Karnataka High Court
Mudiyappa S/O Ayyappa Bhagavati vs Basavaraj Alias Basappa S/O Shivappa ... on 10 January, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 107291 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
R
WRIT PETITION NO.107291 OF 2023 (LB-ELE)
BETWEEN:
MUDIYAPPA S/O. AYYAPPA BHAGAVATI
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O. CHOUDAPUR,
TQ: & DIST: BAGALKOTE-587115.
...PETITIONER
(BY SRI. SHIVRAJ S. BALLOLI, ADVOCATE)
AND:
1. BASAVARAJ @ BASAPPA
S/O. SHIVAPPA BHAGAVATI,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O. BHAGAVATI,
TQ: & DIST: BAGALKOTE-587103.
2. IRAWWA W/O. GIRIMALLAYYA HIREMATH,
AGE: 24 YEARS, OCC: HOUSEHOLD WORK,
R/O. CHOUDAPUR,
TQ: & DIST: BAGALKOTE-587115.
YASHAVANT
NARAYANKAR 3. MANJULA W/O. RUDRAYYA SARANGMATH,
AGE: 37 YEARS, OCC: HOUSEHOLD WORK,
Digitally
signed by
R/O. CHOUDAPUR,
YASHAVANT
NARAYANKAR TQ: & DIST: BAGALKOTE-587115.
4. GEETA W/O. GANGAPPA HOLEDASAR,
AGE: 27 YEARS, OCC: HOUSEHOLD WORK,
R/O. CHOUDAPUR,
TQ: & DIST: BAGALKOTE-587115.
5. YALLAWWA D/O. FAKIRAPPA MADAR,
AGE: 45 YEARS OCC: HOUSEHOLD WORK,
R/O. CHOUDAPUR,
TQ: & DIST: BAGALKOTE-587115.
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WP No. 107291 of 2023
6. BORAWWA D/O. KUDLAPPA KOTAGI,
AGE: 23 YEARS, OCC: HOUSEHOLD WORK,
R/O. CHOUDAPUR,
TQ: & DIST: BAGALKOTE-587115.
7. HEMAVATI W/O. YALLAPPA KALERI,
AGE: 37 YEARS, OCC: HOUSEHOLD WORK,
R/O. CHOUDAPUR,
TQ: & DIST: BAGALKOTE-587115.
8. BEERAPPA S/O. SANGAPPA BAIRMATTI,
AGE: 40 YEARS, OCC: HOUSEHOLD WORK,
R/O. CHOUDAPUR,
TQ: & DIST: BAGALKOTE-587115.
9. SIDDAPPA S/O. GANGADHAR BAIRMATTI,
AGE: 34 YEARS, OCC: HOUSEHOLD WORK,
R/O. CHOUDAPUR,
TQ: & DIST: BAGALKOTE-587115.
10. THE RETURNING OFFICER,
(S.S. BELAGALI),
FOR THE ELECTION OF
GRAM PANCHAYAT MEMBERS
CONSTITUENCY NO.7,
CHOUDAPUR VILLAGE OF GRAM PANCHAYAT,
BEVOOR, G.P. BEVOOR,
TQ: & DIST: BAGALKOTE-587115.
...RESPONDENTS
(BY SRI. PRAVEEN UPPAR, AGA FOR R2 & R10;
SRI. VIDYASHANKAR G. DALWAI, ADV. FOR CAVEATOR/R1;
NOTICE TO R2 TO R9 DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI QUASHING THE IMPUGNED JUDGMENT DATED
10/11/2023 PASSED BY THE LEARNED PRINCIPAL SENIOR CIVIL
JUDGE AND CJM, BAGALAKOTE, IN ELEC. P. NO.1/2021, VIDE
ANNEXURE-A, IN THE INTEREST OF JUSTICE AND EQUITY.
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WP No. 107291 of 2023
THIS PETITION IS COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioner is before this Court seeking the
following reliefs:
i. Issue a Writ of Certiorari quashing the impugned
judgment dated 10/11/2023 passed by the
learned Principal Senior Civil Judge and CJM,
Bagalkote, in Elec. P.No.1/2021, vide
Annexure-A;
ii. Pass any other order(s) as this Hon'ble Court
may deem fit in the interests of justice and
equity.
2. Respondent No.1 had filed an election petition against
the petitioner as also respondent Nos.2 to 10 in
E.P.No.1/2021, on the file of learned Prl. Senior Civil
Judge and CJM, Bagalkote challenging election of
petitioner to the Bevoor Gram Panchayath, Dist:
Bagalkote held on 27.12.2020.
3. The said Election Petition having been allowed and the
election of respondent No.1 having been declared void
the petitioner was respondent No.1 therein is before
this Court seeking for the aforesaid reliefs.
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4. The contention of Sri. Shivaraj S.Balloli is that, the
Trial Court completely misapplied itself inasmuch as
the allegation made against the petitioner was only
that he had not disclosed an acquittal in a criminal
proceedings. The submission in this regard is that it is
only if there is a conviction and or the said criminal
proceedings being pending that disclosure is required
to be made and not when the petitioner has been
acquitted since such acquittal absolves the petitioner
of all the liability. Secondly, he submits that the
objection filed by respondent No.1 to the nomination
form submitted by the petitioner was beyond
6:30 PM. The time having been fixed for receipt of
such objection being within 6:30 PM. Such objections
not having been received at nonest and the same
could not have been considered in the E.P.No.1/2021.
Thirdly, he submits that there were no issues and
points for consideration which was formulated by the
said Court prior to recordal of evidence. The points for
consideration were formulated by the Court only in
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the judgment dated 10.11.2023 and as such, there is
no opportunity which is available to the petitioner to
contest the said proceedings in a proper way. Lastly,
he submits that in terms of Section 19 of the Act
1993, it is only if results of the election be materially
effected that an election could be declared as void,
the non disclosure of the acquittal of the petitioner
could not have any such material impact and
therefore, the same would not constitute a ground
that declaration of the petitioner's election to be void.
On all these grounds, he submits that the above
petition is required to be allowed and the order
passed in E.P.No.1/2021 is required to be set-aside.
5. Learned counsel for respondent No.1 would submit
that it is not the objections which were filed to the
nomination paper submitted by the petitioner which
was considered but it was the election petition filed
under Section 15 of the Karnataka Gram Swaraj and
Panchayath Raj Act which was considered and orders
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passed. The grievances raised by respondent No.1 in
an election petition have been properly considered
and there can be no fault found thereto. His further
submission is that whether there is acquittal or
otherwise would make no difference inasmuch as
criminal proceedings having been filed ought to have
been disclosed in the nomination papers which would
have a material impact on the election to be
conducted. The parties being aware of the issues
and/or the grounds on which the election petition had
been filed, there is no further requirement of
formulating the issues and points for consideration,
the parties were aware of lis which has been raised
and as such, there is no prejudice which has been
caused to the petitioner by not framing issues/points
for consideration prior to evidence being led. On these
grounds, he submits that the petition is liable to be
dismissed.
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6. Heard learned counsel for both the parties and
perused the papers.
7. The points that would arises for consideration are:
1) Whether in the nomination form filed
by a candidate, the candidate would
have to disclose criminal proceedings
in which the candidate has been
acquitted or not?
2) Whether it is only when a finding of
the election being materially effected
could a declaration of the election
being void be issued?
3) Whether in the present facts non
formulation of issues or points for
consideration has caused prejudice to
the petitioner?
4) What order?
8. I answer the above points as under:
9. ANSWER TO POINT NO.1:-Whether in the
nomination form filed by a candidate, the
candidate would have to disclose criminal
proceedings in which the candidate has been
acquitted or not ?
9.1. The Hon'ble Apex Court in the case of
Democratic Union of India v. Association for
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Democratic Reforms and another with Peoples
Union for Civil Liberties and another v. Union of
India and another1 has categorically held that all
details of the candidate include those relating to
criminal proceedings would have to be disclosed
by a candidate in his nomination papers.
9.2. Though there was no particular requirement
under law at that point of time for disclosure of
criminal proceedings, it is by way of an order of
the Hon'ble Apex Court that it was mandated for
a candidate to disclose the details of the criminal
proceedings. The distinction that is now sought to
be drawn by Sri. Shivaraj S.Balloli, learned
counsel for the petitioner that what is required to
be disclosed is only where there was a conviction
and or the proceedings were pending is a
distinction in futility in as much as what the
Hon'ble Apex Court has directed is for disclosure
AIR 2002 SC 2112.
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of all criminal proceedings filed against the
candidate which in my considered opinion also
includes criminal proceedings where the
candidate has been acquitted since what is
important is that disclosure of information by a
candidate is to be made and for the electorate to
be aware of all relevant information as relating to
the candidate contesting in the election. The
aspect of conviction or otherwise and the period
of sentence may be relevant for disqualification of
the candidate, in so far as filing of nomination
forms what is required is full disclosure of all
aspects relating the candidate and his/her
immediate family. Thus, the distinction now
sought to be drawn between conviction and
acquittal or pendency and acquittal is a
distinction without any difference when the
aspect of disclosure being required to be made is
considered.
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9.3. I answer point No.1 by holding that whenever
any nomination forms are filed by any candidate,
the candidate would have to disclose all criminal
proceedings filed against the said candidate
irrespective of whether the candidate had been
acquitted or not, whether it is been quashed or
not.
9.4. The mere fact of filing of complaint and criminal
proceedings would suffice for such candidate to
disclose the same in his nomination form. If there
is no particular row or column in the said
application to enable disclosure or if the space
available is less than what is required, such
candidate could always make use of additional
sheets to disclose of particulars like crime
number, provisions under which allegations have
been made, who are all other co-accused, who is
de-facto complainant, the stage of the case if
pending, nature of disposal, date of disposal, if
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an appeal is filed and the details as regards
appeal, if proceedings have been quashed, set
aside etc.,
10. ANSWER TO POINT NO.2:- Whether it is only
when a finding of the election being materially
effected could a declaration of the election being
void be issued ?
10.1. When election is challenged to Gram Panchayat,
election petition is required to be filed under
Section 15 of the Act of 1993. The grounds of
such challenges are to be mentioned in the Act
and it is in terms of Section 19 thereof that a
declaration of election to be void is to be made.
10.2. In the present case, in the election petition
filed, the contention which has been taken by
respondent No.1 was that the petitioner has not
disclosed the criminal proceedings and
antecedents, which amounts to suppression
since electorate had right to know all criminal
antecedents. In the said petition, it was clearly
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stated in paragraph 8 about certain criminal
proceedings have been filed and in paragraph 9
about acquittal of the petitioner. The petitioner
in his objection had categorically taken a stand
that there was no need to disclose the acquittal
of the petitioner and only in the event there
being conviction that the disclosure was
required. Thus, it is clear that the petitioner has
admitted to criminal proceedings filed against
him where he has been acquitted.
10.3. Such being the case, the election petition
having been filed on the same ground, the
petitioner knowing the said ground, I do not
find any infirmity in the Trial Court not framing
the issues and or formulating the points for
consideration at the time of judgement. The
parties went to the trial knowing fully well the
lis between them and the conspectus of the
proceedings as also the consequences with
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regard non-disclosure of the criminal
proceedings.
10.4. One other fact that is to be considered is that
the petitioner led his evidence without objecting
to the nonframing of issues, thus there was no
impediment for the petitioner to lead evidence,
which has been so done, hence this issue
cannot be not raised having suffered an order.
10.5. Hence, I answer point No.2 by holding that in
the present case, non-framing of issues and or
non-formulating points for consideration before
evidence did not vitiate the proceedings.
11. ANSWER TO POINT NO.3:- Whether in the
present facts non formulation of issues or points
for consideration has caused prejudice to the
petitioner ?
11.1. The contention of Sri.Shivaraj Ballolli, learned
counsel for petitioner, it is only when the
election results would get materially affected
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that there is a duty of disclosure on the
candidate. On that premise, he submits that the
non-disclosure of the acquittal of the petitioner
in a criminal proceedings would not have any
material bearing on the election inasmuch as the
petitioner is being acquitted in the proceedings,
it is only if there is a conviction, that Section 19
(i)(d) of the Act would come into play materially
affecting the result. This argument is no longer
available in view of the decision of the Hon'ble
Apex Court in Democratic Union of India
(supra), wherein the Hon'ble Apex Court has
imposed duty of disclosure on each and every
candidate along with nomination form filed. The
concept of election being materially affected,
cannot be construed in a narrow sense but
should be construed in a broader sense
inasmuch as all details relating to particular
candidate should be made available to the
Electorate to make its own decision on the
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material available. Non-disclosure could also be
said to be suppression. Whether it is material or
not is for the electorate to decide. What the
petitioner was required to do was to disclose all
material facts including the fact of the petitioner
having been acquitted in criminal proceedings
filed.
11.2. Thus, I answer point No.3 by holding that the
duty cast on the candidate to disclose all
material facts cannot be read narrowly nor can it
be circumscribed by application of the concept of
election being materially affected in terms of
clause (d) sub-section (i) of Section 19 of the
Act of 1993.
12. In view of my answer to the above points, I am of the
considered opinion that there is non-disclosure by the
petitioner of the criminal proceedings which have
been filed against the petitioner, which has been
taken into consideration by the Trial Court in a proper
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perspective and as such, the said judgment of the
Trial Court cannot be found fault with.
13. The writ petition being devoid of any merits stands
dismissed.
14. In view of disposal of the petition, pending
interlocutory applications, if any, do not survive for
consideration and are disposed of accordingly.
Sd/-
JUDGE
AM, YAN
