Karnataka High Court
K Ravishankar vs M Krishnappa on 27 June, 2023
Author: Ravi V. Hosmani
Bench: Ravi V. Hosmani
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
M.F.A.NO.6126 OF 2022 (MPA)
C/W
M.F.A.NO.6685 OF 2022 (MPA)
IN M.F.A.NO.6126/2022:
BETWEEN:
K. RAVISHANKAR,
S/O KENCHAPPA,
AGED ABOUT 48 YEARS,
R/OF SAPTAGIRI BADAVANE,
WARD NO.31, SIRA TOWN,
SIRA - 572 137,
TUMKUR DISTRICT. ...APPELLANT
[BY SRI. D.N.NANJUNDA REDDY, SR. COUNSEL FOR
Ms. SRUTI C. CHAGANTI, ADVOCATE (PH)]
AND:
1. M. KRISHNAPPA,
S/O MUDLAGIRIYAPPA,
AGED ABOUT 54 YEARS,
R/AT NO.404, BHOVI COLONY,
RANGANATHANAGAR,
BEHIND DURGA ITI COLLEGE,
SIRA TOWN, SIRA-572 137,
TUMKUR DISTRICT.
2. H. MARUTHEESH,
S/O HANUMAIAH,
AGED ABOUT 48 YEARS,
2
R/OF WARD NO.9
SOPPINAHATTI SIRA TOWN
SIRA-572137
TUMKUR DISTRICT.
3. ADIL PASHA,
S/O ABDUL JABEEL,
AGED ABOUT 38 YEARS,
R/AT LADPUR, SIRA TOWN,
SIRA-572 137,
TUMKUR DISTRICT.
4. S PRAVEENKUMAR,
S/O SRINIVAS,
AGED ABOUT 30 YEARS,
R/OF JYOTHI NAGAR,
SIRA TOWN, SIRA-572 137,
TUMKUR DISTRICT.
5. GEETHA M
W/O RAMESH B.,
AGED ABOUT 32 YEARS,
R/OF LADPUR,
SIRA TOWN,
SIRA-572 137,
TUMKUR DISTRICT.
6. K BABU,
S/O LATE KRISHNAPPA,
AGED ABOUT 41 YEARS,
R/OF LADPUR,
SIRA TOWN,
SIRA-572 137,
TUMKUR DISTRICT.
7. MOHAMMAD HANIF,
S/O MOHAMMAD,
WAJID SAB,
AGED ABOUT 34 YEARS,
R/OF WARD NO.9,
SPOOINAHATTI SIRA TOWN,
3
SIRA-572 137,
TUMKUR DISTRICT.
8. S R LAKSHMINARAYAN, RESPONDENT NOS.2 TO 8 ARE
S/O N RAMARAJU, DELETED V/O DT. 05.09.2022
AGED ABOUT 40 YEARS,
R/OF JYOTHI NAGAR SIRA TOWN,
SIRA-572 137,
TUMKUR DISTRICT.
9. THE GOVERNMENT KARNATAKA,
URBAN DEVELOPMENT DEPARTMENT,
M S BUILDING,
BENGALURU-560 001,
REP. BY ITS PRINCIPAL SECRETARY.
10 . DEPUTY COMMISSIONER,
TUMKUR-572 101,
TUMKUR DISTRICT.
11 . THE TAHSILDAR,
MINI VIDHANA SOUDHA,
SIRA TALUK OFFICE,
SIRA-572 137,
TUMKUR DISTRICT.
12 . CITY MUNICIPAL COUNCIL, SIRA,
SIRA TOWN MAIN ROAD,
SIRA-572 137,
REP. BY ITS COMMISSIONER.
13 . THE KARNATAKA STATE,
ELECTION COMMISSION,
NO.8, 1ST FLOOR,
CUNNINGHAM ROAD,
BANGALORE-560 052,
REP. BY ITS COMMISSIONER.
14 . THE CHIEF ELECTION OFFICER,
RETURNING OFFICER, SIRA,
SIRA-572 137,
4
TUMKURU DISTRICT,
REP. BY TAHSILDAR, SIRA.
...RESPONDENTS
(BY SRI. PRABHUGOUD B. TUMBIGI, ADVOCATE FOR R1 (PH);
SRI. VIVEK S. REDDY, SR. COUNSEL FOR
SRI. K.N.SUBBA REDDY, ADVOCATE FOR R2 (PH);
SRI. RAMESH GOWDA A., AGA FOR R9 TO R11 (PH);
SRI. S. RAJU, ADVOCATE FOR R12 (PH);
SMT. VAISHALI HEGDE, ADVOCATE FOR R13 & R14 (PH);
R3 TO R8 ARE DELETED V/O DATED 05.09.2022]
IN M.F.A.NO.6685/2022:
BETWEEN:
H.MARUTHEESH,
S/O HANUMAIAH,
AGED ABOUT 48 YEARS,
R/O WARD NO.9,
SOPPUNAHATTI,
SIRA TOWN, SIRA-572 137,
TUMKURU DISTRICT.
...APPELLANT
[BY SRI. VIVEK S. REDDY, SR. COUNSEL FOR
SRI. K.N.SUBBA REDDY, ADVOCATE (PH)]
AND:
M. KRISHNAPPA,
1. S/O MUDLAGIRIYAPPA,
AGED ABOUT 54 YEARS,
R/AT NO.404, BHOVI COLONY,
RANGANATHANAGAR,
BEHIND DURGA ITI COLLEGE,
SIRA TOWN, SIRA-572137,
TUMKUR DISTRICT.
5
2. K RAVISHANKAR,
S/O KENCHAPPA,
AGED ABOUT 48 YEARS,
R/O SAPTAGIRI BADAVANE,
WARD NO.31,
SIRA TOWN,
SIRA-572137,
TUMKUR DISTRICT.
3. ADIL PASHA,
S/O ABDUL JABEEL,
AGED ABOUT 38 YEARS,
R/AT LADPUR,
SIRA TOWN,
SIRA-572137,
TUMKUR DISTRICT.
4. S. PRAVEENKUMAR,
S/O SRINIVAS,
AGED ABOUT 30 YEARS,
R/OF JYOTHI NAGAR,
SIRA TOWN,
SIRA-572 137,
TUMKUR DISTRICT.
5. GEETHA M.,
W/O RAMESH B.,
AGED ABOUT 32 YEARS,
6. K BABU,
S/O LATE KRISHNAPPA,
AGED ABOUT 41 YEARS,
RESPONDENTS NO.5 & 6 ARE
R/A LADPUR, SIRA TOWN,
SIRA-572 137,
TUMKUR DISTRICT.
6
7. MOHAMMAD HANIF,
S/O MOHAMMAD, WAJID SAB,
AGED ABOUT 34 YEARS,
R/OF WARD NO.9,
SOPPINAHATTI SIRA TOWN,
SIRA-572 137,
TUMKUR DISTRICT.
8. S R LAKSHMINARAYAN,
S/O N RAMARAJU,
AGED ABOUT 40 YEARS,
R/OF JYOTHI NAGAR,
SIRA TOWN,
SIRA-572 137,
TUMKUR DISTRICT.
9. THE GOVERNMENT KARNATAKA,
URBAN DEVELOPMENT DEPARTMENT,
M S BUILDING,
BENGALURU-560 001,
REP. BY ITS PRINCIPAL SECRETARY.
10 . DEPUTY COMMISSIONER,
TUMKUR-572 101,
TUMKUR DISTRICT.
11 . THE TAHSILDAR,
MINI VIDHANA SOUDHA,
SIRA TALUK OFFICE,
SIRA-572 137,
TUMKUR DISTRICT.
12 . CITY MUNICIPAL COUNCIL,
SIRA, SIRA TOWN MAIN ROAD,
SIRA-572 137,
REP. BY ITS COMMISSIONER.
13 . THE KARNATAKA STATE
ELECTION COMMISSION,
NO.8, 1ST FLOOR,
CUNNINGHAM ROAD,
7
BANGALORE-560 052,
REP. BY ITS COMMISSIONER.
14 . THE CHIEF ELECTION OFFICER,
RETURNING OFFICER, SIRA,
SIRA-572 137,
TUMKURU DISTRICT,
REP. BY TAHSILDAR.
...RESPONDENTS
(BY SRI. PRABHUGOUD B. TUMBIGI, ADVOCATE FOR R1 (PH);
SRI. D.N.NANJUNDA REDDY, SR. COUNSEL FOR
Ms. SRUTI C. CHAGANTI, ADVOCATE FOR R2 (PH);
SRI. RAMESH GOWDA A., AGA FOR R9 TO R11 & R14 (PH);
SRI. S. RAJU, ADVOCATE FOR R12 (PH);
SMT. VAISHALI HEGDE, ADVOCATE FOR R13 (PH)]
THIS M.F.A No.6126/2022 IS FILED UNDER SECTION 27 OF THE
KARNATAKA MUNICIPALITIES ACT, 1964, AGAINST THE JUDGMENT
DATED 26.08.2022 PASSED IN E.P.NO.1/2022 ON THE FILE OF THE
SENIOR CIVIL JUDGE, JMFC., SIRA, PARTLY ALLOWING THE PETITION
FILED U/S 21 AND 23 OF KARNATAKA MUNICIPALITIES ACT, 1964 R/W
RULE 69 OF THE KARNATAKA MUNICIPALITIES ACT, 1977.
THIS M.F.A No.6685/2022 IS FILED UNDER SECTION 27 OF THE
KARNATAKA MUNICIPALITIES ACT, 1964, AGAINST THE JUDGMENT
DATED 26.08.2022 PASSED IN E.P.NO.1/2022 ON THE FILE OF THE
SENIOR CIVIL JUDGE, JMFC., SIRA, PARTLY ALLOWING THE PETITION
FILED U/S 21 AND 23 OF KARNATAKA MUNICIPALITIES ACT, 1964 R/W
RULE 69 OF THE KARNATAKA MUNICIPALITIES ACT, 1977.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 16.11.2022, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
8
JUDGMENT
Challenging impugned order dated 26.08.2022 passed by Senior Civil Judge, JMFC., Sira, in E.P.no.1/2022, these appeals are filed.
2. Appellant in MFA no.6126/2022 was respondent no.1, while appellant in MFA no.6685/2022 was respondent no.2 in E.P.no.1/2022. Respondent no.1 in both appeals herein was petitioner and respondents no.2 to 14 herein were respondents no.2 to 14 in E.P.no.1/2022 respectively. For sake of convenience, they will hereinafter be referred to as per their ranks in election petition.
3. E.P.no.1/2022 was filed by Sri M. Krishnappa (Petitioner) under Sections 21 and 23 of Karnataka Municipalities Act, 1964 (hereinafter referred to as 'KM Act'), read with Rule 69 of Karnataka Municipalities Rules, 1977 (for short 'KM Rules'), for following reliefs:
a) declare candidature of respondent no.1 (Sri K. Ravishankar) in respect of ward no.9 of City Municipal Council, Sira, as null and void and not in accordance with KM Act and Rules;
and 9
b) direct respondent authorities to hold election to ward no.9 of City Muncipal Council afresh etc.
4. In petition, it was stated that as per directions of respondent no.9 - Government of Karnataka, respondent no.13 - Karnataka State Election Commission ('State E.C.' for short) issued calendar of events dated 29.11.2021 for conduct of elections to council of respondent no.12 - City Municipal Council ("CMC" for short). And that ward no.9 was notified for contest from General category candidates, on 27.12.2021. It was further stated that being registered voter in CMC and eligible, filed nomination along with declaration to contest election for post of Councilor from Ward no.9. It was stated that respondents no.1 to 8 had also filed nominations/declarations in respect of same ward.
5. It was stated that as per circular issued by State E.C., every candidate was required to file declaration declaring his source of income, criminal case history, assets and liabilities etc., upto date at time of filing nomination, in compliance with Section 15 of KM Act read with Rule 15 of KM Rules. It was stated that respondent no.1 had suppressed true facts and filed false 10 declaration, knowingly concealing true facts. It was stated though respondent no.1 was involved in many criminal cases and convicted in few, was holding 500 kgs of gold disproportionate to his rental income of only Rs.3,60,000/- and therefore false. It was stated that authorities failed to verify correctness of information/declaration and illegally accepted his nomination and permitted ineligible candidate to contest election.
6. Petitioner also alleged that respondent no.1 had used undue influence in collusion with Block Level Officers and Returning Officer, CMC and got deleted some voters in ward no.9 and got inserted names of others, who were not in it without address proof etc., which amounted to corrupt practice.
7. It was stated that petitioner had secured 381 votes as against 401 votes secured by respondent no.1 - candidate returned as winner of election. Aggrieved thereby, election petition was filed.
8. Upon service of notice, respondent no.1 filed objections denying petition averments as false. Insofar as criminal cases, it was stated that respondent no.1 was acquitted long back and due to lack of information and memory, they were not stated in 11 declaration, but omission was bonafide. It was stated that he had not declared holding 500 Kgs of gold, but value stated at Rs.45,00,000/- comprised of 499.5 Kgs of silver worth Rs.37,46,250/- and 500 gms of gold worth Rs.7,53,750/-. It was also stated that he was having other sources of income, such as Rs.3,60,000/- as rent from house property standing in name of his wife, which were included in declaration and denied concealment of any material particular with malafide intention so as to attract Section 21 and 23 of KM Act.
9. Respondent no.11 - Tahsildar, respondent no.12 - CMC filed separate, but formal objections.
10. Based on pleadings, tribunal framed following issues:
1. Whether the petitioner proves that, the respondent no.1 who contested the election as candidature of ward no.9 of the city municipal council, Sira held on 02.12.2021 as per the election notification dated 29.11.2021 and intentionally has suppressed the criminal history and made false declaration with respect to the rental income by mentioning as "nil" in the column no.5 of his declaration affidavit, thus violated Sec.15 rule 15 of Karnataka Municipality Act and Rules 1964?
2. Whether petitioner proves that, the candidature of respondent no.1 in respect of ward no.9 of the city municipal council, Sira is null and void 12 is not in accordance with the Karnataka Municipality Act and Rules-1964?
3. Whether the respondent no.1 proves that, he has not concealed any material particulars in declaration affidavit which attracts ingredients U/s 21 and 23 of Karnataka Municipalities Act and Rules 1964?
4. Whether the petitioner is entitled to the relief?
5. What order or decree?
11. Thereafter, it recorded evidence of petitioner as PW.1, marked Exhibits P.1 to P.21 on his behalf. It also marked Exhibits R1 to R.8 during cross-examination of PW.1. Thereafter, Tribunal answered points no.1 to 4 partly in affirmative and point no.5 by allowing petition, declaring election of respondent no.1 on 30.12.2021 as Councilor from ward no.9 of CMC, as null and void.
12. Aggrieved thereby, respondent no.1 filed MFA no.6126/2022. While respondent no.2 filed MFA no.6685/2022 seeking for modification of order of tribunal, by declaring him, who had secured second highest votes, as elected candidate. An alternative prayer for remand of matter for providing opportunity was also sought.
13
13. Sri. P.N. Nanjunda Reddy, learned Senior counsel for Miss. Sruti Chaganti, advocate for appellant submitted that order passed by tribunal was contrary to law and liable for interference. There was failure to appreciate true scope and meaning of provisions of KM Act, which were read in isolation from those of Representation of People Act, 1950 ('RoP Act' for brevity).
14. It was submitted that election petition was filed on 10.01.2022. After recording of evidence was completed and respondent no.1 had addressed final arguments, petitioner filed applications for permission to produce records pertaining to cheque bounce case pending against respondent no.1 and same were allowed on 28.07.2022. Immediately thereafter i.e., on 26.08.2022, election petition was disposed of.
15. It was submitted that election petition was allowed on three grounds namely, failure to disclose criminal antecedents, pending cheque bounce case and improper disclosure of income and assets.
14
16. At outset, attention was drawn to Ex.P1 - affidavit declaration filed along with nomination application. It was submitted that in paragraph no.8, respondent no.1 had stated total quantity of jewelry as 500 kgs along with it's value as Rs.45,00,000/- in table containing details of movable properties. He had also mentioned a building standing in name of his wife worth Rs.50,00,000/- fetching rental income of Rs.3,60,000/-.
17. Insofar as offences mentioned in charge-sheets at Exs.P2, P3 and P8, it was submitted that except in one motor vehicle accident case, where he was imposed fine of Rs.1,850/- without sentence of imprisonment, he was acquitted and same was admitted in cross-examination by petitioner. Details of same were as follows:
Exhibit no. C.C.no. Date of Result
order
P.2 - Charge sheet 106/2015 07.01.2019 Acquitted
P.3 - FIR 243/2015 02.02.2019 Acquitted
P.8 - Extract of 61/1993 19.03.1998 Acquitted
Crl. register
P.4 - Order sheet; 578/2017 27.11.2017 Convicted with
P.5 - FIR; imposition of fine of
P.6- Charge sheet. Rs.1850/-without
sentence of
imprisonment.
15
18. Further, referring to Ex.P15 - Notification issued by State E.C., it was submitted that sum and substance of preamble of notification was to inform voter about material particulars of candidate as would be necessary for making informed choice while casting vote and same did not require disclosure of all particulars. Even annexure to notification, prescribing form for filing affidavit in para (1) required details of cases of only conviction; and in para (3) of pending cases six months prior to date of filing nomination for offences punishable with imprisonment two or more years, in which charge-sheet was filed or cognizance taken by Court. It was submitted that Ex.P16 - order sheet in CC.no.5730/2017, clearly revealed that cognizance was not yet taken and respondent no.1 not yet served with summons prior to filing nomination. Ex.P17 - private complaint revealed that document no.5 produced along with complaint was un-served RPAD cover, which Tribunal mistook for summons issued by Court. Ex.P20 was legal notice got issued through advocate to respondent no.1 accompanied with un-served postal cover and postal acknowledgment. And Ex.P21, was RPAD 16 cover sent by advocate bearing postal shara 'refused', which was wrongly assumed to be summons issued by Court.
19. It was submitted that Section 23 of KM Act, which provides grounds on which election could be declared void, did not include grounds as contained in Section 33-A of RoP Act, which were inserted in terms of decisions of Hon'ble Supreme Court in People's Union for Civil Liberties (PUCL) & Anr. Vs. Union of India & Anr.1, and Union of India Vs. Association for Democratic Reforms & Anr.2. Therefore, reading of provisions of RoP Act into Municipalities Act would not be justified, especially when there is substantial compliance even with requirements under RoP Act.
20. It was submitted that sub-clause (i) of Section 33-A (1) of RoP Act required declaration of any pending case only where charge-sheet was filed, sub-clause (ii) would require compliance only in case of conviction and sentence of imprisonment for one year or more. And though Tribunal referred to ratio of decision of Hon'ble Supreme Court in PUCL's case (supra), that non-disclosure 1 (2003) 4 SCC 399 2 (2002) 5 SCC 294 17 of conviction forthcoming from Exs.P.4 to 6 would not amount to corrupt practice, it failed to follow same while considering non- disclosure of criminal case antecedents. On other hand, referring to decision in Krishnamoorthy Vs. Sivakumar & Ors.3, Hon'ble Supreme Court observed that non-disclosure of criminal antecedents would amount to undue influence and suppression of material facts in violation of notification issued by government, and justify election being declared as null and void under Section 100(1)(b) of RoP Act, which was not justified.
21. It was submitted that tribunal referred to entries in clauses no.5 and 6 of affidavit-declaration - Ex.P.1. While, clause no.5 pertained to information regarding criminal offences in which candidate was convicted and sentenced, clause no.6 pertained to information regarding past criminal offences in which candidate was discharged or acquitted. It was submitted that Ex.P.15 - notification was issued by State E.C. on 14.07.2003 in pursuance of decision of Hon'ble Apex Court in Assn. of People for Democratic Rights 3 (2015) 3 SCC 476 18 case (supra), wherein it quoted operative portion of judgment as follows:
(1) Whether candidate is convicted/acquitted/ discharged of any criminal offence in past, if any, whether he is punished with imprisonment or fine;
AND (2) Prior to six months of filing nomination, whether candidate was accused in any pending case of any offence punishable with imprisonment for two years or more and in which charge was framed or cognizance taken note of by Court of law.
22. It was submitted that in pursuance of said directions, provisions of RoPA came to be amended by RoPA (3rd amendment) Act, 2022, with retrospective effect from 24.08.2002 inserting Section 33A as follows:
"Sec.33A. Right to information -
1) A candidate shall, apart from any information which he is required to furnish, under this Act or the rules made thereunder, in his nomination paper delivered under sub-section (1) of Section 33, also furnish the information as to whether--
(i) 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 by the court of competent jurisdiction;
(ii) he has been convicted of an offence [other than any offence referred to in sub-section (1) or sub-section (2), or covered in sub-section (3), of Section 8 and sentenced to imprisonment for one year or more."19
23. It was submitted that while considering constitutionality of said amendment, Hon'ble Supreme Court in PUCL's case (supra) held as follows:
" 115. As regards the first aspect, namely, criminal record, the directives in Assn. for Democratic Reforms case :
"(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.
Prior to six months of filing of nomination, whether the candidate is an 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."
As regards the second directive, Parliament has substantially proceeded on the same lines and made it obligatory for the candidate to furnish 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 by the competent court.
However, the case in which cognizance has been taken but charge has not been framed is not covered by clause (i) of Section 33-A(I).
Parliament having taken the right step of compelling disclosure of the pendency of cases relating to major offences, there is no good reason why it failed to provide for the disclosure of the cases of the same nature of which cognizance has been taken by the Court. It is common knowledge that on account of a variety of reasons such as the delaying tactics of one or the other accused and inadequacies of the prosecuting machinery, framing of formal charges gets delayed 20 considerably, especially in serious cases where committal procedure has to be gone through. On that account, the voter/citizen shall not be denied information regarding cognizance taken by the Court of an offence punishable with imprisonment for two years or more. The citizen's right to information, when once it is recognized to be part of the fundamental right under Article 19(1)(a), cannot be truncated in the manner in which it has been done. Clause (i) of Section 33-A(I) therefore falls short of the avowed goal to effectuate the right of information on a vital aspect. Cases in which cognizance has been taken should therefore be comprehended within the area of information accessible to the voters/citizens, in addition to what is provided for in clause (i) of Section 33-A.
116. Coming to clause (ii) of Section 33-A(I), Parliament broadly followed the pattern shown by the Court itself. This Court thought it fit to draw a line between major/serious offences and minor/non-serious offences while giving Direction 2 (vide para 48). If so, the legislative thinking that this distinction should also hold good in regard to past cases cannot be faulted on the ground that the said clause fails to provide adequate information about the candidate. If Parliament felt that the convictions and sentences of the long past relating to petty/non-serious offences need not be made available to the electorate, it cannot be definitely said that the valuable right to information becomes a casualty. Very often, such offences by and large may not involve moral turpitude. It is not uncommon, as one of the learned Senior Counsel pointed out that the political personalities are prosecuted for politically related activities such as holding demonstrations and visited with the punishment of fine or short imprisonment. Information regarding such instances may not be of real importance to the electorate in judging the worth of the relative merits of the candidates. At any rate, it is a matter of perception and balancing of various factors, as 21 observed supra. The legislative judgment cannot be faulted merely for the reason that the pro tempore directions of this Court have not been scrupulously followed. As regards acquittals, it is reasonable to take the view that such information will not be of much relevance inasmuch as acquittal prima facie implies that the accused is not connected with the crime or the prosecution has no legs to stand. It is not reasonable to expect that from the factum of prosecution resulting in acquittal, the voters/citizens would be able to judge the candidate better. On the other hand, such information in general has the potential to send misleading signals about the honesty and integrity of the candidate.
117. I am therefore of the view that as regards past criminal record, what Parliament has provided for is fairly adequate."
24. But, referring to Krishnamoorthy's case (supra), tribunal held that non-disclosure of criminal antecedents amounted to corrupt practice. In said judgment, Hon'ble Supreme Court found nexus between undue influence defined in Sec.123(2) and Sec.33-A of RoP Act. Sec.29(2) of KM Act refers to definition of undue influence among corrupt practices as defined in Sec.123(1) of RoP Act. Said reference would invite interpretation of Section 33-A of RoP Act, which restricts disclosure to such criminal case antecedents wherein candidate was sentenced to imprisonment for period of one year or more and validity of said amendment was upheld in PUCL's case (supra). It was submitted that when 22 petitioner himself admitted during cross-examination, that respondent no.1 had not suffered sentence of imprisonment at any time, therefore Sec.29 of KM Act regarding non-disclosure of criminal case antecedents would not be attracted and hence finding of tribunal about non-disclosure amounting to corrupt practice or undue influence would travel beyond scope of statutory provisions and application of law by reliance on notification at Ex.P.15 would be contrary to interpretation of Sec.33-A of RoP Act by Hon'ble Supreme Court.
25. It was further submitted that finding regarding non- disclosure of pending case was not supported by pleading or assertion in examination-in-chief. Therefore, reliance upon Exs. P.16 to P.21 on their mere production was illegal and conclusion of tribunal referring to them was perverse.
26. It was submitted that when knowledge of pending case was an erroneous assumption based on Ex.P.21, tribunal misapplied observations in Krishnamoorthy's case (supra) that only candidate would have special knowledge of stage of pending cases. 23
27. Insofar as irreconcilable difference between disclosed assets and income, it was submitted that while Ex.P.12 - BPL ration card and Ex.P.14 - income certificate of respondent no.1 indicated humble source of income or financial status, declaration of assets including jewelry was with reference to rental income of his wife. It was submitted that without specific and separate enquiry regarding manner of acquisition of assets, which would be outside scope of election petition, setting aside election on said ground would be highly irregular calling for interference.
28. It was further submitted that as mandated by Section 21(4) of KM Act, pleadings in election petition were required to be precise in respect of all material aspects. However, election petition which lacked in material particulars was sought to be infused with them in cross-examination. It was submitted that insofar as present case, material facts would be, whether appellant was having special knowledge of cases wherein FIR/charge sheet was filed for offences carrying imprisonment for more than two years and past cases of more than one year.
24
29. It was lastly submitted that while dealing with election petition, tribunals cannot lightly interfere with election as that would amount to upsetting mandate of ballot and which required adoption of higher standards of proof. Learned counsel relied upon decision in Veerendar Nath Goutham Vs. Satpal Singh & Ors.4 and Markio Tado Vs. Takkam Sorang5, for proposition that all material facts must be specifically proved and established. And on decisions in Mercy Kutty Amma Vs. Kadavoor Sivadasan & Anr.6, and Jeet Mohindar Singh Vs. Harminder Singh Jassy7, and decision of High Court of Bombay in Satyajeet Vs. Rajesh Vinayak Kshirsagar8.
30. On other hand Sri.Prabhugoud B. Tumbigi, learned counsel for petitioner, learned Additional Government Advocate for respondents no.9 to 11, Sri.S.Raju, learned counsel for respondent no.12 and Smt.Vaishali Hegde, learned counsel for respondents no.13 and 14 sought to support impugned order.
4 (2007) 3 SCC 617 5 (2012) 3 SCC 236, 6 (2004) 2 SCC 217 7 (1999) 9 SCC 386 8 (2019) SCC OnLine Bom. 619 25
31. It was submitted by learned counsel for petitioner that at outset, there was neither bonafide nor merit in appeal. It was submitted that respondent no.1 though fully aware about his criminal antecedents had deliberately suppressed same in violation of provisions of KM Act as well as notifications issued by State E.C. It was submitted that petitioner led oral and documentary evidence to establish that respondent no.1 was guilty of corrupt practices, whereas respondent no.1 did not even step into witness box. Hence declaration nullifying his election was justified.
32. It was submitted that while passing impugned order, Tribunal took note of contents of circular/notification issued by State E.C. on 14.07.2003 and also guidelines issued by Hon'ble Supreme Court in case of Association for Democratic Reforms (supra), which clearly mandated declaration of all criminal antecedents whether convicted, acquitted or discharged or imposing punishment of fine. Therefore, candidates were required to mention any pending case for any offence punishable with imprisonment of two years or more and in which cognizance was taken by Court of law or charge-sheet filed.
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33. It was submitted that Exs.P2, P3, P5, P6 and P16 to P21 read with Exs.R1 to R4 and R8, clearly showed that respondent no.1 was involved in several criminal cases and as per Ex.P4, he was convicted in one of them and directed to pay fine of Rs.1850/-. It was pointed out that as per Exs.P17 to P21 and Exs.R1 to R4, trial Court therein had taken cognizance and issued non-bailable warrant.
34. Learned counsel further submitted that Exs.P10 to P15 indicated that when eligibility for issuance of BPL Ration Card, annual income should less than Rs.18,000/- per annum; while respondent no.1 was possessing BPL Card, declared assets included 500 kgs of gold and silver articles and rental income at Rs.3,60,000/- per annum. Though in written statement he tried to improvise by stating that it was 499.5kKgs of silver and 500 gms of gold. It was submitted that as on date of filing nomination, value for 499.5 kgs of silver would be Rs.2,99,70,000/- and 500 gms of gold would be Rs.22,50,000/-. Hence declaration of total value as Rs.45,00,000/- would amount not only to suppression, but also misrepresentation of facts by respondent no.1 amounting to undue 27 influence and a corrupt practice. It was submitted that while issuing directions, Hon'ble Supreme Court emphasized on conduct of free and fair election, which was essential part of democratic society, wherein electorate had right to know about all criminal antecedents, source of income and assets held by candidate to enable election of candidates of high moral and ethical value. As failure to give proper declaration would be corrupt practice, declaration of election of respondent no.1 as null and void was justified. It was submitted that with emphasis on said purpose, State E.C had issued notifications on 14.07.2003 and 19.06.2018 requiring candidates to file affidavit declaration disclosing assets, liabilities, antecedents etc., in pursuance of directions of Hon'ble Supreme Court and for achieving said purpose.
35. It was submitted that in PUCL's case, it was observed that for democracy to survive, best available man should be chosen as representative for proper governance of Country. In Krishnamoorthy's case, it was held that voter had elementary right to know full particulars of candidates, who represent them and same was integral part of their right under Article 19(1) (a) of 28 Constitution of India, 1950 (hereinafter 'CoI' for short). It was also observed that withholding material particulars amounted to wielding undue influence on voters and corrupt practice. It was further submitted that Hon'ble Supreme Court in case of Lok Prahari v/s Union of India9, had applied above ratio to Municipal elections also.
36. It was submitted that when respondent no.1 accepted notifications issued by State E.C without demure and filed affidavit declaration, he was estopped from contending against notifications after being held guilty of willful non-disclosure. Reference was also made to recent reiteration of law by Hon'ble Supreme Court in case of S. Rukmini Madegowda vs. State Election Commission10.
37. Insofar as prayer for remand of matter for granting opportunity, it was submitted that tribunal had granted full opportunity to all parties and after recording evidence and hearing, passed well-reasoned order, which could not be faulted. 9 (2018) 4 SCC 699 10 2022 SCC OnLine SC 1218 29
38. It was lastly submitted that respondent no.2 - appellant in connected appeal, had not even filed written statement or raised counter claim before tribunal and had also not entered witness box or in any manner contested proceedings. Moreover, he was presently holding office of profit being President of Sira Planning Authority and filed appeal only to drag on matter and help respondent no.1. And submitted that for aforesaid reasons, both appeals were liable to be dismissed.
39. Sri Vivek S. Reddy, learned Senior Counsel appearing for Sri K.N. Subba Reddy, advocate for respondent no.2, at outset submitted that as per provisions of KM Act, in case of declaration of election of returned candidate as null and void, candidate who had secured next highest votes would be entitled to seek declaration as returned candidate and for enforcement of said right, respondent no.2 had filed appeal.
40. Insofar as appeal filed by respondent no.1, it was submitted that as per Article - 243ZA, State E.C. was vested with power under Article - 243K and was under duty to ensure free and fair election, therefore notifications issued by it in performance of 30 said function virtually to give effect to observations/directions issued by Apex Court did not call for any interference. And since legality of notifications was not questioned, all contentions to contrary were liable to be rejected.
41. It was submitted that for ensuring free and fair elections, State E.C. was not bound by provisions of statute and would be justified in mandating additional compliances. Therefore, requirement of disclosure of 'all criminal cases', when issued in tune with judicial pronouncements referred to in notifications was fully justified. And in view of admitted non-compliance, declaration granted by tribunal did not call for interference. Hence, sought for dismissal of appeal filed by respondent no.1 and for allowing appeal filed by respondent no.2.
42. In reply, learned Senior counsel for respondent no.1 referred to decision of Hon'ble Supreme Court in Satish Ukey v. Devendra Gangadharrao Fadnavis11, wherein after referring to it's earlier decisions in Association for Democratic Reforms & Ors. and PUCL cases (supra), had clarified meaning of word 11 (2019) 9 SCC 1 31 'information' contained in Sec.33-A of RoP Act to include information mentioned in clauses - (i) and (ii) of Sec.33-A(1) of RoP Act and to be furnished in Form no.26, which includes information concerning cases in which a competent Court has taken cognizance. This would be apart from and in addition to cases in which charges have been framed for offences punishable with imprisonment for two years or more or cases in which conviction was recorded and sentence of imprisonment for one year or more was imposed.
43. However, Hon'ble Supreme Court had clarified that proof of knowledge of such cases was required to be established and had remanded matter back for re-examination. It was submitted that in an election petition filed under Section 21, tribunal was required to consider only those disqualifications as were enumerated under Section 16 and not beyond and as tribunal had transgressed, impugned order was liable for being set-aside. On above grounds sought for allowing appeal filed by respondent no.1.
44. Heard learned counsel, perused impugned order passed by Tribunal and record.
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45. From above submission, it is not in dispute that petitioner and respondents no.1 to 8 had contested for election to council of CMC from Ward no.12. It is not in dispute that they are on electoral rolls of CMC. It is also not in dispute that in election held on 27.12.2021, respondent no.1 was declared as returned candidate on 30.12.2021.
46. While petitioner contends that acceptance of nomination of respondent no.1 by respondent no.14 - Returning Officer was illegal on account of violation of mandatory disclosure clauses amounting to undue influence a form of corrupt practice justifying declaration of election as null and void; respondent no.1 contends that there was sufficient compliance with requirements of statute and strict compliance with all conditions in notifications was not mandatory; respondent no.2 claims that he being candidate who had secured next highest votes was entitled for being declared as returned candidate in place of respondent no.1.
47. To establish his contentions, petitioner examined himself as PW.1 and got marked Exhibits P.1 to P.21, while 33 respondent did not step into witness box but got marked Exhibits R1 to R.8 during cross-examination of PW.1.
48. Main allegation against respondent no.1 is that he failed to disclose his criminal case antecedents as required and disclosure of his assets and source of income was grossly inconsistent/incorrect and therefore amounted to corrupt practice.
49. Insofar as declaration of assets, Hon'ble Supreme Court in S.Rukmini Madegowda's, case (supra) has held :
63. The question of whether the Election Commission had power to issue directions to the candidates to file affidavits disclosing the assets of their spouses, in the absence of any specific provision under the KMC Act or the Rules framed thereunder is no longer res integra. The question is squarely covered by the law laid down by this Court in Union of India v. Association for Democratic Reforms (supra), where this Court had directed the Election Commission to secure to voters, inter alia, information pertaining to assets not only of the candidates but also of their spouse and dependents.
64. The Election Commission has to act within the four corners of law made by the Parliament and/or the concerned State legislature, as the case may be, as argued by Mr. Diwan.
65. The notification dated 14th July 2003 was issued pursuant to the judgment of this Court in Association for Democratic Reforms (supra), where this Court held that "the Constitution has made comprehensive provision under Article 324 to take care of surprise situations and it operates in areas left unoccupied by legislation." The interpretation given by this Court of Article 324 of the Constitution of India is binding on all courts.
66. It would be pertinent to note that the language and tenor of Article 243-ZA(1) is in pari materia with Article 324(1) of the Constitution. The language and tenor of Section 243-ZA(1) is identical to that of Article 324(1). Articles 243-ZA(1) and Article 324(1) are set out hereinbelow for convenience:--34
"243-ZA. Elections to the Municipalities.--(1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Municipalities shall be vested in the State Election Commission referred to in Article 243-K. xxxxxxxxx
324. Superintendence, direction and control of elections to be vested in an Election Commission.--(1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission)."
67. This Court has interpreted Article 324(1) to confer wide powers on the Election Commission relating to superintendence, direction and control of preparation of electoral roles and/or the conduct of elections to Parliament and to the legislature of every State provided, of course, that the directions are not contrary to law. The interpretation of Article 324(1) to confer wide powers on the Election Commission to issue directions in respect of elections to Parliament and State legislatures would apply to Article 243- ZA(1). Article 243-ZA(1) has to be construed to confer powers on the State Election Commission to issue directions related to superintendence, direction and control of the preparation of electoral roles or for conduct of elections to municipalities.
68. The Election Commission has wide powers under Article 324(1) of the Constitution of India to issue directions necessary for conducting free and fair elections, subject to the contours of law. The power of the Election Commission includes the power to issue directions where the law is silent. The State Election Commission has the same powers under Article 243-K and 243-ZA(1) as the Election Commission of India has under Article 324(1) of the Constitution of India.
69. In Association for Democratic Reforms (supra) and in Lok Prahari (supra), this Court held that for effective exercise of his fundamental right under Article 19(1)((a), the voter is entitled to have all relevant information about candidates at an election which would include criminal antecedents, if any, of the candidate, his/her assets and liabilities, educational qualifications, etc. It may be true that amendment of the 1951 RP Act is within the exclusive domain of the Union Parliament as observed in Lok Prahari (supra) and amendment of the KMC Act is exclusively within the domain of the Karnataka State Legislature.
70. However, in light of the law declared by this Court in Association for Democratic Reforms (supra), we do not see any legal or normative impediment for the State Election Commission to issue directions requiring disclosure of assets of the candidate, his/her spouse and dependent 35 associates by way of affidavit. In issuing the notification dated 14th July 2003, the Election Commission has not encroached into the legislative domain of the Karnataka State Legislature. The direction, as contained in the notification dated 14th July 2003 had been accepted by the Appellant. Having affirmed a false affidavit, it does not lie in the mouth of the Appellant to contend that her election should not be set aside on the ground of corrupt practice under Section 35(1) of the KMC Act.
71. India is a quasi-federal State. Article 1 of the Constitution describes India as a "Union of States". Every State is an integral and inseverable part of India. The Indian polity combines the features of a federal Government with certain features of a unitary Constitution. While the division of powers between the Union Government and the State Governments is an essential feature of federalism, in matters of national importance, a uniform policy is essential in the interest of all the states, without disturbing the clear division of powers, so that the Union and the States legislate within their respective spheres. The Constitution is the supreme law for the Union and for the States supported by an independent judiciary which acts as the guardian of the Constitution.
72. There can be no doubt that the Parliament and the respective State legislatures are supreme and not bound by any advice of the Election Commission. It is equally true that the Election Commission has to act within the four corners of law made by the Parliament and/or the concerned State Legislature, as the case may be. However, in our considered opinion, the Election Commission has issued the notification dated 14th July 2003 within the contours of law.
73. In State Bank of India v. Santosh Gupta10, Rohinton Fali Nariman, J. speaking for the Bench relied upon decision of this Court in State of West Bengal v. Union of India11 and, inter-alia, reiterated the following characteristic of Indian Federalism--
"...
(c) Distribution of powers between the Union and the regional units each in its sphere coordinate and independent of the other. The basis of such distribution of power is that in matters of national importance in which a uniform policy is desirable in the interest of the units, authority is entrusted to the Union, and matters of local concern remain with the State. ..."
74. Purity of election at all levels, be it election to the Union Parliament or a State Legislature or a Municipal Corporation or a Panchayat is a matter of national importance in which a uniform policy is desirable in the interest of all the States. A hypertechnical view of the omission to incorporate any specific provision in the KMC Election Rules, similar to the 1961 Rules, expressly requiring disclosure of assets, to condone dishonesty and corrupt practice would be against the spirit of the Constitution and public interest. 36
50. Above declaration of law by Hon'ble Supreme Court is that election of a candidate could be declared as null and void even for failure to declare assets and liabilities with material particulars. While examining propriety of declaration, tribunal is not required to examine propriety of declaration, but only to verify whether declaration is complete with all material particulars so as to enable voter to make informed choice. Therefore, submission of learned Senior Counsel for respondent no.1 would be justified.
51. Indeed notification dated 14.07.2003 was issued following ratio in ADR's case (supra), Kanhiya Lal Omar's case (supra) and Common Cause case (supra). In para no.4A of appendix requires declaration with details of movable properties and para no.4B of immovable properties and para no.5 about liabilities. But, as election in question was held in year 2021, said notification was modified by notification dated 01.06.2018, which required details of PAN numbers, year of payment of Income Tax and gross income declared apart from occupation and source of income. Declaration also required furnishing of said particulars in respect of candidate/spouse and dependents.
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52. To answer whether information provided by respondent no.1 - candidate was compliant with above requirements, perusal of Ex.P.1 - affidavit/declaration would reveal that in Part-A - affidavit, respondent no.1 has declared that himself, spouse and dependants were not assessed to income tax and their taxable income was 'nil'. But, in para no.8A there is declaration of possession of 500 kgs of jewelry by spouse valued at Rs.45,00,000/-; and income of Rs.5,00,000/- from business of respondent no.1. In para no.8B, there is declaration of residential property worth Rs.50,00,000/- having rental income of Rs.3,60,000/- held by wife of respondent no.1. In para no.9 outstanding loan of Rs.10,00,000/- is mentioned. But in column no.7 of Part-B - declaration, none of above are mentioned. Hence violation of requirement is established from records.
53. Hon'ble Supreme Court in Association for Democratic Reforms case (supra) has held :
"48. 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 38 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 balance, etc.) of a candidate and of his/her spouse and that of dependants.
(4) Liabilities, if any, particularly whether there are any overdues of any public financial institution or government dues.
(5) The educational qualifications of the candidate."
(emphasis supplied)
54. Insofar as criminal case antecedents, Annexure to notification dated 14.07.2003, requires furnishing details of criminal cases not only of cases in which candidate has been convicted, but also of cases wherein he has been discharged/acquitted. In addition, candidate is required to furnish details about whether in six months preceding date of filing nomination, candidate has been accused of offences punishable with imprisonment of two or more 39 years and in which charge-sheet was filed or cognizance was taken by Court.
55. Said requirements are reiterated in Annexure to notification dated 01.06.2018. But, column no.5(a) of Part-B - declaration requires candidate to mention particulars of cases in which punishment in excess of two years is imposed; column no.5(b) of all pending cases and column no.6 of cases wherein candidate is convicted for offences other than those mentioned in Sub-sections (1) and (2) of Section 8 of Representation of the People Act, 1951 or imposed with sentence of more than 1 or 2 years.
56. In para no.5 of Ex.P1, respondent no.1 has declared that he was not convicted in any cases earlier. He also declared cases in which he was acquitted/discharged and did not suffers sentence, as 'nil'. Even details of cases for offences carrying sentence of more than 2 years, in preceding six months prior to date of filing nomination as 'nil'. Part-B declaration i.e. in para no.5(a) and (b) and para no.6 is 'nil'. Admittedly, respondent no.1 was convicted in C.C.no.578/2017 as indicated in Ex.P4 to Ex.P6 40 and Ex.R1. Though, respondent no.1 claims that he did not suffer sentence of imprisonment and was imposed only fine amount, same would not exempt mentioning in declaration, especially, when column no.6 of Part-B of Annexure to notification dated 01.06.2018 specifically mandates same. In any case, there is clear violation of para no.6 of Part-A of Annexure to said notification which mandates declaration of all cases in which candidate was acquitted etc.
57. While passing impugned order, tribunal has arrived at clear finding about failure to declare past criminal cases and also about conviction in one of them.
58. Though, tribunal has assumed that Ex.P21 as summons returned as refused in C.C.no.5730/2017, even though Ex.P21 was in fact notice issued by advocate prior to filing private complaint in cheque bounces case, said assumption and consequential finding of violation would not dilute non-compliance with requirement of declaration about criminal case antecedents.
59. There is no dispute about ratio laid down by Hon'ble Supreme Court regarding duty of candidates contesting election to 41 provide details of their assets/liabilities and criminal case antecedents to enable voter to make informed decision while casting ballot as indefeasible part of freedom of speech and expression under Art.19(1)(a) of CoI in various decisions referred to above.
60. In light of above, contention based on explanation about assets held, acquittal in criminal cases and not suffering sentence in case where he was convicted or for that matter about not being aware of cheque bounces case as per Exs.P16 to P21 would be of no consequence.
61. Likewise, since infraction with mandatory requirement regarding declaration being established based on records, admissions elicited during cross-examination of PW.1 would also pale into insignificance. As rightly contended it would not be within jurisdiction of tribunal to give finding about candidate/s possessing disproportionate assets and scope of election petition would only be to examine whether all declarations/disclosures as required are complied so as to enable voter to make an informed decision while casting his vote. Therefore, it would not be within jurisdiction of this 42 Court to examine, in absence of specific challenge whether requirements mandated were material or irrelevant and also to decide whether violation was insignificant. Especially, in view of observations in Rukmini S Madegowda's case (supra) that State E.C. was within it's powers while issuing notification dated 14.07.2003.
62. As violation of requirement regarding declaration is held established, declaration by tribunal would be fully justified even applying strict proof as held in Satish Ukey's case (supra) etc. Consequentially, appeal filed by respondent no.1 deserves to be dismissed.
63. Insofar as appeal filed by respondent no.2, admittedly no written statement was filed nor counter claim raised before tribunal. Moreover said respondent did not enter witness box to establish that he had secured next highest votes than respondent no.1 herein and was therefore entitled for declaration as sought for. It is seen from records that he has not contested proceedings in any manner whatsoever. Hence, his appeal for reliefs sought for would not be tenable. Consequently, following: 43
ORDER MFA.no.6126/2022 and MFA.no.6685/2022 are dismissed. In facts and circumstances of this case, there shall be no order as to costs.
Sd/-
JUDGE psg/grd