Sri Ponnam Prabhakar vs Sri Gangula Kamalakar
2023 Latest Caselaw 3713 Tel

    HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

       HON'BLE Dr. JUSTICE CHILLAKUR SUMALATHA
                ELECTION PETITION No.28 of 2019

BETWEEN:-
Sri Ponnam Prabhakar
S/ o Late Sri Ponnam Sathaiah,
Aged 51 years, Occ:Politician, R/ o H.No.7-2-990
Mankammathota, Karimnagar.
                                                         ...Petitioner
AND

1. Sri Gangula Kamalakar
  S/o Sri Gangula Mallaiah,
  Aged 50 years,Occ:- M L A,
  R/o H.No.3-1-227 Christian Colony,
[
  Karimnagar.

2. Election Commissioner of India
  rep by CEO Telangana State Telangana State Election
  Commission, 1st Floor, DTCP Opp. PTI Building,
  AC Guards, Hyderabad 500004.
    [The name of Respondent No.2 is deleted as per orders in I.A.No.4
    of 2019, dated 25.10.2019]

3. District Election Officer cum District Collector
   Karimnagar District, Mukarampura Karimnagar,
   Telangana 505001

4. The Returning Officer
   for 26 Karimnagar Constituency- cum- R D O Karimnagar,
   Karimnagar RDO Office, Main Road Karimnagar 50500.

    [ The names of Respondent Nos.3 & 4 are deleted as per
     orders in I.A.No.5 of 2019, dated 25.10.2019]
                                                     ...Respondents
                                       2
                                                                         Dr.CSL, J
                                                                E.P.No.28 of 2019



ORDER:

This Election Petition is filed seeking the Court to

declare the election of Respondent No.1 as Member of

Legislative Assembly for 26-Karimnagar Assembly

Constituency that was held on 07.12.2018 and declared on

11.12.2018 as null and void and consequently, to set-aside

the Telangana Gazette Notification No.20, insofar as

26-Karimnagar Assembly Constituency is concerned and to

disqualify respondent No.1 from contesting the elections for a

period of six years as envisaged under Sections 8A and 10A of

the Representation of People's Act, 1951.

2. The facts of the case as detailed in the Election Petition,

if narrated in a narrower compass, are that, an Election

Notification was issued for electing Members of Telangana

Legislative Assembly on 12.11.2018. The petitioner,

representing Indian National Congress Party, filed his

nomination papers on 14.11.2018. Respondent No.1, who

was sponsored by Telangana Rashtra Samithi Party, also filed

nomination papers for 26-Karimnagar Assembly

Constituency. Polling took place on 07.12.2018. Results of

Dr.CSL, J E.P.No.28 of 2019

Election were declared on 11.12.2018. Respondent No.1 was

declared to have been duly elected.

3. Respondent No.1, in contravention of Section-77 of

Representation of People's Act, 1951(hereinafter be referred to

as 'Act, 1951' for the sake of convenience of discussion), had

incurred excess expenditure. As per the day to day accounts

submitted by Respondent No.1, the total expenditure he

incurred was Rs.50,36,531.85 paise upto 07.12.2018 and the

same was duly certified by the Assistant Registrar by name

Mrs. K.Jamuna Rani, who was the Officer in the Accounting

Team. The maximum limit of Election expenses prescribed

under Rule 90 of Conduct of Election Rules, 1961 for the

Assembly Constituency is Rs.28,00,000/-. Respondent No.1

is involved in corrupt practices as envisaged under Section

123(6) of the Act, 1951 by spending more amount. Thus, the

election of respondent No.1, who had won the election

through corrupt practices, is liable to be declared as null and

void.

4. Respondent No.1 filed counter-affidavit denying the

allegations levelled against him and contending that the

Dr.CSL, J E.P.No.28 of 2019

petitioner has not pleaded the material facts as mandated

under Section 83(1)(a) of the Act, 1951 and therefore, the

petition filed by him cannot be treated as an Election Petition.

Respondent No.1 contended that the Election Petition does

not disclose any evidence to show that the account

particulars submitted by him are contrary and not in

accordance with the provisions of the Act, 1951. Respondent

No.1 also contended that the Election Petition does not

disclose any source of information with regard to his

involvement in the alleged corrupt practice. Respondent No.1

stated that he adhered to the ingredients of Section 77 of the

Act, 1951 by keeping a separate and correct account of all the

expenditure and that he incurred Rs.27,46,037.35 paise,

which is below the ceiling limit of Rs.28,00,000/-.

Respondent No.1 contended that the expenditure incurred

was verified, clarifications were taken and reconciled and the

final expenditure arrived at is Rs.27,46,037.35 paise.

Respondent No.1 submitted that the petitioner picked up and

had chosen material documents whichever suits to his case

and the total number pages in the document he relied upon is

"123". But the petitioner had filed upto "113" pages only.

Dr.CSL, J E.P.No.28 of 2019

The findings from Pages "113 to 123" would throw light upon

the issue in controversy. A mere vague and general statement

that the candidate spent money in excess to the permissible

ceiling limit would not be sufficient to constitute a corrupt

practice. Furthermore, the Election Petition is not supported

by the affidavit which is mandated under Rule 94A of the

Conduct of Election Rules, 1961 and therefore, the Election

Petition is liable to be dismissed.

5. Basing on the aforementioned pleadings, the following

issues were settled for discussion:-

(i) Whether Respondent No.1 has incurred the expenditure exceeding the permissible limit as contended by the petitioner and if so, whether the same amounts to a corrupt practice?

(ii) Whether there exist any grounds to declare the election of Respondent No.1 as a Member of Legislative Assembly for 26 Karimnagar Assembly Constituency as null and void?

(iii) Whether there exist any justifiable grounds to disqualify Respondent No.1 from contesting the elections as sought for?

     (iv)    To what result?

                                                               Dr.CSL, J
                                                      E.P.No.28 of 2019

6. The petitioner to establish his case, examined P.Ws.1

and 2 on his side and got marked Exs.P-1, X-1 and X-2. On

the other hand, respondent No.1 examined R.W-1 on his side

and got marked Ex.B-1.

7. P.W-1 is the petitioner. P.W-2 is Smt K.Jamuna Rani,

Assistant Registrar, Co-Operative Department, Karimnagar.

R.W-1 is Sri K.Jagadish Babu, Assistant Audit Officer

(Retired). Ex.P-1 is the notification issued by the Election

Commission of India, dated 12.11.2018. Ex.B-1 is the

certified copy of Register relating to Day-to-day Accounts of

the contesting candidates. Ex.X-1 is the proceedings of the

District Election Officer. Ex.X-2 is the Register relating to

Day-to-day accounts of the contesting candidates.

8. Heard Sri T.Surya Satish, learned counsel for the

petitioner, and Sri Sripada Prabhakar, learned senior counsel,

who argued on behalf of Sri B.H.Saivikas, learned counsel on

record for respondent No.1.

Issue No.1:-

9. Making his submission with regard to the merits of the

matter, learned counsel for the petitioner contended that the

Dr.CSL, J E.P.No.28 of 2019

petitioner belongs to Indian National Congress party and

respondent No.1 belongs to Telangana Rashtra Samithi party.

The petitioner and respondent No.1 contested for the election

of the Member of Legislative Assembly for 26-Karimnagar

Assembly constituency in the elections held on 07.12.2018.

Respondent No.1 was declared to have been duly elected.

However, respondent No.1 spent huge amount for getting

elected in contravention of the Act, 1951. The total

expenditure incurred by respondent No.1, as per official

records, was Rs.50,36,531-85 paise, where the ceiling limit is

Rs.28,00,000/-. The entire record which is present with the

Election Commission of India reveals that respondent No.1

incurred expenditure more than the permitted limit. Learned

counsel also contended that respondent No.1, by incurring

exorbitant and unpermitted expenditure, is guilty of adopting

a corrupt practice and therefore, his election is liable to be

declared as null and void.

10. Vehemently opposing the relief sought for, learned

senior counsel appearing for respondent No.1 submitted that

as per the provisions of the Act, 1951, burden rests upon the

person who files an Election Petition to establish that the

Dr.CSL, J E.P.No.28 of 2019

election of the declared candidate is null and void. Learned

senior counsel stated that false and misleading statements

which are not supported by concrete evidence should not be

taken into consideration. Learned senior counsel also stated

that when the ceiling limit for election expenses is

Rs.28,00,000/-, respondent No.1 had incurred a sum of

Rs.27,46,037-35 paise only and thus, there are no grounds to

allow the present Election Petition. Learned senior counsel

further submitted that the evidence produced by the

petitioner himself shatters his case. Learned senior counsel

also contended that when the crucial document i.e., Day-to-

day Accounts Register contains entries upto 123 pages, the

petitioner with a mala fide intention and to suit his case, filed

the Register upto 113 pages only, which itself goes to show

the fraud played upon the Court by the petitioner. Learned

senior counsel also stated that except the allegation that

respondent No.1 incurred more than the permitted

expenditure, there are no other allegations against him in the

Election Petition and the said allegation is also far from truth

and is not supported by any relevant material and thus, the

Dr.CSL, J E.P.No.28 of 2019

Election Petition is liable to be dismissed with exemplary

costs.

11. To come to a conclusion with regard to the genuineness

in the allegations levelled and the stand taken by the

contesting candidates, the evidence that is brought on record

plays a crucial and significant role.

12. P.W-1, in the affidavit given by him in lieu of his chief-

examination, stated that during the elections held on

07.12.2018, respondent No.1 had incurred total expenditure

in contravention of Section 77 of the Act, 1951, and as per the

day-to-day accounts submitted by respondent No.1, the total

expenditure incurred by him was Rs.50,36,531-85 paise and

the same was duly certified by P.W-2. P.W-1 stated that the

maximum limit of election expenditure prescribed under Rule

90 of the Conduct of Election Rules for Assembly

Constituency is Rs.28,00,000/- and respondent No.1 won the

election in a corrupt manner through corrupt practices and

as such, he is liable to be disqualified.

13. P.W-1 during the course of cross-examination stated

that he is familiar with the process of submitting the election

Dr.CSL, J E.P.No.28 of 2019

expenditure to the Election Officer and to his knowledge, the

maximum election expenditure to be incurred is about Rs.25

lakhs for the Member of Legislative Assembly. P.W-1 stated

that he do not have exact idea about the increased

expenditure. P.W-1 stated that he applied for the information

of the expenditure incurred by respondent No.1 through R.T.I.

after declaration of the result. P.W-1 stated that the record

submitted by him in the Election Petition contains 1 to 113

pages. When P.W-1 was questioned with regard to the

Accounts Statement consisting of 123 pages and about his

submission of 113 pages, he stated that he submitted the

record obtained by him through R.T.I. and it is for the Court

to verify the record submitted by the authorities. P.W-1 stated

that according to him, respondent No.1 spent more than

Rs.20 lakhs exceeding the prescribed limit. P.W-1 stated that

the expenditure incurred by the political party cannot be

added to the expenditure incurred by the candidate. P.W-1

stating that he is aware that political parties engages a star

campaigner who is recognized by the Election Commission of

India, admitted that the expenditure incurred in the meetings

of a Star campaigner will not be debited to the expenditure of

Dr.CSL, J E.P.No.28 of 2019

the contesting candidate alone. He stated that it will be

debited to all the candidates contesting on behalf of the party.

P.W-1 stated that except the record consisting of 113 pages

relating to the expenditure, he did not file any other

document to show that respondent No.1 exceeded the

maximum limit of expenditure. P.W-1 denied the suggestion

that though he is aware that respondent No.1 incurred

expenditure within the prescribed limit, only to harass

respondent No.1, he filed the present Election Petition.

14. The evidence of P.W-2 (mentioned as 'C.W-1' in the

deposition) by name K.Jamuna Rani is that she is working as

Assistant Registrar, Co-Operative Department, Karimnagar,

and in the year 2018, she received proceedings from the

District Election Officer and Collector, Karimnagar appointing

her as Member of Accounting team for the preparation of

election work and implementation of election expenditure

monitoring system by the Nodal Officers. She stated that

Ex.X-2-Register was maintained by her from the date of

nomination of the candidates till declaration of the result of

the election. The Assistant Expenditure Observer supplies all

the details of the expenditure incurred by the candidates and

Dr.CSL, J E.P.No.28 of 2019

the same was entered by her in Ex.X-2. She further stated

that the entries of expenditure which were disagreed by the

candidate will be referred to and settled by the District

Election Expenditure Monitoring Committee headed by the

Expenditure Observer.

15. P.W-2 during the course of cross-examination stated

that after the meetings of the District Election Expenditure

Monitoring Committee, the grand total of the expenditure

incurred by respondent No.1 arrived at was Rs.27,46,037-35

paise as entered in page 123 of Ex.X-2. She further stated

that it was reduced from Rs.34,21,718-35 paise to

Rs.27,46,037-35 paise. P.W-2 admitted that the expenditures

of the contesting candidates i.e., respondent No.1, the

petitioner and one Sri Bandi Sanjay Kumar were reduced

after reconciliation. P.W-2 admitted that the expenditure of

the petitioner was reduced in page Nos.104, 113, 114, 120,

121, 127, 128, 129 and 130 of Ex.X-2-Register. P.W-2

admitted that the District Election Expenditure Monitoring

Committee after reconciliation reduced the expenditures

incurred by the three leading candidates i.e., the petitioner,

Dr.CSL, J E.P.No.28 of 2019

respondent No.1 and Sri Bandi Sanjay Kumar after proper

scrutiny.

16. The evidence of R.W-1 i.e., Sri K.Jagadish Babu is that

he was working as Assistant Audit Officer at District Audit

Office, Telangana in the year 2018 and the District Election

Officer, Karimnagar appointed him as Assistant Expenditure

Observer in the Accounting team. R.W-1 stated that the other

members in the accounting team were P.W-2 and one

Sri Pavan Kumar. They monitored the other teams i.e., Video

Surveillance Team, Video Viewing Team, Flying Squad, Static

Surveillance Team, Media Certification and Monitoring

Committee, Control Cell, etc. He further stated that they get

reports from all the said teams and they maintain folder of

evidence. He also stated that the expenditure of all the

candidates will be entered in the respective Shadow

Observation Register. The maximum permissible expenditure

at that time was Rs.28,00,000/- per candidate contesting in

the Assembly elections. The initial expenditure of all the three

candidates, i.e., respondent No.1, the petitioner and Sri Bandi

Sanjay Kumar exceeded the permissible limit and on the

requisition of those candidates, the Director of Audio Visual

Dr.CSL, J E.P.No.28 of 2019

Publicity reduced the paper publication advertisements

estimates and thereby, the expenditures were reduced and it

came within the permissible limit. He stated that the said

Rule was applied to all the three candidates and thus,

respondent No.1 incurred expenditure of Rs.27,46,037.35

paise which is within the permissible limit. R.W-1 also stated

that the initial expenditure incurred by the petitioner and

respondent No.1 was above Rs.50,00,000/- and the

expenditure incurred by Sri Bandi Sanjay Kumar was above

Rs.49,00,000/-.

17. R.W-1 during the course of cross-examination stated

that he did not file the proceedings issued by the District

Election Officer, Karimnagar, appointing him as Assistant

Expenditure Observer. R.W-1 also stated that he has not filed

the proceedings of the District Election Expenditure

Monitoring Committee. During the course of re-examination,

R.W-1 stated that his name appears as Assistant Expenditure

Observer in the proceedings of the District Election Officer

and Collector, Karimnagar, vide Ex.X-1.

Dr.CSL, J E.P.No.28 of 2019

18. Before discussing with regard to the merits of the matter

basing on the evidence adduced, this Court is under

obligation to answer the point raised by the learned counsel

for the petitioner with regard to the counter filed by

respondent No.1. Learned counsel for the petitioner argued

that respondent No.1 is at liability to file a written statement

as per the provisions of the Act, 1951, but not a counter or

counter-affidavit and thus, the pleadings of respondent No.1,

which were filed by way of counter, should not be taken into

consideration. Learned counsel further contended that even

the said counter was not filed within time. In this regard,

learned counsel for the petitioner relied upon the decision of

the Hon'ble Apex court in the case between Kailash Vs.

Nanhku and others 1.

19. The petitioner did not raise any objection whatsoever

when counter was filed by respondent No.1 and when the

issues were settled basing on the pleadings of the parties.

Even at the time of adducing evidence or at any time

thereafter, no such objection was raised. Only while

advancing arguments, such a contention is raised. The

(2005) 4 SCC 480

Dr.CSL, J E.P.No.28 of 2019

nomenclature adopted for the pleadings filed by the opposite

party either as 'written statement' or 'counter', makes no

substantial difference so far as dealing with the matter on

merits is concerned. That apart, when no objection was raised

while receiving the counter by the Court, it cannot be

expected on part of the petitioner to raise such an objection at

a very belated stage i.e., at the time of arguments. Therefore,

the said objection needs no consideration.

20. Coming to the merits of the matter, the whole

contention of the petitioner is that respondent No.1, who is

under obligation to incur expenditure below the prescribed

limit or upto the prescribed limit of Rs.28,00,000/-, exceeded

such limit and incurred expenditure more than a sum of

Rs.50,00,000/-. Learned counsel for the petitioner argued at

length in respect of the said deviation.

21. The submission of learned senior counsel who appeared

for respondent No.1 is that petitioner had mislead the Court

by filing along with his pleadings, the certified copy of Ex.X-2-

Register only to the extent of 113 pages where the entries in

the Register are upto 123 pages.

Dr.CSL, J E.P.No.28 of 2019

22. A perusal of contents of Ex.X-2-Register reveals that the

grand total of expenditure incurred by respondent No.1 as

disclosed at page-113 of Ex.X-2 is Rs.50,36,531-85 paise.

However, after reconciliation, the said amount was reduced to

Rs.27,46,037-35 paise as could be found at page-123 of Ex.X-

2-Register. Admittedly, the genuineness of Ex.X-2-Register is

not in dispute.

23. P.W-2, who maintained Ex.X-2-Register and who gave

evidence as witness of the petitioner, herself stated that the

entries of expenditure which were disagreed by the candidates

will be referred to and settled by the District Election

Expenditure Monitoring Committee. She stated that after the

meetings of the District Election Expenditure Monitoring

Committee, the grand total of the expenditure incurred by

respondent No.1 was arrived at and entered as Rs.27,46,037-

35 paise at page-123 of Ex.X-2-Register. P.W-2 admitted that

the expenditures of the contesting candidates i.e., the

petitioner, respondent No.1 and Sri Bandi Sanjay Kumar were

reduced after reconciliation. There is no denial of the fact that

the expenditures entered in Ex.X-2-Register initially, were

reduced so far as the petitioner, respondent No.1 and Sri

Dr.CSL, J E.P.No.28 of 2019

Bandi Sanjay Kumar are concerned after proper scrutiny.

Also, it is not the case of the petitioner that such a procedure

is not contemplated under law or against the Rules and

Regulations governing the field.

24. R.W-1 corroborated the testimony of P.W-2. Neither in

the pleadings of the petitioner nor in the evidence of P.W-1

there is any concrete allegation supported by sufficient

documentary proof to show that respondent No.1 incurred

expenditure more than the permissible limit.

25. Stating that an unsupported statement cannot be taken

into consideration to declare the election of an elected

candidate as null and void, learned senior counsel who

appeared for respondent No.1 relied upon the decision of the

Hon'ble Apex Court in the case between Dhartipakar Madan

Lal Agarwal Vs. Rajiv Gandhi 2, wherein their Lordships at

para-20 of the judgment observed as under:-

"In order to constitute a corrupt practice as contemplated by Sections 77 and 123(6), it is necessary to plead requisite facts showing authorization, or undertaking of reimbursement by the candidate or his election agent. A mere vague and

1987(Supp) SCC 93

Dr.CSL, J E.P.No.28 of 2019

general statement that the candidate and his workers with his consent spent money in election in excess of the permissible ceiling would not be sufficient to constitute corrupt practice."

26. The petitioner in his pleadings contended that the

expenditure incurred by respondent No.1 to a tune of

Rs.50,36,531-85 paise was duly certified by P.W-2-K.Jamuna

Rani, Assistant Registrar, who was an Officer in the Accounts

team. However, the said officer who was examined as P.W-2,

on oath stated that the grand total of expenditure incurred by

respondent No.1 was arrived at Rs.27,46,037-35 paise. Also,

her evidence is supported by the contents of Ex.X-2 i.e., the

Register relating to day-to-day accounts of the contesting

candidates. Thus, the oral evidence produced by the

petitioner himself and the contents of Ex.X-2-Register fails to

support the plea of the petitioner. No other material is on

record to show that respondent No.1 incurred expenditure

exceeding the permissible limit, as contended by the

petitioner.

27. Thus, in the light of the foregoing facts and

observations, this issue is answered against the petitioner.

Dr.CSL, J E.P.No.28 of 2019

Issue Nos.2 and 3:-

28. In the light of the discussion that went on issue No.1,

this Court holds that there are no grounds whatsoever to

declare the election of respondent No.1 as Member of

Legislative Assembly for 26-Karimnagar Assembly

Constituency as null and void and consequently, to disqualify

him for contesting in the elections.

Issue No.4:-

29. In the result, this Election Petition is dismissed. Each

party do bear their own costs.

30. Miscellaneous petitions pending, if any, shall stand

closed.

Dictated to the Court Masters, typed by them, corrected and pronounced by me in the open Court on this, the 8th day of November, 2023.

________________________________________ Dr. JUSTICE CHILLAKUR SUMALATHA 08.11.2023 Ysk/dr

Dr.CSL, J E.P.No.28 of 2019

APPENDIX OF EVIDENCE

WITNESSES EXAMINED ON BEHALF OF

PETITONER:

P.W-1-Sri Ponnam Prabhakar,

P.W-2-Smt K.Jamuna Rani, Assistant Register, Co-Operative Department, Karimnagar

RESPONDENT No.1:-

R.W-1-Sri K.Jagadish Babu, Assistant Audit Officer (Retired)

EXHIBITS MARKED ON BEHALF OF PETITIONER:

Ex.P-1-Notification issued by the Election Commission of India, dated 12.11.2018.

Ex.X-1-Proceedings of the District Election Officer

Ex.X-2-Register relating to Day-to-day Accounts of the contesting candidates.

RESPONDENT No.1:

Ex.B-1-Certified copy of Register relating to Day-to-day Accounts of the contesting candidates.