Chaluvagali Raghavendra Raju, vs Srinivas Goud Virusanolla,
2023 Latest Caselaw 3026 Tel

            THE HONOURABLE SRI JUSTICE M.LAXMAN

                ELECTION PETITION No.23 of 2019
ORDER:

1. The present election petition is filed to declare the election

of respondent as declared by the Returning Officer on 11.12.2018 as

a Member of Telangana Legislative Assembly from Mahabubnagar

Assembly Constituency (No.74) of Mahabubnagar District as void and

to set aside the same.

2. The present petition is filed by the elector of the

Mahabubnagar Assembly Constituency. The election petitioner is

the voter in the final voter list published by the Returning Officer

and his serial number is 507 in booth No.128. The election of the

respondent is challenged on five grounds. The first ground is non-

disclosure of immovable property covered under sale deed

document bearing No.7704/2014 dated 02.09.2014 registered at

Sub-Registrar Office 1413, Mahabubnagar, relating to an extent of

land admeasuring Ac.0-31 guntas in Sy.No.259 of Palkonda Village,

Mahabubnagar Mandal and District, owned by the spouse of the

respondent. The second ground is non-disclosure of mortgage loan

of Rs.12,00,000/- obtained by the spouse of the respondent from

Andhra Pradesh Gramina Vikas Bank, Padmavati Colony Branch,

Mahabubnagar, in respect to landed property covered in Sy.No.259

ML,J E.P.No.23 of 2019

of Palkonda Village, Mahabubnagar Mandal and District. The third

ground is non-disclosure of bank account bearing No.52209878165 of

the spouse of the respondent maintained with State Bank of India,

Erragada Branch, Hyderabad, which contains balance of

Rs.8,180.50/-. The fourth ground is non-disclosure of loan availed

by the respondent for purchase of Toyota Fortuner vehicle bearing

registration No.TS-06-EL-6666 from HDFC Bank, Lala-1, Land Mark

MG, Ranigunj, Secunderabad. The said loan was availed by

hypothecation agreement dated 18.05.2016 for a period of three

years and such loan was in existence when the affidavit was sworn

by the respondent in Form No.26 filed along with nomination

papers. The fifth ground is that there was replacement of affidavit

filed along with the nomination papers by the respondent with

connivance of the Returning Officer.

3. The respondent was elected with a majority of 57,775 votes.

The number of votes secured by the each contesting candidates in

the elections is as follows:

       Sl.No.              Name                     Party         Votes
                                                                 Secured


                     Alias Babul Reddy

           3.      Chakali Satyanarayana         Siva Sena         179
           4.        T. Venkata Swamy          Independent         314

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                                                      E.P.No.23 of 2019

         5.         Srinivas Goud           TRS          86474
                     Virusanolla
         6.       Jagadeesh Chand       Independent       200
         7.       A Srisailam Yadav     Independent       280
         8.      Marepally Surender         NCP          11633
                        Reddy
         9.      Padmaja Reddy G.           BJP           5945
        10.      Mudavath Ravi Naik     Independent       513
        11.         V. Mallikarjun      Independent       234
        12.      Mohammed Imtiyaz       Independent       1147
                        Ahmed
        13.      M. Chandra Shekar         TDP           28699
        14.         Syed Ibrahim           BSP           21664
        15.             NOTA            None of the      1423
                                          above

4. The election petitioner claims that nomination of the

respondent was improperly accepted by the Returning Officer in

spite of non-disclosure of material required under law which are

substantial in nature for the purpose of Section 33 of the

Representation of the People Act, 1951, (for short 'the Act'). Thus,

the present election petition.

5. The pleadings of the respondent show that he disclosed all

immovable property held by his spouse. He admits that Form No.26

filed along with the nomination papers do not contain reference of

mortgage loan obtained by his spouse to a tune of Rs.12,00,000/-

from Andhra Pradesh Gramina Vikas Bank, Padmavati Colony

Branch, Mahabubnagar, and also the bank account being maintained

by his spouse with State Bank of India, Erragadda Branch,

ML,J E.P.No.23 of 2019

Hyderabad. He claimed that his spouse was doing independent

business and he was not a partner or involved in such business

transactions, as such, he had no knowledge with regard to loans

obtained by her. He has also pleaded that the account held by his

spouse with State Bank of India, Erragada Branch, Hyderabad, was

non-operative and he has no knowledge of liveness of such account.

The outstanding balance was only Rs.8,180.50/-.

6. The respondent also pleaded that in para No.8 of his affidavit

in Form No.26 in the relevant column, he has furnished that there

were nil dues by him to the banks and financial institutions. He

admits that he has availed loan for purchase of Toyota Fortuner

bearing No.TS-06-EL-6666 from the HDFC Bank, Ranigunj Branch,

Secunderabad; that the monthly installments were being paid

through electronic clearance from State Bank of Hyderabad (State

Bank of India), Secretariat Branch; that he was under bona fide

impression that the entire installments were cleared, as such, he

could not disclose details of such loan in the affidavit and that such

non-disclosure of account was under bonafide impression.

7. He has further pleaded that his assistant by name Raju used

to pay the installments of the said car, as such, he was under the

impression that his assistant has cleared the installments. It is also

ML,J E.P.No.23 of 2019

pleaded that such non-disclosure has not materially affected his

election. He has admitted that the details of votes polled to all the

contesting candidates as mentioned in the above tabular form is

correct and prayed to dismiss the present election petition.

8. The election petitioner to prove his case examined P.Ws.1 to

7 and Exs.A-1 to A-10 are marked. On behalf of the respondent, he

himself was examined as a R.W.1 and Exs.B-1 to B-6 are marked.

Exs.X-1 to X-7 are marked through witnesses summoned by the

election petitioner.

9. This Court initially framed three main issues, which are as

follows:

"1. Whether the affidavit submitted by respondent No.1 in terms of Annexure-3 in Form No.26 filed along with the nomination papers for election to Mahabubnagar Assembly Constituency contains suppression of details relating to the immovable property acquired by the spouse of respondent No.1 under sale deed bearing document No.7704/2014, mortgage loan of Rs.12,00,000/- availed by the spouse of the respondent No.1 from Andhra Pradesh Gramina Vikas Bank, Padmavati Colony Branch, Mahabubnagar by mortgaging title deeds pertaining to sale deed document bearing No.7704/2014 registered on the file of Sub-Registrar Office, Mahabubnagar, loan availed by the spouse of respondent No.1 for purchase of Toyota Fortuner vehicle bearing registration No. TS 06 EL 6666 and also details with regard of bank account of spouse of respondent No.1 i.e., Mrs. V. Sharada with the State Bank of India, Erragada Branch bearing account No.52209878165?

2. Whether respondent No.1 committed malpractice in collusion with the returning officer by replacing the affidavit submitted in Form No.26 along with nomination papers which were found defective? and;

ML,J E.P.No.23 of 2019

3. Whether the election of respondent No.1 is liable to be declared invalid on account of suppression and malpractice?"

10. Subsequently, the following additional issues were framed:

"1.Whether the election petition which is filed before this Court, was filed in person or not in compliance of Section 81 of the Representation of the People Act, 1950 (hereinafter referred to as 'the Act'?

2.Whether the absence of words 'True Copy' on every copy form part of Annexure in spite of signatures and attestation amounts to non-compliance of Section 81(3) of the Act?

3.Whether the petitioner has made out the grounds under Section 100 (1) of the Act?

4.Whether the compliances of the requirement of Section 81(1) and 81 (3) read with Section 86(1) of the Act with regard to filing of copies as many copies thereof as there are respondents and other non-compliance, after the original limitation of forty- five days, filing of EP is permissible?

5.Whether the Registrar has power to allow the election petitioner to rectify the defects in original Election Petition?

6.Whether the Election Petition lacks cause of action?"

11. Heard both sides.

Additional Issue No.1:-

12. Learned counsel for the respondent has contended that there

is no endorsement on the election petition that the election

petitioner was physically present when the election petition was

presented, as required under Section 81 (1) of the Act. It is also his

contention that the election petition has to be filed personally by

ML,J E.P.No.23 of 2019

the election petitioner before the Registrar, so that the Registrar

may make preliminary verification with the election petitioner to

see that the petition is neither frivolous nor vexatious. The

presence of the election petitioner is also required as and when the

election petition is re-presented. It is his contention that evidence

on record shows that the physical presence of the election

petitioner as claimed by him on the date of first presentation is not

proved. Similarly, at the time of re-presentation, the presence of

the election petitioner was also not proved. Therefore, compliance

of Section 81 (1) of the Act was not done.

13. Learned counsel for the election petitioner has contended

that the election petitioner and his advocate were personally

present at the time of presentation of the election petition. There

is no evidence that there was no physical presence of the election

petitioner. He has also contended that at the time of re-

presentation, the presence of the election petitioner is not

required, since the preliminary verification must have been done at

the time of first presentation. At the time of re-presentation,

presence of advocate of the election petitioner is sufficient and it

fulfills the requirement of Section 81 (1) of the Act. Therefore, the

objection raised by the respondent is liable to be rejected.

ML,J E.P.No.23 of 2019

14. In this regard, it is apt to refer to Section 81 of the Act,

which reads as under:

"Section: 81. Presentation of petitions:-

(1) An election petition calling in question any election may be presented on one or more of the grounds specified in 7 [sub- section (1)] of section 100 and section 101 to the 8 [High Court] by any candidate at such election or any elector within forty- five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates.

Explanation.--In this sub-section, "elector" means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.

(2) omitted.

(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition."

15. It is also relevant to refer to the Rules framed by this Court in

High Court Manual which regulate the trial of the election petitions

under the Act, which were framed in exercise of the powers

conferred by Clause 37 of the Letters Patent of the High Court of

Madras, Section 32 of the Andhra State Act, 1953, Section 129 of

the Code of Civil Procedure, 1908, and all other powers enabling

the High Court to frame the Rules. Rule No.3 of the above said

Rules is relevant and the same reads as under:

ML,J E.P.No.23 of 2019

"3. Every Election Petition shall contain, in addition to particulars required by Section 83 of the Act, information as to the date of the election of the returned candidate or if there be more than one returned candidate at the election and the dates of their election are different, the later of the two dates and shall also show that the Election Petition is within the time prescribed by Section 81 of the Act.

It shall be filled in the office of the Registrar by the petitioner or an advocate duly appointed by him. In addition to the number of copies required by sub-section (3) of Section 81 of the Act, the petitioner shall file two more copies of the petitioner for Court record. He shall also file a certificate from the Head Accountant in token of having made the deposit required by Section 117 of the Act.

The Chief Scrutiny Officer in the Registry should see to affix the date stamp on each page of the Election Petition and copies of the Election Petition as well as the Annexures of the Election Petition filed along with the Election Petition to indicate the date of receipt of those papers by the Scrutiny Officer Section, before sending those papers to O.S. Section on that day itself. So, also the Chief Scrutiny Officer in the Registry shall see to put the date stamp whenever fresh papers are filed.

The Scrutiny Officer while checking the Election Petitions should indicate clearly about the defects he noticed on the presentation of the Election Petition, more particularly regarding the number of copies of the Election Petition, more particularly regarding the number of copies of the Election Petition, the Annexures, affidavit in Form No.25, verification by the Election Petitioner or by the Oath Commissioner as the case may be and other particulars."

16. A reading of Section 81 (1) of the Act, it is clear that the

election petition shall be presented by any candidate at such

election or any elector of such constituency. The word 'by' has

been interpreted by the Apex Court in G.V. Sreerama Reddy v.

Returning Officer1, wherein it was held that use of word 'by'

(2009) 8 SCC 736

ML,J E.P.No.23 of 2019

indicates physical presence of the election petitioner at the time of

filing of the election petition. The object was to ensure the

genuineness and curtail vexatious litigation. For that purpose, the

presence of the election petitioner is required for preliminary

verification. This means, the statutory requirement mandates

presence of the election petitioner at the time of filing of the

election petition. However, Rule No.3 framed by this Court to

regulate trial of the election petition shows that the election

petition shall be filed in the office of the Registrar by the election

petitioner or by advocate duly appointed by the election petitioner.

This Rule is running contrary to the statutory requirement of

physical presence of the election petitioner at the time of filing of

the election petition, as contemplated under Section 81 (1) of the

Act.

17. The Supreme Court in Cooperative Central Bank Limited v.

Additional Industrial Tribunal2, Babaji Kondaji Garad v. Nasik

Merchants Coop. Bank Ltd.3 and Central Industrial Tribunal v. Taj

Mahal Hotel, Secunderabad4, held that if there is conflict between

the statutory provisions and Rules, the Rules must give in and the

Act must prevail. Such Rule, which is in conflict with statutory

(1969) 2 SCC 43

(1984) 2 SCC 50

(1971) 3 SCC 550

ML,J E.P.No.23 of 2019

provision, requires to be ignored. The statutory provision has

precedence and must be complied with. The Rules are made for

carrying out the provisions of the Act. The Rules cannot take out

what was conferred by the Act or whittle down its effect.

18. No doubt, Rule No.3 framed by this Court permits the

election petitioner to file the election petition by himself or

through advocate appointed by him. This Rule is against the

statutory requirement, and if this Rule is accepted, it whittles down

the effect of Section 81 (1) of the Act. Therefore, the election

petitioner cannot take shelter under said Rule No.3 and he has to

comply with the requirements of Section 81 (1) of the Act.

19. The endorsement on the election petition is not indicative

with regard to presence or absence of the election petitioner.

Therefore, some kind of evidence must be brought on record by the

election petitioner to establish his presence at the time of filing of

the election petition. The purpose of presence of the election

petitioner has been indicated by the Apex Court. The presence

facilitates preliminary verification with the election petitioner to

ensure genuineness of his claim of the election petitioner and to

avoid frivolous and vexatious litigation. The endorsement on the

election petition does not refer to any such preliminary verification

ML,J E.P.No.23 of 2019

either by the Registrar or any officer of the Registry. The

endorsement only refers to receipt and sealing and nothing more

than that.

20. The evidence of P.W.1 i.e., the election petitioner is silent

with regard to his presence at the time of filing of the election

petition. However, in the cross-examination, P.W.1 claims that he

was present on the date of filing of the election petition i.e., on

24.01.2019 in the concerned section along with his advocate. The

election petition was presented on 24.01.2019 and it was returned

on 28.02.2019 with 15 objections. The evidence of P.W.1 shows

that on two occasions, he was present in the High Court premises.

The first occasion was on 24.01.2019 and the second occasion was

on 23.03.2019. This means, at the time of re-presentation on

06.03.2019, the election petitioner was not physically present. The

election petitioner has not examined the advocate with whom he

was present on the date of filing of the election petition. His chief

examination is also silent with regard to physical presence along

with his advocate. Such claim has been only made by him in his

cross-examination.

21. Learned counsel for the respondent brought to the notice of

this Court that circumstances made out from the evidence

ML,J E.P.No.23 of 2019

improbablize the presence of the election petitioner along with his

advocate when the election petition was presented. The first

circumstance is that the original election petition shows that the

verification was done on 23.01.2019, whereas the annexure shows

that verification was done on 24.01.2019. The attestation was done

by notary Challari Nageswara Rao, Advocate, who is resident of HIG-

I, B-4, F-12, Baghlingampally, Hyderabad-44. The bank receipts and

lodgment schedule show initials of the advocate, and they do not

show the signatures of the election petitioner.

22. The second circumstance brought to the notice of this Court

is that admittedly, for entry into the premises of this Court,

security gate pass was required. The election petitioner did not

assertively say that he obtained gate pass from the security on

24.01.2019. In cross-examination, he admitted that security gate

pass is required to enter into the High Court premises, but it was

not required to enter into the filing section. This means, he admits

requirement of gate pass for entering into the High Court.

23. The other circumstance was that he was unable to say

affirmatively that whether documents were notarized on one day or

on the different dates. He has also claimed that notary was done

by the side of Gate No.6 of the High Court and he also admitted

ML,J E.P.No.23 of 2019

that the address of the notary advocate is shown as

Baghlingampally.

24. Learned counsel for the respondent, by bringing the above

circumstances, tried to contend that those circumstances clearly

improbablize the claim of P.W.1 that he was physically present

along with his advocate on the date of filing of the election

petition.

25. In the present case, initially, receiving officer had not noted

whether the election petition was filed by the election petitioner or

his advocate. In the absence of such endorsement, the evidentiary

burden is on the election petitioner to prove his physical presence

with advocate on the date of presentation of the election petition.

26. In the present case, in fact, no claim has been made in the

chief-examination of P.W.1, in spite of knowledge of preliminary

issue in this regard was raised, much before commencement of

trial. Such issue was postponed by framing additional issue, so that

the parties were given full opportunity to establish the requirement

under Section 81 (1) of the Act.

27. In the present case, in spite of framing such an issue, P.W.1

did not plead in his chief-examination about his physical presence.

ML,J E.P.No.23 of 2019

The election petition does not refer about his physical presence.

The only rightful person is either the officer, who received the

election petition or the advocate with whom the election petitioner

claimed to have accompanied on the date of filing of the election

petition.

28. In the present case, these two crucial witnesses have not

been introduced in the evidence with regard to presence of the

election petitioner. P.W.1 only claimed in the

cross-examination about his presence along with his advocate.

Except the same, there is no other evidence. However, the

circumstances put forth by the respondent in the

cross-examination of P.W.1 show absence of security gate pass,

which admittedly is required for entering into the premises of this

Court and there is no signature of the election petitioner on the

deposit slip of the State Bank of India (Hyderabad), which is

situated in the High Court premises, and also in the lodgment

schedule. They only refer to the presence of advocate.

29. The other circumstance was attestation by notary. The

election petitioner could not able to claim affirmatively whether

the verification of the election petition and documents was done on

one day or different days. The election petition shows that the

ML,J E.P.No.23 of 2019

verification was done on 23.01.2019 and the affidavit and other

documents were attested on 24.01.2019. The election petitioner

claims that attestation was done at Gate No.6 of this Court, since

the notary advocate was having his office at Gate No.6. There is no

evidence to the effect that the notary advocate has set up his

office in the premises of this Court and that any permission is

granted by this Court to establish his office at Gate No.6. Further,

the office seal of the notary advocate shows that he is resident of

Baghlingampally and that his office is in Baghlingampally. The seal

disclose attestation was done at Baghlingampally. The claim of the

election petitioner that attestation was done in the premises of this

Court can also be doubted by his own admission. According to

P.W.1, he has first time come to this court on 24.01.2019, the date

of presentation of the election petition. Attestation of election was

done on 23.01.2019 which is one day prior to filing of the election

petition.

30. The circumstance brought out by the respondent

improbablizes claim set up by the election petitioner that he was

physically present along with his advocate on the date of filing of

the election petition. The evidence also shows that the election

petition was returned on 28.02.2019 and it was re-presented on

ML,J E.P.No.23 of 2019

06.03.2019. Admittedly, the election petitioner visited this Court

on 24.01.2019, and next, on 23.03.2019. This means, on

06.03.2019, he was not present. In the cross-examination, P.W.1

admitted that there is slight difference in his signatures at page

Nos.93 and 94 when compared with that of page Nos.84 to 92. The

objection No.7 of return endorsement shows that signature of the

election petitioner was not on all papers. This means, this variation

in signature might be on account of his absence when the

attestation was done by notary on the date mentioned therein.

There is no proper explanation from the election petitioner as to

why there was variation in the signatures in those papers.

31. All these circumstances make out that the claim set up by the

election petitioner is improbalized by the respondent. Further,

admittedly, he was not present at the time of re-presentation. The

presentation includes re-presentation and when the law insists for

physical presence as and when there was presentation. The physical

presence is also essential at the time of re-presentation.

Therefore, the election petitioner has not substantially complied

with Section 81 (1) of the Act. Accordingly, this issue is answered

against the election petitioner.

ML,J E.P.No.23 of 2019

Additional issue No.2:

32. The main contention of the learned counsel for the

respondent in this regard is that the copies which are accompanied

with the election petition are only bearing the signature of the

election petitioner and there is no incorporation of words 'true

copy', which amounts to non-compliance of Section 81(3) of the

Act. It is also his contention that copies served to the respondent

contain blanks in verification. Therefore, he sought dismissal of the

election petition on this ground alone.

33. On the contrary, learned counsel for the election petitioner

has contended that there is signature of the election petitioner on

the copies served to the respondent, and mere omission of words

'true copy' is not fatal to the case. He has further contended that

it is not the case of the respondent that copies received were not

substantially similar to the original election petition and Annexures

filed in the Court. As there was substantial compliance, the

election petition cannot be dismissed on that ground. He has relied

upon the decisions of the Apex Court in Umesh Challiyill v. K.P.

Rajendran5 and Mithilesh Kumar Pandey v. Baidyanath Yadav6.

(2008) 11 SCC 740

(1984) 2 SCC 1

ML,J E.P.No.23 of 2019

34. A reading of the above decisions, it is clear that the defects

in verification, non-serving of proper copies and non-bearing of

signatures in the papers of the election petition at one or two

places are minor defects which are curable. But, in the true copies

if any vital and material variations are found from the original

petition, the election petition suffers from fatality.

35. The Apex Court had an occasion to deal with the intended

purpose of true copy in T.M.Jacob v. C.Poulose7 and held that the

test to determine whether a copy was a true one or not was to find

out whether any variation from the original was calculated to

mislead a reasonable person. It is further held that the word 'copy'

does not mean absolutely exact copy. It means, a copy so true that

nobody can by any possibility misunderstand it. The true test

whether the copy is a true or not is whether any variation from the

original is calculated to mislead an ordinary person.

36. In the present case, there is signature of the election

petitioner on the copy served to the respondent, which is not in

dispute. The words 'true copy' are missing. There is nothing on

record to show that any material variations are found in the copies

when compared with the original petition. Therefore, such

MANU/SC/0271/1999

ML,J E.P.No.23 of 2019

objection is not tenable. There is substantial compliance of

requirement of Section 81(3) of the Act. Accordingly, this issue is

answered in favour of the election petitioner.

Additional issue Nos.4 and 5:

37. Learned counsel for the respondent in this regard has

contended that the objections which were taken for returning the

election petition indicate that respondents' copies which are

required to be filed under Section 81(3) of the Act were not filed.

This is made out from objection No.14 of the scrutiny section.

According to learned counsel for the respondent, if the election

petition is not in order, the Registrar is obligated to place such

election petition in SR stage and place the matter before the

concerned Court dealing with the election petitions so as to pass

appropriate orders.

38. Learned counsel for the respondent has also contended that

such material defects, if any, can be cured within limitation of 45

days which is the limitation for filing the election petition.

According to him, in the present case, there is no substantial

compliance of Section 81(3) of the Act in filing as many copies

thereof as there are respondents mentioned in the election

petition. According to him, such a requirement has not been

ML,J E.P.No.23 of 2019

substantially complied with and such compliance was done after 45

days i.e., on 06.03.2019, which is beyond the original limitation.

39. Learned counsel for the respondent has further contended

that the Registrar is not competent to extend the time for

compliance and it is the Judge who is dealing with the election

petitions is competent to extend the time for curing the defect, if it

is a curable one. He has further contended that if the defects are

incurable, the Judge has also no power to extend the time. In

support of his contention, the learned counsel for the respondent

has relied upon the following decisions:

1. Sharif-ud-din v. Abdul Gani Lone.8

2. Mani C. Kappan v. K.M.Mani.9

3. Mangani Lal Mandal v. Bishnu Deo Bhandari.10

4. Prem Singh Rathore v. T. Raja Singh and others.11

5.F.A. Sapa v. Singora.12

6. Ravi Namboothiri v. K.A. Baiju.13

7. Mary Thomas v. Anil Akkara.14

8. G. Devarajegowda v. Prajwal Revanna alias Prajwal R.15

(1980) 1 SCC 403

2006 SCC OnLine Ker 504

(2012) 3 SCC 314

E.P.No.15 of 2019 of TS HC.

(1991) 3 SCC 375

2022 SCC OnLine SC 1550

2017 SCC OnLine Ker 8796

AIR Online 2020 Kar 138

ML,J E.P.No.23 of 2019

9. Kanimozhi Karunanidhi v. A. Santhana Kumar.16

10. People's Union for Civil Liberties v. Union of India.17

11. M. Manohar Reddy v. Union of India.18

12. P. Leela Rani v. Agency Divisional Officer, Bhadrachalam, Khammam District.19

40. Conversely, learned counsel for the election petitioner has

contended that non-filing of copies as many copies thereof as there

are respondents mentioned in the election petition is a curable

defect and it is not fatal so as to dismiss the election petition at the

threshold. He has also contended that for the fault of the Registry

in returning the election petition for compliance of objections by

granting time is a mistake on the part of the Court and the election

petitioner cannot be penalized for any such mistake done by the

Court. He has further contended that the defects pointed out by

the respondent, as referred in the objections, are curable and

minor defects which can be cured within the time extended by

either the Registry or the Court.

41. In support of his contention, the learned counsel for the

election petitioner has relied upon the following decisions:

1.Umesh Challiyill (cited 5th supra).

2023 SCC OnLine SC 573

(2003) 4 SCC 399

(2013) 3 SCC 99

2002 SCC OnLIne AP 804

ML,J E.P.No.23 of 2019

2. Abdulrasakh v. K.P.Mohammed.20

3. Chandrakant Uttam Chodankar v. Dayanand Rayu Mandrakar.21

4. Kisan Shankar Kathore v. Arun Dattatray Sawant.22

5. S. Rukmini Madegowda v. State Election Commission.23

6. Madiraju Venkata Ramana Raju v. Peddireddigari Ramachandra Reddy.24

7. Mithilesh Kumar Pandey (cited 6th supra).

8. Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore.25

9. CH. Subbarao v. Member Election Tribunal, Hyderabad.26

10. Krishnamoorthy v. Sivakumar.27

42. The Constitutional Benches of the Apex Court in Ch.Subbarao

(cited 26th supra) and Murarka Radhey Shyam Ram Kumar (cited

25th supra) have laid down the principle of substantial compliance in

dealing with Section 81(1) and 81(3) of the Act and it has been held

that when there was a substantial compliance, there is no need to

dismiss the election petition for non-compliance of Section 81(1)

and 81(3).

(2018) 5 SCC 598

(2005) 2 SCC 188

(2014) 14 SCC 162

2022 SCC OnLine 1218

(2018) 14 SCC 1

(1964) 3 SCR 573

(1964) 6 SCR 213

(2015) 3 SCC 467

ML,J E.P.No.23 of 2019

43. Section 81(3) of the Act requires number of copies

as there are number of respondents. Rule (3) of the High Court

Election conduct rules requires two additional copies. Rule (6)

require same number of copies as there were number of

respondents to send through registered post in addition to regular

process to be served through Nazarath of local Court where the

respondent stays.

44. In the present case, objection No.14 refers complete non-

filing of respondents' copies. Complete non-filing of copies as

required under Section 81(3) of the Act is not substantial

compliance. Substantial compliance would arise, if copies are

atleast filed as required under Section 81(3) of the Act. However,

non filing of additional copies as required under the Rules of High

Court may not entail dismissal of the election petition and such non

compliance can be cured. Even if there are any other defects in

the copies which were filed, they are all minor and curable defects.

Completely ignoring of filing copies in terms of Section 81(3) did not

amount to substantial compliance.

45. Now, the question is whether such a compliance of Section

81(3) of the Act can be allowed to be cured by either the Registrar

or the Court after limitation period is completed.

ML,J E.P.No.23 of 2019

46. A clue can be get from the decision of the Apex Court in

T.M.Jacob's case (cited 7th supra), wherein while interpreting the

copy of original, it was held that when the copy differs with the

original material particulars, it cannot be treated as true copy of

original and such vital defect cannot be permitted to be cured after

expiry of limitation period. This means, incurable defects cannot

be cured after limitation and such defects, if any, can only be

carried out within 45 days.

47. In the present case, complete non-filing is not a substantial

compliance. Such defect must have been cured within the

limitation and they are not minor defects which can be allowed to

be cured in the extended period.

48. The Apex Court in Abdulrasakh's case (cited 20th supra) had

an occasion to deal with the aspect of curing of the defects raised

by the Registry, wherein it was held that only curable and

typographical errors can be allowed to be corrected after limitation

but within the time prescribed and minor defects can also be

corrected after limitation, but within the extended time granted by

either the Registrar or the Court.

ML,J E.P.No.23 of 2019

49. In the present case, the defects pointed out are complete

infraction of Section 81(3) of the Act and such defects are incurable

after limitation is completed. The requirement of Section 81 of the

Act is that the election petition must be filed in order within time.

Only minor curable defects are permitted to be cured and the

material defects are not permitted to be cured. Therefore, non-

compliance of filing of copies as many as respondents are there, is a

complete infraction and the same cannot be cured after limitation

is completed. I hold that such defects are incurable after

limitation.

50. In the present case, the Assistant Registrar returned the

election petition by extending time. The time extended is seven

days and such extension was done on 28.02.2019. Even though the

limitation for filing the election petition expired on 25.01.2019, the

Assistant Registrar extended the time, which is not permissible

under the Rules. In this regard, Rule 4 of the Election Petition

Rules framed by this Court is relevant and it reads as under:

"4. If the Election Petition is not found in order, the office shall post the election petition in the SR stage with office objections before the Court for orders."

51. A reading of the above Rule, it mandates the office to post

the election petition in SR stage with office objections before the

ML,J E.P.No.23 of 2019

concerned judge for orders. It is for the concerned judge to decide

whether the objections raised are curable or incurable. If the Court

feels that the defects are not material defects and they are

curable, the Court can extend the time as held by the Apex Court in

Abdulrasakh's case (cited 20th supra). However, in the present

case, the Assistant Registrar acted without jurisdiction.

52. The fault of the Registry is an act of the Court, and for the

act of the Court, no one shall suffer. In this regard, it is apt to

refer to the decision of the Apex Court in A.R.Antulay v.

R.S.Nayak28, whereunder it was held that it is a settled principle

that an act of the Court shall prejudice no man. This maxim actus

curiae neminem gravabit is founded upon justice and good sense

and affords a safe and certain guide for the administration of the

law.

53. In the present case, though the Assistant Registrar had no

power, he extended the time. For such a mistake, the election

petitioner cannot be made to suffer. Hence, I hold that the time

granted by the Assistant Registrar can be said to be a mistake on

the part of the Court and the same shall not go to the prejudice.

(1988) 2 SCC 602

ML,J E.P.No.23 of 2019

54. In the present case, material compliance was not done within

limitation and there is no substantial compliance within the original

limitation. The defects which are carried out in pursuance of the

extension of time by the Assistant Registrar and if they are minor,

they can be allowed to be cured even after limitation. The

objections of registry except objection No. 14 are minor defects

and they can be cured even after limitation.

55. In the present case, there is a complete disregard of filing of

copies as required. Therefore, this Court finds that there was

complete non-compliance of Section 81(3) of the Act in filing

number of copies as there were respondents. Such non-compliance

results dismissal of the election petition. Accordingly, this issue is

partly answered in favour of the election petitioner and partly in

favour of the respondent.

Main issue No.2 and Additional issue No.6:

56. The pleadings of the election petitioner show that the

election is challenged on the ground of non-disclosure. Apart from

the same, there is ground of malpractice i.e., replacement of

affidavit in Form No.26.

ML,J E.P.No.23 of 2019

57. In the present case, cause of action relating to non-disclosure

has been properly pleaded and the cause of action relating to

replacement of affidavit has not been properly pleaded. There are

no details with regard to the person actually involved in

replacement of affidavit except general allegation that the

respondent, in connivance with the Returning Officer, replaced the

affidavit. The act of replacement amounts to malpractice. The

basis for such an allegation was Ex.X-3, report of District Revenue

Officer, Mahabubnagar, dated 11.12.2021 and such report reference

is also not pleaded.

58. The author of Ex.X-3 is P.W.6. The report shows that

nomination along with the affidavit in Form No.26 was uploaded on

the website on 14.11.2018 and nomination papers along with

affidavit in Form No.26 by the election petitioner dated 19.11.2018

were also uploaded. There is a deletion of some data. According to

report of P.W.6, this must have been done by the Returning Officer.

The cross-examination of P.W.6 shows that such a conclusion was

arrived on the basis of information given by Murali and Kiran, staff

of election section of Returning Officer. They worked in the

election duties at the relevant point of time. The evidence of

P.W.7, the Returning Officer, shows that there is no deletion.

ML,J E.P.No.23 of 2019

59. The case of the election petitioner is not with regard to

deletion, but with regard to replacement of the affidavit. There is

no evidence of replacement of the affidavit and it is a case of

alleged deletion. The clarification made by the Election

Commissioner shows that certain information, which is not relavant,

do not visible online and same cannot be said to be deleted. The

proper persons to explain about the deletion are Murali and Kiran,

but they were not examined. The evidence of P.W.6 and report is

based hear-say evidence. Such evidence is contrary to the evidence

of P.W.7, the Returning Officer. Therefore, it is not established

that there is replacement of any affidavit.

60. In the course of arguments, learned counsel for the election

petitioner has not pressed issue No.2 in view of the clarification

made by the Election Commissioner. Seeing from any angle, I found

that there is no replacement of any affidavit.

61. The pleadings relating to non-disclosure are clearly and

specifically pleaded. Such pleadings make out cause of action.

Therefore, it cannot be said that there is no cause of action.

Accordingly, I hold that the pleadings make out cause of action.

ML,J E.P.No.23 of 2019

Main issue Nos.1 and 3 & Additional Issue No.3:

62. The election petitioner challenged the election of the

respondent on the grounds of non-disclosure. According to the

election petitioner, the respondent did not disclose in Form No.26

about the details of (i) property purchased by his spouse under sale

deed dated 7704/2014 in respect of land admeasuring Ac.0-31

guntas in Sy.No.259 of Palkonda Village, Mahabubnagar Mandal and

District, (ii) mortgage loan of Rs.12,00,000/- availed by the spouse

of the respondent from Andhra Pradesh Gramina Vikas Bank,

Mahabubnagar, (iii) loan availed by the respondent for purchase of

Toyota Fortuner bearing registration No.TS-06-EL-6666 from HDFC

Bank, Ranigunj, Secunderabad, and (iv) bank account being

maintained by his spouse with State Bank of India, Erragadda

Branch, Hyderabad.

63. Dealing with non-disclosure of immovable property, learned

counsel for the election petitioner has contended that the

properties in Sy.Nos.258, 259, 268/5/A, 268/A1 and 269/A of

Palkonda Village were purchased under seven documents. Out of

them, two documents are dated 02.09.2014, but the document

No.7704/2011 relating to land admeasuring Ac.0-31 guntas in

ML,J E.P.No.23 of 2019

Sy.No.259 was referred. According to him, this amounts to non-

disclosure.

64. Learned counsel for the respondent has contended that the

respondent purchased the total extent of land admeasuring Ac.5-34

guntas in the above survey numbers under the seven sale deeds.

Out of them, two sale deeds dated 02.09.2014 and other five sale

deeds are dated 05.01.2015, 06.08.2015, 09.10.2015 and

20.09.2016. The alleged non-disclosure of land admeasuring

Ac.0-31 guntas forms part of Ac.5-34 guntas. This has been

admitted by P.W.1 in his cross examination. According to the

learned counsel for the respondent, the only grievance of the

election petitioner is that when two sale deeds are of same date,

the election petitioner ought to have referred two dates, but not a

single date.

65. The admission of P.W.1 shows that entire extent of lands

relating to Palankonda village covering Sy.Nos.258, 259, 268 and

269 are Ac.5-34 guntas. Ac.0-31 guntas of land is also part of total

extent of Ac.5-34 guntas. There is complete disclosure of entire

extent of land held by the spouse of the respondent relating to

Palakonda village covering the above said survey numbers. The only

grievance of the election petitioner is that land admeasuring

ML,J E.P.No.23 of 2019

Ac.0-31 guntas which was purchased on 02.09.2014 was in addition

to other extent purchased on 02.09.2014. According to him, when

the dates of sales are mentioned, the respondent should have

mentioned two dates i.e., 02.09.2014 and 02.09.2014. This stand

of the election petitioner appears to be illogical. In Form No.26,

there is no requirement of mentioning the sale deed document

numbers. Total extent of land purchased by spouse is mentioned

and dates of purchase are also mentioned. They are substantial

compliance. There is no suppression. Therefore, this Court finds

that the details of the immovable properties are correctly

disclosed.

66. With regard to mortgage loan of Rs.12,00,000/- availed by

the spouse of respondent No.1 from Andhra Pradesh Gramina Vikas

Bank, Mahabubnagar and the bank account being maintained by his

spouse with State Bank of India, Erragadda Branch, Hyderabad, the

said details are admittedly not referred in Form No.26. The

defence of the respondent is that the spouse is having independent

business and he is not participating in such business and having no

knowledge about availment of mortgaged loan by his spouse.

Similarly, he took the defence that he has no knowledge that

account was still in operative relating to State Bank of India,

ML,J E.P.No.23 of 2019

Erragadda Branch, Hyderabad. According to the respondent, such

account is not to his knowledge, and in fact, it is a non-operative

account from long time.

67. The verification of the affidavit with regard to non-disclosure

reads as under:

"VERIFICATION

I, the deponent, above named, do hereby verify and declare that the contents of this affidavit are true and correct to the best of my knowledge and belief and no part of it is false and nothing material has been concealed therefrom. I further declare that:

(a) There is no case of conviction or pending case against me other than those mentioned in items 5 and 6 of Part A and B above;

(b) I, my spouse, or my dependents do not have any asset or liability other than those mentioned in items 7 and a of Part A and items 8, 9 and 10 of Part B above.

Verified at Mahabubnagar, on this the 19th day of November, 2018.

DEPONENT"

68. A reading of the above verification shows that the facts

mentioned is based to the best of knowledge and belief of the

deponent. This means, there is no affirmative requirement about

the facts stated in the affidavit. The statement of affidavit is

based on best of knowledge and belief of the deponent. Form-26 is

in compliance of Rule 4-A of the Conduct of Election Rules, 1961.

The said Rule was introduced in pursuance of direction given by the

ML,J E.P.No.23 of 2019

Apex Court in Union of India v. Association for Democratic

Reforms and Another29 and the relevant portion of the judgment

reads as under:

"42. To sum up the legal and constitutional position with emerges from the aforesaid discussion, it can be stated that:-

1. The jurisdiction of the Election Commission is wide enough to include all powers necessary for smooth conduct of elections and the word 'elections' is used in a wide sense to include the entire process of election which consists of several stages and embraces many steps.

2. The limitation on plenary character of power is when the Parliament or State Legislature has made a valid law relating to or in connection with elections, the Commission is required to act in conformity with the said provisions. In case where law is silent, Article 324 is a reservoir of power to act for the avowed purpose of having free and fair election. Constitution has taken care of leaving scope for exercise of residuary power by the Commission in its own right as a creature of the Constitution in the infinite variety of situations that may emerge from time to time in a large democracy, as every contingency could not be foreseen or anticipated by the enacted laws or the rules. By issuing necessary directions Commission can fill the vacuum till there is legislation on the subject. In Kanhiya Lal Omar's case, the Court construed the expressions "superintendence, direction and control" in Article 324(1) and held that a direction may mean an order issued to a particular individual or a precept which may have to follow and it may be a specific or a general order and such phrase should be construed liberally empowering the election commission to issue such orders.

3. The word "elections" includes the entire process of election which consists of several stages and it embraces many steps, some of which have an important bearing on the process of choosing a candidate. Fair election contemplates disclosure by the candidate of his past including the assets held by him so as to give a proper choice to the candidate according to his thinking and opinion. As stated earlier, in Common Cause case (supra), the Court dealt with a contention that elections in the country are fought with the help of money power which is gathered from black sources and once elected to power, it becomes easy to collect tons of black money, which is used for retaining power and for re-election. If on affidavit a candidate is required to disclose the assets held by him at the time

2002 (3) ALD 90 (SC)

ML,J E.P.No.23 of 2019

of election, voter can decide whether he could be re-elected been in case where he has collected tons of money

Presuming, as contended by the learned senior counsel Mr. Ashwini Kumar, that this condition may not be much effective for breaking a vicious circle which has polluted the basic democracy in the country as the amount would be unaccounted. May be true, still this would have its own effect as a step-in-aid voters may not elect law- breakers as law-makers and some flowers of democracy may blossom.

4. To maintain the purity of elections and in particular to bring transparency in the process of election, the Commission can ask the candidates about the expenditure incurred by the political parties and this transparency in the process of election would include transparency of a candidate who seeks election or re-election. In a democracy, the electoral process has a strategic role. The little man of this country would have basic elementary right to know full particulars of a candidate who is to represent him in Parliament where laws to bind his liberty and property may be enacted.

5. The right to get information in democracy is recognised all throughout and it is natural right flowing from the concept of democracy. At this stage, we would refer to Article 19(1) and (2) of the International Covenant of Civil and Political Rights which is as under:-

"(1) Everyone shall have the right to hold opinions without interference.

(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice."

6. Cumulative reading of plethora of decisions of this Court as referred to, it is clear that if the field meant for legislature and executive is left unoccupied detrimental to the public interest, this Court would have ample jurisdiction under Article 32 read with Article 141 and 142 of the Constitution to issue necessary directions to the Executive to subserve public interest.

7. Under our Constitution, Article 19(1)(a) provides for freedom of speech and expression. Voters's speech or expression in case of election would include casting of votes that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is must. Voter's (little man- citizen's) right to know antecedents including criminal past of his candidate contesting election for MP or MLA is much more fundamental and basic for survival of democracy. The little man may

ML,J E.P.No.23 of 2019

think over before making his choice of electing law breakers as law makers.

43. In this view of the matter, it cannot be said that the directions issued by the High Court are unjustified or beyond its jurisdiction. However, considering the submissions made by the learned counsel for the parties at the time of hearing of this matter, the said directions are modified as stated below.

44. The Election Commission is directed to call for information on affidavit by issuing necessary order in exercise of its power under Article 324 of the Constitution of India from each candidate seeking election to Parliament or a State Legislature as a necessary part of his nomination paper, furnishing therein, information on the following aspects in relation to his/her candidature:-

(1) Whether the candidate is convicted/acquitted/ discharged of any criminal offence in the past-if any, whether he is punished with imprisonment or fine?

(2) Prior to six months of filing of nomination whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the Court of law. If so, the details thereof. (3) The assets (immovable, movable, bank balances etc.) of a candidate and of his/her spouse and that of dependants. (4) Liabilities, if any, particularly whether there are any over dues of any public financial institution or Government dues. (5) The educational qualifications of the candidate."

69. The requirement to refer the details of liability, assets and

criminal antecedents is in compliance of Article 19(1)(a) of the

Constitution of India which provides for freedom of speech and

expression. Such expression includes voter's speech or expression

in case of election. The voter speaks out or expresses by casting

vote. For that, he has right to know antecedents. Such a

requirement is found fundamental and basic for survival of

democracy.

ML,J E.P.No.23 of 2019

70. A right to privacy is also one of the facets of Article 21 of the

Constitution of India. Under the law, husband and wife are

independent personalities. Each one is entitled to have his/her own

secrecy. Such a right is provided under Article 21 of the

Constitution of India. The wife has every right to have her own

privacy with regard to assets and liabilities. The disclosure pre-

supposes existence of knowledge. This means, non-disclosure

would attract when the person who non-disclosed had knowledge

about the fact non-disclosed.

71. In the present case, the entire case of the election petitioner

is that the mortgage loan and the bank account of the spouse of the

respondent were not referred in the election affidavit.

72. The plea set up by the respondent is that he has no

knowledge about the mortgage loan obtained by his spouse and also

the account being maintained by her with State Bank of India,

Erragadda Branch, Hyderabad.

73. The facts relating to mortgage loan and bank account with

State Bank of India, Erragadda branch, Hyderabad, of the spouse of

the respondent were not referred in the election affidavit filed in

Form No.26. When the defence of the respondent is that he had no

ML,J E.P.No.23 of 2019

knowledge about such facts, the burden is on the election

petitioner to establish that the respondent is aware of such facts.

To establish the said aspects, some kind of evidence must be

brought on record by the election petitioner which attributes

knowledge of such facts to the respondent. However, such

evidence is lacking in the present case. The only evidence adduced

by the election petitioner is that such disclosure was not made in

Form No.26. The disclosure of such facts would arise when the

person who did not disclose had knowledge about existence of such

a fact. Existence of fact to the knowledge of the respondent must

be established by the election petitioner.

74. In this case, such evidence is lacking. Therefore, it cannot be

said that non-disclosure relating to availment of loan and existence

of account of the spouse of the respondent attract penal

consequences.

75. The other ground raised by the election petitioner is that the

respondent has not disclosed the loan pertaining to Toyota Fortuner

bearing registration No.TS-0-6EL-6666 from HDFC Bank, Ranigunj

Branch, Secunderabad.

ML,J E.P.No.23 of 2019

76. There is no doubt that the respondent had obtained loan from

HDFC Bank, Ranigunj Branch, Secunderabad, for purchase of the

said car and the said car is in the name of the respondent. It is also

admitted fact that in paragraph No.8 of Form No.26 with reference

to the loans of the respondent with the banks/financial institutions,

it is shown as 'nil'. In fact, there is a loan standing to the credit of

the respondent. The defence of the respondent in this regard is

that he was under the impression that his loan was cleared. This

contention is untenable for the reason that when the respondent

was conscious about the hypothecation and loan period, he cannot

contend that he was under the impression that all installments are

cleared since payment of monthly installments are by electronic

process. Such non-disclosure might be on account of negligence or

deliberate one.

77. Now, the question is whether this non-disclosure falling under

one of the grounds contemplated under Section 100 of the Act so as

to set aside the election of the respondent?

78. In this regard, it is relevant to refer to Section 100 of the Act

which reads as under:

ML,J E.P.No.23 of 2019

"100. Grounds for declaring election to be void:-

(1) Subject to the provisions of sub-section (2) if the High Court is of opinion:-

(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of 1963); or

(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or

(c) that any nomination has been improperly rejected; or

(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected--

(i) by the improper acceptance or any nomination, or

(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or

(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or

(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act,

the High Court shall declare the election of the returned candidate to be void.

(2) If in the opinion of the High Court, a returned candidate has been guilty by an agent other than his election agent, of any corrupt practice but the High Court] is satisfied--

(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent, of the candidate or his election agent;

(b) omitted

ML,J E.P.No.23 of 2019

(c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and

(d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the High Court may decide that the election of the returned candidate is not void."

79. For the purpose of present case, the case of the election

petitioner must fall under Section 100(1)(b) or 100(1)(d)(iv). In

pursuance of amendment to the Conduct of Election Rules, 1961,

Rule 4-A was inserted which mandates requirement of disclosure of

antecedents, assets and liabilities. However, there is no

consequential amendment specifically making incorporating such a

ground to declare the election as void.

80. Some of the judgments of the Apex Court say that

non-disclosure amounts to undue influence as contemplated under

Section 123 of the Act and some of the judgments say that it falls

under non-compliance of requirement of Section 100(1)(d)(iv) of the

Act.

81. The Apex Court in S.Rukmini Madegowda (cited 23rd supra),

by referring to its earlier decision in Lok Prahari v. Union of

ML,J E.P.No.23 of 2019

India30, held that non-disclosure would amount to undue influence

which in turn amounts to corrupt practice.

82. In this regard, it is relevant to refer to Section 123 of the Act

which defines corrupt practice and it reads as under:

"Section 123: Corrupt practices:-

The following shall be deemed to be corrupt practices for the purposes of this Act:--

(1)......

(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person [with the consent of the candidate or his election agent], with the free exercise of any electoral right:

Provided that--

(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who--

(i) thereatens any candidate or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or

(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure,

shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;

W.P ©. No.784 of 2015, dated 16.02.2018

ML,J E.P.No.23 of 2019

(b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause.

(3) to (8) xxx

83. A reading of sub-section (2) of Section 123, undue influence

has been stated in general. Proviso thereof contains certain

presumptions relating to certain acts on the part of the candidate

or his agent, or any other person with the consent of the candidate

or his election agent. One of such acts is that threatening to

candidate or any elector or any person in whom candidate or an

elector is interested, with injury of any kind including social

ostracism and excommunication or expulsion from any caste or

community. The other acts of inducement or attempt to induce a

candidate or an elector to believe that he or any person in whom he

is interested will become or will be rendered an object of divine

displeasure or spiritual censure. The allegations are falling under

exceptions, then, the presumption is that there is undue influence.

In any other case, the person who pleads corrupt practice by undue

influence must establish the act of non-disclosure has directly or

indirectly interfered or attempted to interfere with free exercise of

any electoral right. Proviso (b) of section 123 of the Act says that

declaration of public policy or promise of public action, or the mere

ML,J E.P.No.23 of 2019

exercise of a legal right without intention of interfere with an

electoral right shall not be deemed to be interference.

84. Section 100 of the Act also makes distinction between the

corrupt practices committed by returned candidate or his election

agent or by any other person with the consent of such persons.

Then on proof of such corrupt practice, the election of such

candidate can be declared void. Section 100 (1)(d)(ii) of the Act

also deals with corrupt practice which is less aggravated compared

to corrupt practice under section 100(1)(b) of the Act. Under

section 100(1)(d)(ii) of the Act, corrupt practice is committed in the

interest of returned candidate by agent other than election agent

and apart from proof of corrupt practice, it has to be proved that

such corrupt practice materially affected the election of returned

candidate. From proved facts, an inference of materially affected

can be drawn.

85. Further, Section 100(2) of the Act carves out an exception

that if the High Court is satisfied that no corrupt practice was

committed at the election by the candidate or his election agent

and every such corrupt practice was committed without consent of

the candidate or his election agent, then the High Court may decide

that the election of the returned candidate is not void.

ML,J E.P.No.23 of 2019

86. The word 'undue influence' was also found in Section 16 of

the Indian Contract Act, 1872, which is also one of the grounds to

vitiate the free consent of party to the contract. The presumption

under Section 16 of the Indian Contract Act, 1872, with regard to

undue influence is available. "Undue influence" generally means,

one of the parties is in a position to dominate the will of the other

and uses that position to obtain an unfair advantage over the other.

87. Section 123 (2) of the Act defines undue influence in general

and certain acts are presumed to constitute undue influence and

such presumption is rebuttable. Non-disclosure of assets and

liabilities are not acts and omissions falling under the proviso, so as

to extend the presumption with regard to undue influence. This

means, undue influence must be pleaded and proved by the party,

who assails the election of the returned candidate.

88. Undue influence in the context of Section 123 (2) of the Act

in general, required any direct or indirect interference or attempt

to interfere by the candidate or his agent, or of any other person

with the consent of the candidate or his election agent, with the

free exercise of any electoral right. In the context of facts in the

present case, non-disclosed information is car loan and withholding

ML,J E.P.No.23 of 2019

of such information must be proved to have created any direct or

indirect interference with free exercise of any electoral right. This

means such acts and omissions of withholding information must

have elated the position of returned candidate to dominate the will

of the electors and uses such position either directly or indirectly to

obtain an unfair advantage by causing or attempt to cause

interference in free exercise of any electoral right of voters.

89. In this regard, it is relevant to refer Section 83 of the Act,

which reads as follows:

83. Contents of petition:-

(1) An election petition--

(a) shall contain a concise statement of the material facts on which the petitioner relies;

(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and

(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:

Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.

(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition

ML,J E.P.No.23 of 2019

90. A reading of above provision, it is clear that whenever corrupt

practice is pleaded, full particulars of such corrupt practice, date

and place of such corrupt practice must be pleaded and separate

affidavit has to be filed in this regard.

91. In the present case, the election petitioner did not plead

corrupt practice and did not file any affidavit indicating allegation

of corrupt practice. Further, petitioner has not placed any evidence

to show how non-disclosure created undue influence and vitiated

free exercise of electoral rights of any voters. This must be proved

by placing some evidence. The presumption of undue influence is

not available infavour of the election petitioner. Absolutely,

evidence is lacking in the present case. There is no evidence from

any voter who exercised his electoral right in favour of returned

candidate to say that if such information was disclosed, he would

not have casted his vote in favour of returned candidate.

92. Form-26 shows that the respondent disclosed criminal

antecedent. Similarly, the respondent has also disclosed the

vehicle which is in his name and ownership document (Registration

Certificate) reflects endorsement of hypothecation to HDFC Bank.

There is no evidence that there were any defaults in payment of

loan amount. The evidence also shows that from the entire loan

ML,J E.P.No.23 of 2019

amount availed only three lakhs and odd was due by the time when

the election affidavit was filed. Most of the loan amount was

cleared from the State Bank of India (Hyderabad), Secretariat

Branch, Hyderabad, of the respondent. Such account shows

availability of Rs.28 lakhs and odd. In the background of such facts,

non-disclosure of vehicle loan has not proved to have impacted free

exercise of electoral rights by the voters. The respondent has

secured the majority of 57,775 votes in spite of disclosure of

criminal cases pending against him.

93. The evidence on record shows that the vehicle purchased by

the respondent is hypothecated. Such endorsement was in

existence when Form No.26 was filed. However, no bank officials

of HDFC Bank were introduced in the evidence. No details as to

how much loan amount was availed towards purchase and how

much amount is still due were given. When the ownership of the

vehicle is given in the affidavit, the ownership document itself

indicates hypothecation of the vehicle meaning thereby existence

of loan. No doubt, there is a reference of "nil" in the column meant

for loan obtained by the respondent from banks or financial

institutions. However, every act of undue influence is not corrupt

practice. When such an act of undue influence which has a

ML,J E.P.No.23 of 2019

capacity to affect the free exercise of electoral rights of the voters,

then only such act amounts corrupt practice. For proof of that,

some pleading and evidence is required since the presumption is not

available to the election petitioner. Absolutely, there is no

evidence on record except evidence to prove non-disclosure.

Therefore, I hold that there is no corrupt practice.

94. Non-compliance of requirement to furnish full details as

required under Rule 4-A of the Conduct of Election Rules, 1961,

amounts to one of the grounds referred to in Section 100 (1) (d) (iv)

of the Act. To establish the grounds enumerated under Section 100

(1) (d) of the Act, apart from proving of grounds, there must be

evidence to show that such an act materially affected the election

of the returned candidate. Seeing from the votes polled to various

candidates and majority obtained by the respondent, in spite of

disclosure of criminal antecedents, non-compliance of Rule-4A, in

the circumstances of this case has not materially affected the

election of the returned candidate. The election petitioner failed to

prove that non-compliance of Rule 4-A of the Conduct of Election

Rules, 1961, has materially affected the election of the respondent.

Therefore, the election of the respondent cannot be set aside on

the ground of non-disclosure of loan availed by the respondent.

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95. In the result, the Election Petition is dismissed. There shall

be no order as to costs. Miscellaneous petitions pending, if any,

shall stand closed.

________________ JUSTICE M.LAXMAN Date: 10.10.2023 TJMR