to know the
relevant information with respect to the
candidate, to enable the voter to make an
assessment and make an appropriate choice of
his representative in the legislature. The
enforcement of such a fundamental right needs
no statutory sanction. This Court and the High
Courts are expressly authorized by the
Constitution to give appropriate directions to
the State and its instrumentalities and other
bodies for enforcement of fundamental rights.
On the other hand, nobody has the
fundamental right to be a legislator or to
contest an election to become a legislator.
They are only constitutional rights structured
by various limitations prescribed by the
Constitution and statutes like the 1951 RP Act.
The Constitution expressly permits the
structuring of those rights by Parliament by or
under the authority of law by prescribing
further qualifications or disqualifications. To
contest an election for becoming a legislator, a
candidate does not require the consent of all
the voters except the appropriate number of
proposers being electors of the Constituency,
and compliance with other procedural
requirements stipulated under the 1951 RP Act
and the Rules made thereunder. But to get
elected, every candidate requires the approval
of the "majority" of the number of voters of the
Constituency choosing to exercise their right to
vote. Voters have a fundamental right to know
the relevant information about the candidates.
For reasons discussed earlier, the financial
background in all its aspects, of the candidate
and his/her associates is relevant and critical
information. Therefore, a candidate's
constitutional right to contest an election to the
legislature should be subservient to the voter's
fundamental right to know the relevant
information regarding the candidate;
information which is critical to the making of an
informed and rational choice in this area.
XXXXX
79. We shall now deal with Prayer 2 which
seeks a declaration that non-disclosure of
assets and sources of income would amount to
"undue influence"-a corrupt practice under
Section 123(2) of the 1951 RP Act. In this
behalf, heavy reliance is placed by the
petitioner on a judgment of this Court in
Krishnamoorthy v. Sivakumar. It was a case
arising under the Tamil Nadu Panchayats Act,
1994. A notification was issued by the State
Election Commission stipulating the every
candidate at an election to any panchayat is
required to disclose information, inter alia,
whether the candidate was accused in any
pending criminal case of any offence
punishable with imprisonment for two years or
more and in which charges have been framed
or cognizance has been taken by a court of
law. In an election petition, it was alleged that
there were certain criminal cases pending
falling in the above mentioned categories but
the said information was not disclosed by the
returned candidate at the time of filing his
nomination. One of the questions before this
Court was whether such non-disclosure
amounted to "undue influence"- a corrupt
practice under the Panchayats Act. It may be
mentioned that the Panchayats Act simply
adopted the definition of a corrupt practice as
contained in Section 123 of the 1951 RP Act.
80. On an elaborate consideration of various
aspects of the matter, this Court in
Krishnamoorthy's case held as follows (SCC
p.522, para 91)
"91. ...While filing the nomination
form, if the requisite information, as has
been highlighted by us, relating to
criminal antecedents, is not given,
indubitably, there is an attempt to
suppress, effort to misguide and keep
the people in dark. This attempt
undeniably and undisputedly is undue
influence and, therefore, amounts to
corrupt practice. ..."
81. For the very same logic as adopted by
this Court in Krishnamoorthy, we are also of
the opinion that the non-disclosure of assets
and sources of income of the candidates and
their associates would constitute a corrupt
practice falling under heading "undue
influence" as defined under Section 123(2) of
the 1951 RP Act. We therefore, allow Prayer
2."
97. As could be seen from the said decision, the Apex
court has held that the non disclosure of assets and
sources of income of the candidate and their associates
would constitute a corrupt practice falling under heading
"undue influence" as defined under Section 123 (2) of RP
Act.
98. In the case on hand, as noticed above, the filing of
an affidavit disclosing the assets and liabilities of the
candidate and his/her spouse had been made mandatory
by the Election Commission way back in 2003 itself and
this mandate was held to be lawful and in exercise of the
constitutional power of the Election Commission available
under Article 324 of the Constitution of India by the Apex
Court. Since a similar constitutional power is enabled in
favour of the Election Commission under Article 243 ZA
of the Constitution of India in respect of elections to
Municipalities, it cannot be in dispute that the
requirement of filing an affidavit along with the
nomination form was both mandatory and essential.
99. Keeping this legal requirement in mind, if the case
of the appellant is considered, it is clear that the
appellant cannot contend that she was unaware of the
requirement of filing an affidavit containing information
of her criminal antecedents and also the assets and
liabilities of herself and her husband. Despite being
aware of this mandate, the appellant chose not to
disclose her husband's assets. Further, on being
confronted with an allegation in this regard in the
Election Petition, she admitted the allegation and put
forth the plea that it was a bona fide error and was
unintentional.
100. Since the non disclosure of assets and liabilities
was admitted by the appellant, it is clear that it did
constitute a corrupt practice as envisaged under Section
39 (2) of the KMC Act. It is to be stated here that the
definition of "undue influence" under Section 123 (2) of
the RP Act has been adopted under Section 39 (2) of the
KMC Act. In view of the declaration of law by the Apex
Court in this regard in Lok Prahari's case (supra), it is
clear that the appellant is deemed to have indulged in a
corrupt practice and as a consequence, the elections
returned in favour is required to be set aside.
101. The plea that the non disclosure of assets was a
bona fide error and was unintentional and should
therefore not be taken seriously cannot also be accepted.
The Election Commission in order to give effect to the
principles laid down by the Apex Court devised a
mechanism to ensure "purity, openness and
transparency in the elections" and in order to fulfill this
objective required the filing of an affidavit containing not
only the full information of the criminal antecedents of
the candidate, but, also the disclosure of his/her assets
and that of the spouse mandatory. If a candidate were to
treat such a mechanism in a casual and cavalier manner
and put forth a plea that omission was a bona fide error,
it would render the whole exercise of laying down a
mechanism to ensure purity, openness and transparency
meaningless, redundant and futile.
102. If in a given case, a candidate were to suppress his
criminal antecedents by saying that there were no
convictions against him or that there were no criminal
cases pending against and later on it was found that he
did in fact have convictions or criminal cases against
him, the candidate would surely be guilty of undue
influence as explained in paragraph 91 of the judgment
rendered in Krishnamoorthy's case (supra). Surely, a
candidate who has supressed key information about his
antecedents to the citizens cannot escape the
consequences of suppression of facts by saying it was a
bona fide error or it was unintentional.
103. If the purpose of disclosing all assets and liabilities
is to ensure that the voter's fundamental right of
information guaranteed under Article 19 (1) (a) of the
Constitution of India to be informed of the complete
details of the candidates contesting for election, then,
obviously the non disclosure of the assets would be a
direct contravention of this fundamental right, which can
neither be overlooked, ignored nor condoned. Thus, the
argument of a bona fide error or the act being
unintentional cannot be accepted in the case of an
allegation of corrupt practice.
104. In view of the above, discussion questions (i) and
(ii) are held against the appellant and it is to be held that
the non disclosure of assets and liabilities of the
appellant's husband did constitute a corrupt practice as
defined under S. 39 of the KMC Act and the Election
petition did contain a plea regarding the corrupt practice
and was supported by an affidavit containing the full
particulars.
105. The last argument of the learned Senior Counsel
appearing for the appellant was that the approach of the
District Court was completely erroneous and it had not
considered the matter in the proper perspective. I am
afraid this argument too cannot be accepted.
106. The District Court in the impugned judgment has
stated as follows with regard to the non disclosure of
assets and its effect:
"31. On reading the aforesaid
provisions, the purpose of disclosure of assets
and liabilities of the candidate is to educate the
voters about the financial status of the
candidate. It also facilitates the voters to
estimate whether assets declared by the
candidate have been procured by him/her out
of legitimate or known source of income. Based
on this estimate, the voters have to form a
decision as whether or not to elect the
candidate. It is the fundamental right of the
voter, which casts a corresponding
fundamental duty on the candidate to disclose
fully and truthfully information regarding
his/her assets and liabilities, including of
his/her spouse.
XXX XXX XXX
36. So far as documentary evidence
produced by the petitioner is concerned, in this
case, she has produced the RTC Extracts, copy
of the sale Deed and other documents marked
at Exs.P.4 to P.9. Voters List have been
produced at Exs.P.10 and P.11 and
photographs at Exs.P.12 and P.13 are produced
to show that respondent No.4 is residing in the
house so seen in these Exhibits-Photographs.
It is not denied by respondent No.4 during the
Course of her evidence.
37. The petitioner has contended
that, respondent No.4 has intentionally and
deliberately suppressed the assets stated supra
in her petition which is corroborative in nature
with that of the documents being produced by
her.
38. The Nomination Form-Ex.P.2
was filled by respondent No.4 and presented
before the Returning Officer of Ward No.36,
Yeraganahalli. On 28.02.2018, she has filled in
all the clauses. The said Form was accepted as
a valid nomination by the Returning Officer.
Respondent No.4 has filed 'B' Form issued by
the Election Authority, submitted Affidavits
along with Nomination as per the provisions of
Representation of People Act. Respondent
No.4 has made affidavit in respect of her
movables. In this Affidavit, respondent No.4 is
required to give personal details in respect of
her income-tax returns, immovable properties
etc. Above information is part 'A' of the Form.
Similar details and description of the properties
i.e., movable and immovable, owned by spouse
and dependent are required to be mentioned in
the Form 'A'. Part 'B' is an extract of the
details given in clauses 1 to 10 of Part 'A'. At
the end, deponent of this affidavit is required
to make verification that the contents of the
affidavit are true and correct to the best of
his/her knowledge, belief and no part of its is
false and no material have been concealed
therefrom. Thus, respondent No.4 has made
further declaration and made statement on
oath as follows:
"My spouse or my dependents did
not have any asset or liability,
other than those in items No.7 and
8 of Part 'A' and items No.8, 9 and
10 of Part 'B' above."
39. This affidavit was sworn in
before Notary on 16.08.2018. Thus,
chronologically, the affidavit was sworn and
then it was presented along with the
Nomination Form to the Returning Officer. As
per the record, Returning Officer accepted the
Nomination Form and Affidavit of respondent
No.4 as valid.
40. Before discussing the fact on
non-disclosure, it is necessary for the petitioner
to prove first that, the properties are owned by
spouse/husband of respondent No.4. If the
properties are owned by respondent No.4's
husband, then the issue of disclosure or non-
disclosure will arise. In this case, as stated
supra, the petitioner has produced RTC
Extracts, copies of the Sale Deed etc., standing
in the name of the husband of respondent
No.4. The petitioner in order to prove the
same, has produced various documents to
show the holding of immovable properties by
the husband of respondent No.4. That means,
Exs.P.3 to P.9 have been tendered in evidence
by the petitioner in addition to the oral
evidence spoken to by her.
41. Respondent No.4 has fairly
admitted about this fact and contends that, this
non-disclosure of the properties is not
deliberate, but it is for bona fide reasons. In
view of respondent No.4 has admitted in the
pleadings and in her oral testimony of non-
disclosure of mentioning the immovable
properties standing in the name of her
husband, it can be held that, this respondent
has not disclosed the said fact in her affidavit.
XXX XXX XXX
45. Now, the plea taken by the
respondent No.4 that, such non-disclosure is
not deliberate or intentional cannot be
accepted. It is the duty of the contesting
candidate to verify the contents of Form No.26
before submitting the same to the Returning
Officer. The plea taken by the respondent No.4
that it was not intentional/deliberate is not
sustainable either on facts or law. Respondent
No.4 cannot blame anybody except herself for
non-mentioning the immovable properties of
her husband, having admitted the same in her
counter. Basing the material on record, I have
no hesitation to hold that, by non-mentioning
the immovable properties in Form No.26, the
respondent No.4 had violated the provisions of
the Karnataka Municipal Corporations Act as
well as the provisions of Section 123(2) of the
Representation of People Act. Hence, Points
No.1 and 2 stated supra are to be answered in
favour of the petitioner and against respondent
No.4. Accordingly, they are answered in the
affirmative."
107. The District Court, having regard to the order
passed by this Court in MFA.4023/2019 and also on
consideration of the evidence adduced before it, has
recorded a clear finding of fact that the non disclosure of
the assets of the appellant's husband amounted to a
corrupt practice and therefore, her elections were
required to be set aside. In my view, there is no error or
infirmity in the approach adopted by the District Court.
108. In view of the fact that elections of the appellant
were rightly set aside, the next question to be
considered is whether the 4th respondent could be
declared to have been elected.
109. A three Judge Bench of the Apex court in the case
of Muniraju Gowda P.M. vs. Munirathna & Others -
(2020) 10 SCC 192 has held as follows:
"19. There is one more reason why
the petitioner cannot succeed. In the elections in
question, there were 14 candidates in the fray,
including the petitioner herein and the first
respondent. In Vishwanatha Reddy v. Konappa
Rudrappa Nadgouda, the Constitution Bench of
this Court treated the votes polled in favour of
the returned candidate as thrown away votes, on
the ground that he was disqualified from
contesting and that the election petitioner was
entitled to be declared elected, in view of the fact
that there was no other contesting candidate. But
the Constitution Bench cautioned that the rule for
the exclusion of the votes secured by corrupt
practices by the returned candidate in the
computation of the total votes and the
consequential declaration of the candidate who
secured the next highest number of votes as duly
elected, can be applied only when there are just
two candidates at an election.
20. The ratio in Vishwanatha Reddy was
followed in Thiru John v. Returning Officer.
Though this case concerned election to the Rajya
Sabha through single transferable votes, this
Court observed in this case that it would be
extremely difficult if not impossible, to predicate
what the voting pattern would have been, if the
electors knew at the time of election that one was
disqualified. The Court pointed out that the
question as to how many of the voters would
have cast their votes in favour of other continuing
candidates and in what preferential order,
remained a question in the realm of speculation
and unpredictability.
21. In D.K. Sharma v. Ram Sharan Yadav,
this Court followed the dictum in Vishwanatha
Reddy to the effect that where there are more
than two candidates in the field, it is not possible
to apply the same ratio as could be applied when
there are only two candidates. This principle was
also reiterated in Prakash Khandre v. Vijay Kumar
Khandre, where this Court pointed out: Prakash
Khandre case, SCC pp. 579-80, para 24)
"24. ... in the present case, for one seat,
there were five candidates and it would be
impossible to predict or guess in whose favour
the voters would have voted if they were aware
that the elected candidate was disqualified to
contest election or if he was not permitted to
contest the election by rejecting his nomination
paper on the ground of disqualification to contest
the election and what would have been the voting
pattern."
110. Indisputably, in the present case, there were in all
three candidates contesting the elections, i.e., the
appellant, the 4th respondent and the 5th respondent.
Thus, in light of the judgment of the Apex Court in the
case of Muniraju Gowda (supra), it is obvious that the
decision of the District Court in declaring that the 4th
respondent was be declared as the returned candidate
cannot be sustained and question (iii) is answered
accordingly. Accordingly, that portion of the judgment by
which the 4th respondent has been ordered to be
declared elected, is set aside.
111. In view of the above, this appeal is allowed in
part.
112. The decision of the District Court in setting aside
the election of the appellant as the Councilor to
represent Ward No.36, Yeraganahalli Ward of the Mysore
City Corporation is upheld.
113. The decision of the District Court in declaring that
the 4th respondent was to be declared elected in place of
the appellant is, however, set aside.
114. The concerned respondents shall take further steps
to hold fresh elections expeditiously.
Sd/-
JUDGE
PKS
