Telangana High Court
Mr. K. Madan Mohan Rao vs Mr. Bheemrao Baswanthrao Patil, And 15 ... on 19 April, 2024
THE HON'BLE SRI JUSTICE SAMBASIVARAO NAIDU
ELECTION PETITION No.34 OF 2019
ORDER:
This is an Election Petition filed by the petitioner
under Section 81 & 84 r/w Section 100 (1) (d) (i) (iii) & (iv)
of The Representation of the People Act, 1951 (for short
"Act, 43 of 1951") to declare the election of the 1st
respondent to 05-Zaheerabad Parliamentary Constituency
which was declared by the Returning Officer on 23.05.2019
as null and void and set aside the same by holding that the
1st respondent has disqualified to the election held on
11.04.2019, to declare the petitioner herein as the elected
candidate from 05-Zaheerabad Parliamentary Constituency
and to award costs of the election petition from respondent
No.1.
2. As could be seen from the brief averments made
in the petition, the petitioner has pleaded that in
pursuance of the election notification for General Elections
to the House of People (Loksabha), election to Zaheerabad
Parliament Constituency was conducted on 11.04.2019.
The petitioner contested for the said election as an official
candidate of the Indian National Congress Party (INC) and
the 1st respondent was the nominee of Telangana Rashtra
Samithi (for short "TRS"). Apart from these two candidates,
there were ten(10) more candidates contested for the same
Constituency. The 1st respondent herein was declared to
have been elected from Zaheerabad Parliamentary
Constituency by a meager majority of (6229) votes and the
petitioner has claimed that he has secured a total of
(428015) votes and the 1st respondent had secured
(434244) votes. The petitioner has given the details of all
the candidates who have contested the election in a tabular
form which is extracted hereunder:
Sl. Name Party Votes
No. Secured
1. B.B.Patil Telangana Rashtra 434244
Samithi (TRS)
2. Banala Lakshma Bharatiya Janata 138947
Reddy Party (BJP)
3. Madan Mohan Rao Indain National 428015
Congress (INC)
4. Alige Jeevan Bahujan Mukit Party 6366
5. Kalesh Bhartiya Anarakshit 6339
Party
6. Mark Babu India Praja Bandhu 1573
Party
7. Mohammed Nawaz Ambedkar National 1712
Congress
8. Srinivas Goud KasalaPyramid Party of 1279
India
9. Nangunoori Latha Independent 1869
10. Benjamin Raju Independent 3281
11. Mudiraj Venkatesham Independent 5581
12. Ramarao Patil 4019
13. NOTA None of the above 11170
Total:- 1044365
3. The petitioner having obtained a copy of results
declared from the official website of Election Commission of
India annexed the same to his petition.
4. The petitioner has claimed that the 1st
respondent furnished false information in Form No.26
(Election Affidavit), thereby he has lied on oath and the
same was accepted by the Returning Officer without
conducting any due diligence. Therefore, the election of
respondent No.1 is liable to be set aside.
5. The petitioner has also claimed that respondent
No.1 did not follow the guidelines issued by the Election
Commission of India dated 10.10.2018. According to the
said rules, the contesting candidates are required to
disclose all the criminal cases pending or previously
convicted by publishing them in any news channels and
news papers as per the directions of the Hon'ble Supreme
Court of India in Public Interest Foundation and Others
vs Union of India and Another vide Writ Petition
(Civil).No.536 of 2011.
6. The petitioner while extracting Para Nos.11 and
12 of the above referred Judgment in the election petition
further averred that in pursuance of the said directions,
the Election Commission gave directions to be complied
with by the candidates at elections to the house of
Parliament and Houses of State Legislature. According to
the directions, the candidates have to furnish the details of
both pending and previously decided criminal cases
wherein they were convicted. The petitioner has alleged
that the 1st and 2nd respondents failed to follow the above
referred guidelines in disclosing all the criminal cases and
if those details were correctly disclosed, the petitioner
herein would have clearly won the election as the 1st
respondent won the election only by a meager margin of
(6229) votes.
7. The petitioner had calmed that respondent No.1
and 2 have employed deceptive means and misguided the
electorate of this nation. The petitioner has also claimed
that as per the guidelines referred above, the candidates
shall submit the copies of the newspapers in which their
declarations were published. But, as per the C-4
document submitted by 1st respondent, there was no such
publication of pending and convicted criminal cases of
respondent No.1, which clearly shows the manipulation
done by respondent No.1 in publication. The petitioner has
alleged that the font size mentioned in C-1 was not in
accordance with the guidelines of the Election Commission.
The 1st respondent who is supposed to publish the details
in widely circulated newspaper, published the details in
English in a Telugu newspaper i.e., Andhra Prabha dated
30.03.2019 and Mana Telangana on 08.04.2019.
Therefore, it goes to show that respondent No.1 with a
malafied intention to deceive the electorate made the above
referred publications which is against the letter and spirit
of the guidelines of the Election Commission.
8. The petitioner has also submitted that as per
Section 6-A of FormNo.26, and according to the guidelines
of the Election Commission, the 1st respondent is supposed
to give the details of criminal cases separately for each case
in a separate row. But, the respondent No.1 published 18
different cases in three(3) rows with six(6) cases in each
row in a small font to make it look like only three(3) cases
are pending against him. Thereby, it is violation of
guidelines of Election Commission. The 1st respondent
failed to publish the cases in widely circulated newspapers,
but the publications made by respondent No.1 were not as
per the said guidelines. The 1st respondent failed to
disclose certain criminal cases wherein he was convicted
and also pending criminal cases in Form No.26.
9. It is also alleged in the Election Petition that the
1st respondent is suppose to disclose the criminal cases in
television. But, he has disclosed only three(3) cases
pending in Mumbai Court on Metro TV. The 1st respondent
who is popularly known as B.B.Patil in the Constituency
and who has used the same name in the campaign, when it
came to the disclosure of criminal cases in the newspapers,
he chose to used full name as Bheemarao Basawantharao
Patil. Therefore, the use of different identity, a less known
identity in the disclosure of criminal cases goes to show his
intention to deceive the electorate. Therefore, the petitioner
has claimed that the 1st respondent did not disclose all the
criminal cases as required under the guidelines issued by
Election Commission. He did not publish the details in the
required font. There was no proper publication of the
criminal cases in the Television Media and he has used a
different name/identity while publishing details of the
criminal cases. The petitioner has claimed that the above
violation was only with a view to deceive the electorate. If
the petitioner discloses the correct details, he would have
lost the election and the petitioner would have won the
same.
10 The petitioner has also claimed that respondent
Nos.1 and 2 intentionally kept the voters of Zaheerabad
Parliamentary Constituency in dark by not disclosing
pending/convicted criminal cases. The conduct has not
only made the election unfair for the voters, but also for
the competing candidates. Therefore, the petitioner has
been put to grave disadvantage. As such, the declaration
made by the Returning Officer in favour of the 1st
respondent is liable to be set aside, consequently, to
declare the petitioner herein as elected candidate from the
said Constituency.
11. The 1st respondent opposed the Election
Petition filed by the petitioner herein on various grounds.
The 1st respondent has claimed that the petitioner failed to
present the election petition in person as required under
Section 81 (1) of Act 43 of 1951. The 1st respondent has
also claimed that the petitioner, who is supposed to file
authenticated copies in support of his claim, filed only
photocopies/copies obtained from the website without a
petition required under Section 65 B of Indian Evidence
Act. He has also claimed that the grounds raised by the
petitioner are not valid grounds for allowing the petition to
declare the election of 1st respondent as void. The 1st
respondent has also claimed that he has disclosed all the
information with regard to criminal cases both pending and
disposed. He was not accused in the cases as alleged by
the petitioner. Therefore, on all these grounds sought for
dismissal of the Election Petition.
12. Initially the following issues were framed by this
Court on 10.08.2023:
1. Whether the nomination of 1st respondent/Returned
candidate was improperly accepted by the Returning
officer?
2. Whether the respondents No.1 and 2 by deceptive means
misguided the electorate which resulted the election
declared in favour of the 1st respondent?
3. Whether the election of the returned candidate is liable
to be set aside for violation of Election Commission
guidelines dated 10-10-2018, formulated pursuant to the
Judgment of the Hon'ble Supreme Court in Public
Interest Foundation and Others vs. Union of India (2019
(3) SCC P-224)?
4. Whether the non-disclosure of the pending Criminal
cases in Crime report No.96 P dated 20-03-2013 of
GARHWA REVENUE CENTER for illegal Mining and non-
disclosure of the two convicted cases before SDJM
porahat at Chaibsa would amount to non-compliance
with the provisions of Rule 4-a of Conduct of Election
Rules and guidelines of Election commission of India?
5. Whether the non-disclosure of pending criminal cases
and convicted cases in the news media on TV Channels
by the respondents No.1 and 2 amount to deception and
misguiding the electorates, thereby, violates the rights of
voters under Article 19(1)(a) of Constitution of India,
thereby, amounts to undue influence under Section
123(2) of the Representation of Peoples Act.
6. Whether the publication of information in the news
papers is not in the font size of 12 and news papers of
Telugu language the information was published in
English and 18 cases were published amounts to deceive
the electorate?
7. Whether the news papers in which the returned
candidate published the information are not widely
circulated and the TV Channels are not mostly viewed?
8. Whether the returned candidate has given his full name
which is popular in the news papers and TV Channels to
mislead the Electorate?
9. Whether the 2nd respondent used different identities of
the 1st respondent to deceive the Electorate?
10. Whether in case, the declaration of election in favour of
the returned candidate is declared as null and void and
invalid, whether the petitioner is entitled to be declared
as elected for 05. Jaheerabad, Parliamentary
Constituency?
11. Whether the written submissions/written statement filed
by the returned candidate on 31-12-2021 is beyond the
prescribed time under Order XIII Rule 1 C.P.C., thereby
the same cannot be considered?
13. However, in view of the objections raised by the
learned counsel for the respondent No.1, and in view of the
petition filed by the respondent under Order 14 Rule 5 r/w
151 C.P.C., the following additional issues were framed on
21.08.2023:
1. Whether the election petition has been presented by the
petitioner physically and personally in accordance with the
provisions of Section 81(1) of the RP Act, 1951 and the petition
filed by the petitioner is in compliance with Section 81(3) of the
R.P.Act, 1951?
2. Whether the petitioner has complied with the provisions of
Section 82 in as much as the petitioner has also claimed a
declaration in addition to the relief to declare the election of the
1st respondent/returned candidate to be void and he be further
declared to be duly elected?
3. Whether the petition filed by the petitioner discloses any
material about the corrupt practices or undue influence by the
1st respondent as required under Section 123 of the Act for the
purpose of maintaining the present Election Petition?
4. Whether the petitioner has set forth the grounds required
under Section 100(1) of the Act for challenging the
election of the returned candidate?
5.Whether the election petition is liable to be dismissed on the
ground that there is no averment to the effect that the result of
the election of the returned candidate is materially affected by
the non-compliance of the provisions of the said act, rules or
orders?
6. Whether there is any Non-disclosure, material suppression
out Criminal offences or convictions by the first respondent in
the election petition prescribed under Section 33(A)(i) and (ii) of
the Act invalidating the election of the 1st respondent?
14. After this election petition was posted for trial,
with the consent of both parties, one retired District Judge
by name S.V.Nath Reddy has been appointed as
Commissioner to record the evidence of witnesses
produced by both parties. Accordingly, the learned
Commissioner recorded the evidence of witnesses produced
by both parties and submitted his report along with
depositions of all the witnesses and documents marked by
them.
15. Heard learned Sri B.Chandra Mouli learned
senior counsel and Sri Ch.Satyasadhan counsel appearing
for the petitioner as well as Sri Dammalapati Srinivas,
learned senior counsel, Sri N.Manohar and Ms.Nisha
Padmanabhan counsel for the 1st respondent.
16. Learned senior counsel for the petitioner has
submitted that the Election Petition has been filed by the
petitioner on various grounds and he was able to prove his
contentions by examining himself as PW1 and by
examining the other witnesses. Learned counsel has
submitted that the evidence of PWs 1 to 3 would show that
there was failure on the part of the respondent No.1 in
furnishing the details of criminal cases pending as well as
the previously filed cases where he was found guilty and
convicted. There was failure on the part of 1st respondent
in publishing the details in the newspaper as per the
guidelines of the Election Commission. There was failure
on the part of 1st respondent to publish the details in the
font as approved by the Election Commission. With regard
to the presentation of Election Petition before the High
Court, learned Counsel while placing reliance on Sheo
Sadan Singh vs Mohan Lal Gautam 1 and also referring
the rules framed by this Court with regard to presentation
of Election Petition has submitted that in view of the above
referred Judgment and as per the Rules framed by the
High Court, if the petitioner is able to show that he has
presented the Election Petition along with his Advocate,
that is sufficient proof and it is compliance of Section 81 (1)
of Act, 1951.
1 (1969) 1 SCC 408
17. In the above said Sheo Sadan Singh vs
Mohan Lal Gautam's case, the Hon'ble Apex Court was
pleased to observe that when the Election Petition was
presented to the registry by an Advocate Clerk in the
immediate presence of the petitioner in substance though
not in form it was presented by the petitioner himself. The
requirement of the law was fully satisfied. In support of his
claim that in view of the framing of the Rules by the High
Court, wherein it is provided that Election Petition can be
presented by the petitioner or through his counsel, the
learned counsel relied on Judgment between Jamal Uddin
Ahmad vs Abu Saleh Najimuddin And Another 2
wherein it was observed that receiving Election Petition is a
ministerial function and High Court can authorize its
official to receive election petitions, which amounts to
authorizing to do only an act incidental to the main judicial
function of trial of election petition.
18. Learned counsel for the petitioner while
referring the Judgment in G.V.Sreerama Reddy and
2 2003 4 SCC 257
Another vs Returning Officer and Others 3 has
submitted that the evidence of PW1 is very clear that he
himself presented the Election Petition along with his
Advocate, thereby the petitioner was able to prove the
compliance of Section 81 (1) of the Act, 1951.
19. Learned Counsel for the petitioner has
submitted that in view of the guidelines referred by the
petitioner in the Election Petition and in view of the
evidence placed before the Court, it is very clear that apart
from furnishing the information, the information required
under Form No.26 has also to be furnished, and for this
proposition he has relied on Judgment between Satish
Ukey vs Devendra Gangadhararao Fadnavis and
Another 4.
20. Learned counsel for the petitioner has argued
that if there was failure by the returned candidate in
furnishing the information in Form No.26, it is violation of
Article 19 (1)(a) of the Constitution of India. Therefore, it
3 2009 8 SCC 736
4 2019 9 SCC 1
amounts to undue influence falling under Section 123 of
the Act, 1951.
21. In view of the contentions raised by the 1st
respondent with regard to the impleadment of parties to
the Election Petition, the petitioner sought to rely on
Murarka Radhey Shyam Ram Kumar vs Roop Singh
Rathore & Others 5 and the counsel has argued that
impleading persons other than the persons required to be
impleaded as per Section 82 of the Act, 1951 is not fatal
defect. Mistake of oath commissioned in identifying the
affidavit cannot be a sufficient ground for dismissal of the
Election Petition and defect as to the time and place of the
identification is not a fatal defect.
22. Learned counsel while submitting his further
arguments for the petitioner has argued that the oral
evidence and documents marked through PWs 1 to 3 would
show that the 1st respondent published the criminal cases
that were pending against him in a small font in
newspapers which have no such a huge circulation, that
5 AIR 1964 SC 1545
too in a tabular form containing three(3) rows, six(6) cases
in each row so that it give an impression there are only
three(3) cases. Such conduct would definitely influence the
mind of the voter, thereby it amounts to corrupt practices,
and the election of the 1st respondent is liable to be set
aside.
23. On the other hand learned counsel for the 1st
respondent placed reliance on Judgment between
G.V.Sreerama Reddy and Another vs Returning Officer
and Others referred supra for the proposition that when
there was a statutory provision and rules made by the
Court, the statutory provisions prevailed on the Rules and
the failure of the petitioner in presenting the petition before
the registry in person clearly shows that it is liable for
dismissal.
24. In the above referred Judgment, the Hon'ble
Apex Court was pleased to observe that the Act itself is a
self contained special Act, enacted with specific purpose.
Thereby, the Court needs to consider legislature's intention
and any procedure provided by the Act must be read
strictly.
25. Based on the pleadings, number of issues have
framed and parties have produced their respective
evidence.
26. This Election Petition has been filed under
Section 100 of the Act, 1951 questioning the election of 1st
respondent on various grounds:
The petitioner has claimed that the 1st respondent
failed to disclose all the pending previously filed criminal
cases wherein he was convicted while submitting Form
No.26 as per the guidelines of Election Commission of
India. He has also claimed that the 1st respondent failed to
publish the above stated criminal cases in newspapers in
accordance with the guidelines and publication made by
the 1st respondent was not in the largely circulated
newspaper and the font used for such publications is
smaller than the required font. The petitioner has also
pleaded that the 1st respondent published the cases in
three(3) small rows with six(6) cases in each row to depict
as if only three(3) cases were registered against him. Apart
from this, petitioner has also claimed that the 1st
respondent misled the public by publishing his full name
though he was popularly known as B.B.Patil only.
27. Learned counsel for the petitioner has claimed
that there is no evidence to believe that the petitioner did
not present the election petition before the High Court and
in view of the Rules framed by the High Court, it is
sufficient if the petitioner is able to show that he has
presented the petition through his Advocate.
28. On the other hand the 1st respondent has
claimed that the petitioner has failed to follow the
mandatory provisions of Act in filing the Election Petition.
The petitioner who is supposed to file the petition before
High Court in person, failed to prove that he has personally
presented the petition. Respondent No.1 has also claimed
that the petitioner cannot give a go by to the provisions
under Section 81 (1) of Act, 1951 and he has to prove that
the petition was presented by him in person.
29. In view of the above settled law, the amendment
or framing of Rules cannot be considered. It may be true
that as per Rule 3 framed by this Court, Election Petition
can be field by the petitioner himself or through his
Advocate, but as per Section 81 (1) of Act, 1951 Election
Petition shall be presented by the petitioner only.
30. The petitioner placed reliance on the Judgment
between Sheo Sadan Singh vs Mohan Lal Gautam
referred supra wherein it was observed that presentation of
Election Petition to the registry by an Advocate Clerk in the
immediate presence of petitioner in substance though not
in form, it was presented by the petitioner himself and
requirement of law was fully satisfied.
31. However, in the recent (subsequent) Judgment
in G.V.Srirama Reddy vs Returning Officer and
Another referred supra, the Hon'ble Apex Court having
referred the Judgment in Sheo Sadan Singh vs Mohan
Lal Gautam, observed that the Act is a self contained
special Act enacted with a specific purpose. Court needs to
consider legislatures' intention. The reason for this fidelity
towards the legislative intent is that the statute has been
enacted with a specific purpose which must be measured
from the wording of the statute strictly construed.
32. The Hon'ble Apex Court made the following
observation in G.V.Srirama Reddy vs Returning Officer and
Another:
15. This Court, on previous occasions, had the chance to interpret
Section 81(1). It must be noted that the Representation of the People
Act, 1951 is a special statute, and a self-contained regime. In K.
Venkateswara Rao and Anr. vs. Bekkam Narasimha Reddi and Ors.,
(1969) 1 SCR 679, a question arose whether 45 days period provided
under Section 81(1) could be condoned through the application of the
Limitation Act? After examining the relevant provisions of the Act,
this Court held: (AIR p.877,para 14)
14 "...the Limitation Act cannot apply to proceedings
like an election petition inasmuch as the Representation of
the People Act is a complete and self-contained code which
does not admit of the introduction of the principles or the
provisions of law contained in the Indian Limitation Act."
This has been reiterated in Hukumdev Narain Yadav vs. Lalit Narain
Mishra, (1974) 2 SCC 133, wherein this Court has again read the
requirements under Section 81 strictly, while stating that the Act is a
self- contained special statute.
16. While interpreting a special statute, which is a self- contained
code, the Court must consider the intention of the Legislature. The
reason for this fidelity towards the Legislative intent is that the statute
has been enacted with a specific purpose which must be measured
from the wording of the statute strictly construed.
17. The preamble of the Representation of the People Act makes it
clear that for the conduct of elections of the Houses of Parliament or
the Legislature of each State, the qualification and dis- qualification
for membership of those Houses, the corrupt practice and other
offences in connection with such allegations the Act was enacted by
the Parliament.
18. In spite of existence of adequate provisions in the Code of Civil
Procedure relating to institution of a suit, the present Act contains
elaborate provisions as to disputes regarding elections. It not only
prescribes how election petitions are to be presented but it also
mandates what are the materials to be accompanied with the election
petition, details regarding parties, contents of the same, relief that may
be claimed in the petition. How trial of election petitions are to be
conducted has been specifically provided in Chapter III of Part VI. In
such circumstances, we are of the view that the provisions have to be
interpreted as mentioned by the Legislature.
19. One can discern the reason why the petition is required to be
presented by the petitioner personally. An election petition is a serious
matter with a variety of consequences. Since such a petition may lead
to the vitiation of a democratic process, any procedure provided by an
election statute must be read strictly. Therefore, the Legislature has
provided that the petition must be presented "by" the petitioner
himself, so that at the time of presentation, the High Court may make
preliminary verification which ensure that the petition is neither
frivolous nor vexatious.
33. In a recent Judgment between Chaluvagali
Raghavendra Raju and Another vs Srinivas Goud in
E.P.No.23 of 2019, on the file of this Court, the learned
single Judge while referring (i) Cooperative Central Bank
Limited vs Additional Industrial Tribunal 6, (ii) Babaji
Kondaji Garad Etc., vs The Nasik Merchants Co-
operative Bank Limited 7 and (iii) Central Industrial
Tribunal vs Tajmahal Hotels, Secunderabad 8, wherein
it was held that if there is conflict between the statutory
6 1969 2 SCC 43
7 (1984) 2 SCC 50
8 1971 3 SCC 550
provisions and Rules, the Rules must give in and the Act
must prevail, made an observation that the Rules made by
the High Court since against statutory requirement, if the
Rule is accepted it whittle down the effect of Section 81 (1)
of the Act.
34. In the above stated case i.e., G.V.Srirama
Reddy vs Returning Officer and Another referred supra,
the Hon'ble Apex Court made the following observation in
para Nos.19 and 24:
19) One can discern the reason why the petition is required to be
presented by the petitioner personally. An election petition is a
serious matter with a variety of consequences. Since such a
petition may lead to the vitiation of a democratic process, any
procedure provided by an election statute must be read strictly.
Therefore, the Legislature has provided that the petition must be
presented "by" the petitioner himself, so that at the time of
presentation, the High Court may make preliminary verification
which ensure that the petition is neither frivolous nor vexatious.
24) The challenge to an election is a serious matter. The object
of presenting an election petition by a candidate or elector is to
ensure genuineness and to curtail vexatious litigations. If we
consider sub-section (1) along with the other provisions in
Chapter II and III, the object and intent of the Legislature is that
this provision i.e. Section 81(1) is to be strictly adhered to and
complied with.
35. Therefore, it is very clear that though Rule 3
made by this Court permit the presentation of Election
Petition by the petitioner or through his Advocate with his
presence since statutory provisions required the presence
of the petitioner, the petitioner cannot take any advantage
of the Rule and he has to prove that he himself presented
the petition before the High Court.
36. The petitioner who is examined as PW1 and
who filed his evidence in the form of an affidavit reiterate
what he stated in the petition and claimed that he was
personally present at the time of filing the Election Petition
in the High Court. However, in the cross examination PW1
admitted that he cannot say the name of notary who
attested his evidence affidavit. He does not remember the
name of notary who has attested the Election Petition. He
does not remember before which Registrar he has
presented the Election Petition. It is elicited from PW1 that
he has not signed the Election Petition when it was
presented before the registry. PW1 has admitted that he
did not obtain any gate pass for entering into the premises
of the High Court and by showing his Aadhaar card he
could enter the High Court along with his counsel. Though
he claimed that he is aware of return of Election Petition
with certain objections, he is not able to say the date on
which the Election Petition was returned.
37. Learned counsel for the respondent No.1 while
referring the Election Petition filed before the High Court
submitted that except oral evidence of PW1 that he was
present at the time of filing Election Petition, there is no
other proof. In the cross examination of PW1 it was elicited
that he did not obtain the gate pass for entering into the
High Court premises and his signatures were not found on
any written resubmission documents, indicates that he
was not personally present and the Election Petition was
not presented by him in person.
38. In addition to the evidence of PW1, there is
evidence of Officer before whom the Election Petition was
filed, the Officer who conducted the scrutiny of the Election
Petition. However, the witnesses examined at the instanced
of the 1st respondent were not able to confirm that the
Election Petition was personally presented by the
petitioner.
39. According to the evidenced of CW2, he was
working as Asst. Registrar, In-charge of O.S. and Writs
during the relevant period in 2019. CW2 deposed before
this Court that as per the rules framed by this Court,
Election Petition has to be filed in the office of Registrar by
the petitioner, or the Advocate duly appointed by him. The
said Rules were published in the High Court manual in
2004. CW2 has further stated before the Court that he
does not remember as to how many Election Petitions were
filed in 2019. He is not aware that the Assistant Registrar
has to take signature of the petitioner in Election Petition
in a register or by way of an endorsement on the Election
Petition to show that he was present in person. However,
this witness voluntarily stated before the Court that the
said procedure was not there as per the Rules framed by
the High Court and he does not know who has presented
the petition in the receiving counter.
40. Similarly, as per the evidence of CW3 who was
Scrutiny Office of O.S.Wing, New Filing Section in 2019,
she herself scrutinized the Election Petition filed by the
petitioner herein. She has noticed 14 objections in the
Election Petition as shown in Ex.C2. However, she does not
know whether the petitioner was present personally at the
time of filing the petition in the High Court. Since it is filed
in the counter of receiving section, she is not aware that
the signature of the petitioner shall be obtained either on
the Election Petition or in the register maintained by the
High Court. Therefore, the evidence of CWs 2 and 3 goes to
show that they are not sure whether the Election Petition
was filed by the petitioner in person or whether it was
presented by an Advocate or Advocate Clerk. The petitioner
who claimed to have presented the petition in person, was
not able to show any proof that he has entered the High
Court by duly obtaining gate pass and admittedly there are
no signatures of the petitioner in relevant register at the
time of presentation of Election Petition.
41. Therefore, it is very clear that the petitioner
failed to establish that he himself presented the Election
Petition before the registry, and in view of the provisions of
Section 81 (1) of the Act, 1951 Election Petition has to be
presented by the candidate personally and in case of his
failure to adhere to the said clause, such Election Petition
is liable to be dismissed on the ground of improper
presentation.
42. As could be seen from Section 81 (1) of Act,
1951 and in view of the above referred Judgments, the
Hon'ble Apex Court, it is very clear that the presence of
petitioner at the time of presenting the petition in the High
Court ensures the verification with the Election Petition to
check the genuineness of the claim and for avoiding
frivolous and vexatious litigation.
43. As rightly argued by the learned senior counsel
for the 1st respondent, there is no averment in the entire
petition by the petitioner that he personally presented the
Election Petition before the High Court. As could be seen
from the record, the petitioner did not file required copies
of Election Petition and objection on that ground was not
complied within the time of limitation. The petitioner could
not place any evidence like gate pass to substantiate his
claim that he personally attended the Court and filed the
petition. He did not choose to examine his Advocate to
prove that he along with his counsel attended the High
Court. Learned counsel for the 1st respondent has argued
that the lodgment schedule has been signed by the
Advocate and it does not indicate the presence of the
petitioner. The petitioner has filed this petition challenging
the election of respondent No.1 as Member of Parliament.
44. In a Judgment between Jagan Nath vs.
Jaswant Singh and Others 9, the Hon'ble Apex Court was
pleased to observe that "Election disputes are not cases at
common law or equity but are strict statutory proceedings
and results of an election, is not available to be interfered
with lightly."
45. In another Judgment between Ponnala
Laskmaiah vs Kommuri Pratap Reddy and Others 10, it
was observed that election of a successful candidate is not
to be lightly interfered with by the Courts. Courts
generally lean in favour of the returned candidate and
place the onus of proof on the person challenging the end
9 AIR 1954 SC 210
10 (2012) 7 SCC 788
result of an electoral contest. The following was the
observation in the above referred judgment:
29. There is no denying the fact that the election of a
successful candidate is not lightly interfered with by the
Courts. The Courts generally lean in favour of the
returned candidates and place the onus of proof on the
person challenging the end result of an electoral contest.
That approach is more in the nature of a rule of practice
than a rule of law and should not be unduly stretched
beyond a limit. We say so because while it is important to
respect a popular verdict and the courts ought to be slow
in upsetting the same, it is equally important to maintain
the purity of the election process. An election which is
vitiated by reason of corrupt practices, illegalities and
irregularities enumerated in Sections 100 and 123 of the
Act cannot obviously be recgnised and respected as the
decision of the majority of the electorate. The Courts are,
therefore, duty bound to examine the allegations
whenever the same are raised within the framework of
the statute without being unduly hyper-technical in its
approach & without being oblivious of the ground
realities.
46. Since the petitioner has filed this petition on the
ground that the failure of respondent No.1 in complying
the guidelines so far as they relate the disclosure of
criminal cases, and publication of those cases in
newspapers as well as through television broadcasting,
now the Court has to examine as to how far the petitioner
was successful in establishing the alleged corrupt practices
and whether the alleged corrupt practices, influenced the
exercise of votes of general public i.e., voters of that
particular constituency.
47. Even though the petitioner has claimed that the
1st respondent had won the election with a meager
majority, the fact is the 1st respondent secured (4,34,244)
votes and majority was (6,229) votes.
48. As could be seen from the material averments
made in the petition and as per the evidence of the
petitioner who was examined as PW1, he sought for
declaring the election of respondent No.1 on the grounds
available under Section 100 (d)(i)(iii)(iv).
49. Section 100 of The Representation of the People
Act, 1951 has been extracted hereunder:
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 5by 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
8without the consent, of the candidate or his election
agent;(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.
50. The petitioner wanted the said declaration on
the ground that the nomination of respondent No.1 was
improperly accepted, by the improper reception. The
Hon'ble Apex Court in a decision in L.R.Shivaramagowda
Etc., vs T.M.Candhrashekar (dead) by Lrs and
Others 11, observed that when a challenge is made under
Section 100(1)(d)(iv) of that Act, 43 of 1951, it is necessary
11 (1999) I SCC 666
for the election of petitioner to plead specifically in what
manner the result of the election of the candidate was
materially affected by the alleged non-compliance with the
provisions of the Act or of the Rules.
51. Even though the petitioner has claimed as if
there are number of violations, the main contention is, the
1st respondent failed to indicate all the pending criminal
cases in the Form 26 and failed to publish the list in the
proper newspaper and in appropriate font. In fact, as per
Section 33-A of Act 43 of 1951, a candidate apart from
giving any information which he is required to furnish shall
also furnish the information as to whether he is accused of
any offence punishable with imprisonment for two years or
more in a pending case in which a charge has been framed
and whether he has been convicted of an offence other
than any offence referred in sub section 1,2,3 of Section 8
and sentenced to imprisonment for one year or more.
52. The petitioner has claimed that the 1st
respondent is shown as accused in two criminal cases. As
per the documents annexed to the Election Petition, the
petitioner has claimed that the 1st respondent is accused in
two criminal cases. However, as per the FIR shown in page
184, the names of accused are M.B.Patil and B.B.Patil
Constructions Ltd. But, he could not place any material to
show as to how respondent No.1 is related to the said
B.B.Patil Constructions. The brother of 1st respondent who
is examined as RW2 M/s.Patil Constructions was his
proprietary concern and he has bagged certain civil
contracts, having participated in the bidding. RW2 has
admitted that he has not filed Form No.32 of M/s.Patil
Constructions and Infrastructure Private Limited. But, his
evidence clearly indicates that respondent No.1 is no way
concerned with the said B.B.Patil Constructions. Even, if it
is accepted that two cases were registered there is no
evidence to believe that 1st respondent was accused in the
above said cases and it was elicited from RW2 that the said
case were filed for violation of certain Forest Rules and the
said case was registered against Patil Constructions. The
petitioner could not produce any material to show that
such a case was registered against the 1st respondent in
his individual capacity. Moreover, the said case is only on
the ground of certain violations of Forest Rules. It is not
the case of petitioner that these cases are punishable with
more than 1 year or two years imprisonment.
53. Learned counsel for the petitioner has argued
that the name of 1st respondent has been shown as
V.V.Patil as they used to pronounce "B" as "V", "Ba" as
"Va". Even if this contention is accepted, there is no
material to believe that the 1st respondent in any way
connected to the said Patil Constructions/brother of 1st
respondent who is examined as RW2 is also Patil and his
evidence goes to show that respondent No.1 is no way
concerned with the said Patil Constructions Ltd. Therefore,
the allegation that respondent No.1 suppressed the cases
in the Form No.26, is incorrect, and furthermore as could
be seen from the record, the alleged offences are not
punishable with 1 year or 2 years imprisonment.
54. The petitioner could not place any material, like
evidence of any individual to show as to how the alleged
suppression of said petty cases affected the result.
Absolutely there is no evidence on record to show that
respondent No.1 was convicted in any criminal case. The
cases under Forest Act are not against the 1st respondent.
Even if it is believed that there was any violation by
respondent No.1 and proceedings under Payment of Wages
Act, 1936 or Minimum Wages Act, were initiated they
cannot be equated with criminal cases.
55. The main ground in filing the Election Petition
is about suppression of pending and disposed criminal
cases by respondent No.1. In view of the above discussion,
it is very clear that the petition is not able to prove that
respondent No.1 is accused in any such cases as mention
in Section 33 (A) of Act 43 of 1951, and even if "Patil
Constructions" is shown as accused in some petty cases for
the alleged violation, in view of the evidence of RW2 it is
quite clear that respondent No.1 is not accused in those
cases and the firm itself was shown as accused.
56. The other grounds on which the petitioner
sought the declaration is about the font used while
publishing the details of criminal cases and publication in
newspapers which were not having vide circulation etc. The
petitioner has claimed that the 1st respondent while
publishing the above cased deliberately used the full name
as Bheemarao Basawantharao Patil though he is popularly
known as B.B.Patil, it was only to mislead the general
public and all voters. In support of this claim, the
petitioner has examined PW2 and PW3 who deposed that
newspapers in which respondent No.1 published the case
details were not having such a great circulation in their
area. However, the cross examination of these witnesses
indicates that they are not residents of that particular
locality and they were only a chance witnesses may be
projected by the petitioner to support his contention.
57. The petitioner is not in a position to show any
strong evidence to believe that the alleged failure of
respondent No.1 in publishing the news in a particular font
and in largely circulated newspaper had any impact on the
result. In fact, the witnesses through whom petitioner
sought to prove that 1st respondent failed to publish the
case details in a big font, and only in three small rows,
himself comfortably read the case details and the witness
did not feel any difficulty in giving the details. The
petitioner did not examine any voter to prove that in view of
lack of information about the cases only, he has exercised
his vote in favour of the 1st respondent.
58. In view of the clear evidence of these witnesses
about the number of voters and percentage of literate
voters in that particular constituency, even if the claim of
petitioner that the case details were not properly published
in largely circulated newspaper, the petitioner cannot claim
that such failure influenced the voters in exercising their
franchise in favour of respondent No.1. The 1st respondent
secured more than four lakhs (4,00,000) votes which
indicates that more than four lakhs (4,00,000) voters were
in favour of the 1st respondent and there is no evidence to
believe that the casting of votes by those more than four
lakhs (4,00,000) voters was due to the failure of 1st
respondent in publishing the criminal case details.
59. It may be true the 1st respondent has
mentioned his full name in the news items but in the
absence of clear evidence that the voters were mislead by
respondent No.1 by way of publishing his full name instead
of using B.B.Patil, it cannot be accepted that the
publication of his full name influenced the voting pattern
and brought success to the 1st respondent. In view of the
public being very active in social media now a days, the
contention of the petitioner that simply because the 1st
respondent shown his name as Bheemarao Basawantharao
Patil in the news item, the public were mislead and thereby
casted their votes in favour of respondent No.1 cannot be
accepted. In fact, there is no acceptable evidence to
indicate that the 1st respondent is known to the public as
B.B.Patil only.
60. Therefore, the publication of his name as
Bheemarao Basawantharao Patil and publication of cases
in small font in normal circulated news papers cannot be
said to be a correct practice or such act had impact on the
voting pattern and influenced the result of the election.
61. The petitioner did not place any evidence to
show that he has raised any objection before the Returning
Officer against the nomination filed by respondent on the
above shown grounds. Since the election that was
questioned in the present Election Petition is for a Member
of Parliament and as the 1st respondent bagged more than
four lakhs (4,00,000) votes, simply because the petitioner
raised some trivial issues and questioned the election, the
same cannot be set aside.
62. The petitioner is not able to prove that he has
personally presented the Election Petition before the High
Court. His contention that he has presented the petition in
the immediate presence of his counsel also cannot be
accepted in view of his failure in examining his counsel as
a witness in the enquiry of the present Election Petition.
The contention of the petitioner that in view of the Rules
framed by the High Court, enabling the party to present
the Election Petition through his counsel, also cannot be
accepted as the same is against the statutory provision,
which provides that the Election Petition shall be presented
by the petitioner in person.
63. All the grounds, on which the petitioner sought
for declaration to declare the election of respondent No.1 as
null and void, cannot be considered in view of the absence
of clear evidence that such failure had a great impact on
the election result. Therefore, for all these reasons, the
Election Petition filed by the petitioner is liable to be
dismissed. Accordingly, this Election Petition is dismissed.
Pending miscellaneous applications, if any, shall
stand closed.
___________________________________
JUSTICE SAMBASIVARAO NAIDU
Date:19.04.2024
PSSK
