Sri D T Sridhar vs Sri B K Sangameshwar on 13 July, 2011

[Cites 9, Cited by 1]

Karnataka High Court

Sri D T Sridhar vs Sri B K Sangameshwar on 13 July, 2011

Equivalent citations: AIR 2012 KARNATAKA 10, 2011 (4) AIR KANT HCR 256, (2012) 2 CURCC 140, (2011) 6 KANT LJ 436, 2011 (4) KCCR SN 371 (KAR)

Bench: Ram Mohan Reddy

 

IN THE HIGH COURT OF KARNATAKA AT D' ?'C«ALGRE
DATED THIS THE 13% DAY OF JULY 201 1:, 
BEFORE M H' V
THE HONBLE MRJUSTICE    "
MISc:.CVL.NOS. 3206 &  4'  "

ELECTION PETITION_NQ. 5 032008 A  

BEIWEEZN: V

SR1 D T SRIDHAR
AGED 59 YEARS V  H
SON OFNTHIMMAJA1é>PA<'  _  - 
R/O NO 40/B, 1~D»\1,AI2r2A C1RCiI}:';  A '  V. 
B.H.R()AD,     
SHIVAMOOOA DISTRICE ,  *

     .. _  ...PETITIONER
(BY SR1. P; "S;    :~A2~Am\.:

é'.x._N_lD.

L SE: B KSANGAMESHWAR
AGED ABOUT48' YEARS
,Ef1.ONOF N E' EOTREPPA

- R/G;"'®' S M ROAD

"  OLD TOWN, BHADRAVATHI

Ex)  V

- " SE:2rAMG-€}O;A DISTRICT

'3 'SR: APEAJIIM K
--S/O_ JAVARE GOUDA
AGED ABOUT 56 YEARS
 we 3% O O No.1, NEW TOWN
~ : DHADRAVATH:

  SEDJAMODSA BESTRICT

   SR: AYANDR MANJDNAIH

Sf C} BELLADA GANESHAPPA

34



/4'*V'}3'

THESE M1se.evL. Apt:-1.reAr1oNs ARE  l
DlC'l'A'l'lNG ORDERS THIS DAY?  e_eotJ--Er"M;;oEV  

Eomzowrmo;   '
ORDERQ"

The first of these applgieatlonsllﬁlledVoriil ,'.2V/VV2t3)1O 

by the 18': respondent is   lfgof the

Representation of read with Order VI Role 16 ofC-ixrlliﬁifvoeedure, 1908, for short in the Election » frivolous and veXatio}JS;"wlll:il.e'lithe Order VII Rule 1l(a) of<..CPC tlje Act to reject the Election Petition asrgot dieeloeiriglk. cause of action.

- A " 2' 5»-Before exaririning material facts and particulars llinllthel'elleetiorrrzetition, reference may be made to the relevarxtvproirieions of the Act and Conduct of Election l'-.«..l"Rules§ for ehort 'Rules'. ll Sec.83 of the Act provides for eorxtents of Election Petition; Sub»sec.l(a) mandates statement oi material facts, while sub-secltb) requires thé scétting forth all fail particulars of any corrupt practice petitioner alleges including as full a statam§§r:t;"* possible of the names of par_tie.s__'a11:3§é€i' it committed such a corrupt p1*actiz:e tI%z.<:f:"

place of cornmission of eachiéiich pra"ct__ice. thereto States that whzen thcwiviipetitipnart' 'allegtzs any corrupt practice, the: téaiaauiggte.accompanied by an affidavit iirvaupport of the allegation Qt and particulars there0r1f"' No. 25, an affidavit under A perusal of the contents of .N':--3.2'§:3, vbaing an affidavit, requiring the E1ec'ti5na.peti.ti0nér'tcvstatea on oath that the statements "ir__1 't'r:_é 'rei1C.yfa;ritAvrparagraphs of the aCCOII}.p8.I1j/Jilflg Election. Petitigri a;bQtittthe Commission of the Corrupt practice '""~.__Vand par't.i;ju1ars sf such Corrupt practice mentioned in ti3.é'--.;jiai*agraphs 05 the said petition and aiso the schedule annexed thereto are true..u'"---- knowledge / information.

4. Material facts andpwparttéetzfaps set_~_ont memorandum of Election Petihtioii, briefiyjvsta.t;ed;gare:

(a) In paragraph 4, after the Completion ' of the _ on 25 / 5/ 2008, the 215% been duly declaprneid-. rnaj ority, whence the couintinig' ?,_n<'f nespondent Came out of the announced that the 2nd regponctentiiixad the election, which was also A "V-out Kannada and broadcast over L' also other media and when the 2nd Came to the counting center, was informed that it was the applicant " +v§§ho" "W738 declared eieeted, as a mistake had Vt "'oeeurrect in calculating the nurnhey of postal ballot papers pollen and on a re~--ea1en1ation of the postal M {0} further allegation of the Eleetieri petitioner that the Returning Officer and the Asst. Returning Collusion with the applicant, rnanipuleite(i--' .

figures so as to tilt the eleetieri ir:_"léLi;'oi:;r K"

applicant.

In p§3.1'3g1"2lphS 11 to l7,.i:,il'lt.._Ais e.ll57.§eCl 13? " it respondent havir1g...Veau§gie'(i:."§3.dV~ertiserr1entsti in the newspapers, on Uclaya TV, printed the Election Qbserver'e_-- register for election experlseei ' Japplieant, having not eorreet statement of election expenses,_V'ii1_'.otlier"'°words, suppressed the exact ..;speritV/"ir:eurreCl, if calculated on the fixed for such aclvertisemeritss totals to '--exeesefof the maximum prescribed limit ef it _?lzC:;O:O§G0O/- (Rupees Teri Lakhs only) as election V expenses.

git {cl} in paragraphs l8 to 20, it is stated ' even date 31/3/2008 for ?'_2«;OOC1/~_' RV' Thousand only) to each Swasahayaka Sangha Sangllal te ??'0,00,000/- (Rupees issued by the 11* responl;lel;:'t_21$.L3.1.»§l'liE>llLi'e:»'1:;eeting held on 31/3/2008 buildings, extend ufL'l':e SSS Sanghas, Samajajisw grant of sites in ofﬁeellvbearers of the caste Asse-cie1tidrls:,V .. eanvassing and persuading th_e_lr eelhlzlunity men to Vote in favour of pvlicarlf,'mzziamounts to bribery. the affidavits accempanymg the appll"€,*at£r:)'r.1is;'.Vl the deponent contends that all the ~.;i.:E£l€g_a:iO:/'.18 noticed eupra in the Eleetien Petltieim are *_'xf2f<?..g'?';i€; unnecessary, vexatleue, frivolous and do not Eihiameunt is corrupt practieesl neither disclose 113:

-9, cause of action to fall under See,iOO of iriable issues. The allegations of was on 31/3/2008, anterior to t§ie"VissL:_e'*«of events, as also whence the aprﬁearii siiI:V;;n1'ii;ted"

nomination paper, as a canciida1':e%,» on.V'25

6. The is: ap:%--1i6'aﬁiCii1 oyvivfiiing a counter affidavit dt. ... Election petitioner inat:--'ti1e..a11egations in the Election facts and material particuziarsv irveﬁivatious or in the nature of «much less imaginary. It is further_ stated _f:iiat'~ in'v_t1Vie'Viria1, petitioner would have a sof siieeess""in'Vestablishing the allegations and ih'erei'ore«._ii:iiieo_V Election Petition cannot be rejected applicant having heid out to be a reandi<:'1~a?:e;. and in order to improve his prospects in the ":ifeieei"ien having not denied the fact of pajgnnent of ?i€2;;,€)O"Q/~ to each of the 3,500 SSS Sanghas by way of lake cheques cit. Bl /3/2008, much l:)efore_.~t-h.Ae':j.fiiAingA " --«.. nomination by the applicant, wonldenojé:

fact of bribery for votes in §.ri.ew of "of°':tltie Act, as observed by the».:V'iApeXV"~.C¥::s1i-rt C. NARAYANASWAMY vs. 1;. JaEFs1§'SHEmFFi'.'vv«..

7. The 2nd applieat.io'nL the Election Petition as " of action, is accompanieti applicant stating that the Petition are liable to be St1'1:,lC'k" ioff iiljiitineeessary, vexatious and frivolous, ifi~.tl1eVabs-enee of disclosure of a cause of ~. '_ aetioii. and as ndtriabie issue arise. is resisted by filing Counter g1ffiClaVit___* the Election petitioner reiterating the ill"'~.__V"a.Verments set out in the Election Petition and that A VII Rule ll CPC has no applicability to the l Election, Petitienl it is further stated that in View ef " 'Q; 2 was SUPP {3} see ms MK E em"

"..fi3"f°e'g:g}af};ty, it is eentended, does not vitiate the issues framed, based. upon the pleachngs of the parties, it cannot be said that triabie issues do not arise._;~.

9. The first of the contentions adV'fgheed:,A_h.b_j}4 learned Sr. Ceuneel for the is-V without concealing, that 256 _posté1A.hal10ts.v'é;e.r:e :is$'§.,1.e'd to "Seva Matadararu" and "home Guards", totalling to' to be converted into vetes eaetvihih unsuccessful candidate, were not properly" the difference in total vetee the applicant and the unsueeeesfui 487 votes and therefore CE1I1I>f1.tf§:if't.VI'i??S111tV'iF3._VV%:3e€CI.eiI'iI1g as void, the election of the non-compliance with Rule 5445': of the the pasta} ballots before counting 'V the xgeieeepeléied, as recorded in the EVMSZ being a mere hi paragraph 4 of the Election Petitions it is Calculation of the postal ballots by the on the oral instruction of the'llap'pliea.inti;« _€¥it1:out«' written application, and in the'«V_al3_sence" ._of respondents polling agenta_;-V..._%:r1ueii._ . 211:; "

respondent was informeel of..l'iat§*i_iiglleeeureci"thee;highest number of votesi thereﬂwaa by the Returning Offiice:rv--._to which the petitioner at a trial.

_ l}earrie_(i*.Si*...:Co_uneel for the applicant next contends no dispute that 124,891 Votes, intotai poileol and recorded in the EVMS' as . l.'''-%.x:e1;.i._ ::ﬁSE=.'"pGSl;3.l ballote, in conformity with the entries l.rez;ordetl..:l§:§4'lttie:..Returning Officer in Part I & II of Form No,...44lll7-C.l:i':eei:1ed under Rules 49~s & 5e~(:(2) of the l'V._'Rt1lesi_llaccounting for the total number of Votes. '5f'i*eeo'r<ie<:i, the mere wrong mentioning in the document Stihecluleﬁ to the Election Petition, of the total number tat of voters as 1,221,866, having exercised issued by the Returning Officer, not form under the Act or Rules, is rieitherl ere.dilj'l'e--.:eViderigjze nor 3. formidable ground to Vc:0_r1tenld_t'l*:--:at thVerlell'ia:s Bieeri an Election malpractice or a'"tr_iable eéis_e"'rfi3ade4 out by the Election petitionerf '_

12. Thie:'*e_Qnteﬁfier:¥ Sri. P. S. Manjunatlr required in law is to plead, particulars and not the the truth would emanate and therefere vvltlie summarily reject the pe'[iti'OI'1,_. Aeeesﬁdirilg tlie learned Counsel, Sehedule~9 Petition, a document issued under the Officer, prima faeie caririet be absence of a full ﬂedged trial and on ll"".__v"ol3tairiir;§/summoning Form No. l7~C of the 'Rules'.

":l:VLee_lrr;_«ed Ceunsel hastens ':0 add that See.83{l}(a) of the l Act requires the making of eerieiee statement ef material 34 facts of which the Election petitioner relies upon, while clause (bl requires Setting forth full particLi.l.aI'?S]~.of corrupt practices.

I3. Srii D. N Nanjuncljallllliedtlly, Counsel for the applicant, c.onten'cls:lthat in paragraphs 1 1 to 17, are natiire jhimlagination and do not disclo::§e_"':.. lveﬁqljvvenditure incurred by the applicVantAV.VVolrl__l agent in excess of on the said contenti_0f1: advertisements in the . paniphlets and the TV coverage, and not at the standard tarifi}a,l as set» the Election Petitioni cannot .r:ons_titt1te aacause of action for a roving enquiry into the absence of the applicant having j inctir:jeEiAV the same. in addition, it is contended that ll..ji'»alleg.ations of failure on the part of the applicant to ' irggaintain accounts as required by Sec.77(i}&{2) of the Z14 >v§{is» Act, even if proved, will not materially affectith.e» elcc_tio"n_ Kl result, since what can be brought g;imie:4cc»se~c}":2:;[Ie)"1::

the Act, is the corrupt practice .;5§j'~ Sec.77 of the Act,__ ie., lauthorisiilg expenditure in eXcess*~..ct" azineﬁnt':pIjescribed. Even otherwise, it isA._c0ntende{ciV. thehhlvaeiéefrnents merely state that accounts by the Sec.7'7 of the Act and no t_h.-elrelsult of the Election, in so farlas' the is concerned, is materially affected to allegeti corrupt practice, so as to fall

- OO(1V}'(d.§.(i'J') of the Act.

_V P. S. Manjunath, learned Counsel, l'c.Qntc.ntlS""_thatV;'the nondisclosure cf the true and correct am*e__unte'and expenditure incurred by the applicant, is Win Vicla.ti%3n of Sec.77 of the Act and hence falls under A ":lE_.OO{l}{cl)[iV} cf the Act, being a ccrrnpt practice, is a l grcnnd tc declare the election void. The material facts M and material particulars af the eorrupf. according to learned Counsel, is__ae1.ab0ra'te'Iy" ;:i.i_veade'_{ii13_ paragraphs 11 to 17, which wh'en ;;':>'1'etve€1.'in evi{ie:1<§e,;_' would establish the eorruptp;:.actiee~,ahd Case is made out.

15. Learned Coargeei that the advertisements'_t:arrieri'"'<5i1t:V¥i31"thexlexzgejjapers and the TV channels ._prii1*;ed hafnphlets are not denied .. " V 'The 'th:e»».e.antenti0ns advanced by the learned S19)» CouV::esei;_» the applicant is that the .__set eiitv---i--a'paragraphs 18 to 20 over acts of cheques dt. 31/3/2008 for ?2,000/w 1£(:'r SSS Sanghas, at the threshold is

-- unsfistaihahle as the applicant was not a candidate on ,a'3_/ZVCQS while neminaiion was fiied, as a candidate 2:1/5/2008 and hence anierier in point ef 'time.

Aeearding ta the ieamed Sr. Counsei, See.79(}:3) ef the M Act, as amended, excludes the acts done by 3 candidate up to the date he is nominated as a eandid.s;te'}s;r2d therefore the allegation, if proved, would ' bribery by the applicant. It is v€u1'*th.er the allegation by itself and 'T constitute an inducement to-vs'~votef' to Cast: hislyote in l' favour of the applieantgfor the SSS Sanghas and other institutions;srenot'Voters.

17. for the Election petitions; the act of bribery is prior 25/ of filing of nomination by the appliesntv sis "eé1.ndidate, nevertheless, was a Memlber" of R31'-'V3.____¥Cgislative Assembly immediately p;feeedJ.ngy Elections (since the previous Assembly acted with the prospects of garnering Tyhvotes members of the SSS Sanghas and other ffesstey and eommunity leaders, on promise of sites, M

-§Q-

construction ef buildings, extension of financial benefits fer their Communities.

18. Having heard the learned Sr. Coue_eeE:Vfef"€f:e"_f applicant and the learned Ce1:; riee'1"'f_<>i*._ petitioner, perused the p1eedin4g's:,:"'.the decision making is, Whether the av'effneni;§. Petition, are vague, frivoloLLe,f. uexatious, not disclosing a deserves to be off' eef¢.seepLehtly reject the Election by the learned Sr. :Vfouneel?,f:)r Eie apppltcantf _1_9. .01";-derp better appreciate the rival "'v..cor;t,é'ni.,iensA. of the'"'parties, it is useful to refer to the

-..ebee:'ve§'t§.Ve::§~o:f_j.?:he Apex Court in the feﬁewing reported ep}'e;:.1_§iees-3~ upen by the learned Counsel for the ' "pa:'tiesv:V_. "

~",7'?t which is unnecessary, seandaioust friooious or oexatioas or which may tend to prezjudfeet embarrass or deiay the fair triad of the ~ suit. It is the duty of the Court to exat}1ine:"the A ' piaint and it need not wait tiiittthe it written statement and points otsthijfie-to: T the Court on examination of. the pZatnt':or" the V election petition finds ctoes' 'It/':l'»Cr)'V:£L-j éeézose any cause of action it... be jtzstified in striking out the pV£e_a;1in;qs.2.j_»_'f€ule I 6 itself empowers the Court ..tob.v'Vstfftke~~.:oa:tioteadings at any sta§g;e«..T:;:f-- tnay even be before to_ritten_ statement by the respondevntlbhiiof of the trial. If the Court the election petition does not zfnalte' ..:ea.u"'se of action and that the trial Vtoouidi embarrass and deiay the ~ '~iotoCeedotgs,A tZ5i_e.Court need not waitfor the filing it ' V. »'AttAl€.£4t§FT€it€n statement; instead it can proceed to .ttaefp.rettminaty objections and strike out the it If after striking out the pteadings the Cohort finds that no triable issues remain to be it ._<:on'sidered, it has power to reject the eiectton it h ' 'petition under Qrder VII Rate 1 I . "

M ,g3- Further at paragraph 14 (page 107} observed thug:

"Before we consider various ptzragro:phse»._'§f'_V the election petition to determine the Correctness' "

of the High Court erder we think it neeessaj<yVVi'to H bear in mind the nature of the-zfighsﬁ tovvyeieetfthe right to be elected and the eiection and the triai ofthe e£e"ot_to'n to contest election or to'V"qttetsti0nV"the"teleetiohnby means of an election pe'tittt3i1'&e.heithei"~Aeoh1rrLon [aw nor furtdathehtai it is Cl;

statutory right statutory provzsiottsh :£'2ephre;se'htt:ittoh- not: the People Act, 195 t.' or common law right is wetbsettted by etiterza ' of this Court in NP.

Peh2<2itts~wtt2t:i ":8 ,z'F4€'e-tttrttiztg Officet: [1952] I SCR

1. 2.18; <jo.geir1t€?aZ:?'L tfaswant: Singh, AIR 1954 SC artoi Joyttfsasu u. Debi Ghosal, [E98213 see decisions have settled the legal eutside the statutory provisions ther'e~.:ts no right to dispute an eiectiont The Regeresehtation of the People Act is Ci complete "~_.om,d setf contained eode within which any rights etatmed in reicztiott to an eteetten. or an eteettort dispute must befottnci. The provisions of the Civil M "Q4- Procedure Code are applicable to the extent as permissible by Section 87 of the Act. The sehetfte of the Act as noticed earlier would show election can be questioned under the statute' A ' provided by Section 80 on the .grou:nds'VV:a»s contained in Section 100 of ihe'lA;»:t;.tT»SeCtion<83 lays down a mandatory proois'ion in>'V_g;:foz2idir;Q.,i% '' that an election petitior'z.__:s'htall statement of material and set. full particulars of cofi--'uf. t_ p'tfaeit:iee;--l._'lThepleadings are regulated by S€CfiQ_l"l:83 obligatory on the the requisite facts, of each corrupt lithe election petition fails toll ln'ialce'lA3'out«ground under Section 100 of the«_/let it fail» threshold. Allegations of <:orrupt.. p'ract._i<:e~, are in the nature of criminal .lit"-isvnecessary that there should be no it vagueness in the allegations so that the re <:fa,ndtdate may know the case he has to it allegations are vague and general anld;_ the particulars of Corrupt praetice are not A' ._stalted in the pleadings, the triat of the election "petition cannot proceed for want of cause of action, The emphasis of law is to avoid afishtng 3% and roving inquiry. It is therefore necessary for the Court to scrutinise the pleadings relatinglqtop corrupt practice in a strict manner. "

Further at paragraph 20 (page. 1) 'A "

"Section 77 requires a separate and correct .:1cc_ount" 'all "in connection with "selection or authorised by him ozf--l""l:>'yl_:'jhiscelection "agent"

between the date ,and the date of declaration of~"tltie::'rels--:.ilt_ "election. The cand 'account of only that election agent may htaij?e Z§efore"lthe expenditure was actuallyl would imply that the candidate agent undertook to . 'reimburse the expenses which may have been '-l:j.ll'l'a?ill1a/fﬁsedll ll?y"\'him or his election agent to be

-the election. In order to constitute a "'l.--.__'co'rrapt'p'ractice as contemplated by Sections 77 and ~.tl'23{6} it is necessary to plead requisite jacts showing authorisation, or undertaking of Wreimburserrzent by the candidate or his election 'A agent. A mere vague and general statements that the ccincltdate and his workers with his consent leg spent money in election in excess of the permissible ceiling would not be suf)'Ectent'-..tto.._ constitute corrupt practice."

(2) IN HARKIRAT SINGH vs. Court at paragraph 45 (page.77_22._) A'obse:*v.edV "

"From the above pfoLz_ts"to»ns, election petition mLts.t_u:"vc_or2Atatnhh " Concise statement of 'znci.tefit;l ; which the petitioner relies. contain full particul§c1;"sf:VV'V}<)f Jgfécttce that the petitig:»ne'»f.__VdZZeges.:_Vinclztdin:;z_' at full statement of ncufnesof the to have committed such and the date and place of practice. Such election petition shot; "signed by the petitioner and *5,oe'f§,tted "-the____n:anner Zdid down in the Code of V' éfocedure, 1908 {hereinafter referred to as . for the verification of pleadings. It '' 'tye accompanied by an affidavit in the

2 ptescnibed form in support of allegation of such A' ' prczctice and particulars thereof. "

" AIR 2i;)tT)é ?1 Court to judge the conduct of the candidate, his agent or persons with the consent of candidate or his election agent, only person becomes a candidate for the V' election. A person becomes__a..cand_idate--:fot"theV election in question onlg after filing the nomination paper. In this connection,kfciferencie may be made to Seciiof'ze.t:7'.E?{b) defines 'candidate to mean'-.a"'~person;toho has been or claims to 'ivdoe been inorninated as a candidate at any_.ele_c--t:ion.A :Se'c'tio'ri~--' of the Act says that 4agoandidate'shall'Vnot deemed to be duly from a constituency unless' of causes to be deposited the anfzotints -the said section. When a pefson a'--ciarididate, was examined by this in i;-he"vwell--known case of Indira Nehru all iRq;tmara:n(195 Supp sec 22 and it '= i t (sec p. 64, para 245;

it ifiéléécis} see? :2; see: 446 §},{;\ 1951 Act uses the expression v__v~"'cahdidate" in relation to several ojfencesfor ~ purpose of ajfixing i liability with "reference to a person being a candidate. If no time be fixed with regard to a person 93% " : jadgging the legality or validity of his election being a candidate it can be said that the moment' a person is elected he "

said to hold himself out as a caaditi_atejV'forll the next election." it 4' Recently, this Court titer. of said:

"We hold' that "ail. L. _ . averrnents in paragraphs 1~-.._tg% 20 the._'mernorandum of election' petitioVn_V:linsoj_"ar:i as~.lv.they_'.'--~refer to a period' amount to corrupt tice. "

fixed with reference the papers were filed by because since that date the appellant to have legally acquired staiiis~--..of a: candidate. According to us, any V. of corrupt practice against the appellant, respondent in respect of the period the ﬁling of nomination by the appellant on 'l3Z?l.~1990, cannot Foe taken into consideration for 99 5 iﬂik Rawale 2;. Damodar Taiiy-abal l{lI.S}94} 2, candidate at an election shall keep a separate and correct account of all expencliture connection with the eiection incurre;d'*«..'or__l' , "

authorised by him or by his election rind that the accounts shall contain"such".:particut(irs.,C, as may be prescribed. Rule ofhitne Election Rules, 1961 sets"-out tit.eV'particular.sH toil be contained in the account.electionfexpenses. Subsections {1} &. of Section deal onlyusith the maintenance of .Stib:Vsection (3) of Section 77 _provides"'th;atVthei»_toitalV':of"the election expenses: to Subiés-ecvtion {1} shall not exceed' "arno be prescribed. Rule of-thle Election Rules prescribes the * S ~' for any Assembly Constituency'. to declare an election to , be void, _the..§;rounds were set out in Section 100 tithe Act; ..._Si.:ib~Section (l){b) of Section 100 re_lates_'to__ any corrupt practice committed by a irevturned'v.eandidate or his election agent or by A ant; other person with the consent of a returned 'candidate or his election agent. In order to bring it 'li"«.._aH'matter within the scope of Subsection {l){b}, the corrupt practice has to be one defined in Section 223. 'What is referred to in Subsection lei t33_ {6} of Section 123 as Corrupt practice is onlythe incurring or authorising of e.2:pendittire_i contravention of Section 17?'. SLLELJ-S€?Cii'_(;}l"£'"{f€}..'_'!'<.;§' Section 123 does not take into its folat faiivarei' to maintain true and correct; alfzcotunt-sh. language of SLlb~S€CfiOi1 clear' corrupt practice aefineti-t_herein_ can relate ovnlytllto it Subsection 3 of Sectioun*..V'77 i.e. Vtliehineurring or authorising of '"e2_cpenziitwfe in excess "of the amount prescriliedgltl' stretch of imagination be _non~eonipliance with Section: 7}T{'1'_,It'§;,v{;2} al.so~---'fall within the scope Qfiﬁection4"I--523(6}....rConsequentlg, it cannot faii'rr;z,§;czer 00{2;;z;). The attempt here by the to bring it within Section 106?/l}('d}(iz5}. requirement under 5* -that that the result of the election V i'z:LSofar as °i't""<;oncerns that returned candidate _ materially affected. It is needless to that faiiure on the part of the returned Cancfitiate to maintain accounts as required by Seetion 277(1) 82, {:2} will in no case ajffectt and . mach less materially? the result of the election, $42,

19. This view has been e.xpressed..~«~~E:{g §fiiS ' Court in Dalchand Jain 22. Narayar;'«':_jS?:aSz}€'(£rT» ' Trivedi and Ami, . A Bench €}f.tf;rec'_é that it is only Subsection can be invoked for,z:z. prac»i'iC§ Seciien 123(6) and thé"L«{§V£§rI,irave22;'§:é)'n 277 Sub~se«::téon v{.~1.}z & E2)"Ori.}ji3é5§'<;ailur.§ i:3AArr*.xi::intain correct ac<:ounts"' particulars does not fall The Bench has rrzjefiﬁél' togiseivgeiial'"'é§jf?ievr_._.c;Zecisions of the High of this Court in CA.

§;;;?;,z.9e3{:%j.:zi¢::&eci+ 1 968. "

the aforesaid settled legal prinjciplcs, ué1n,VAeX<'ﬁ;mi.h.aA{1'.0n of paragraphs 4 to 10 of the "~-E1éL£:fi<j£1A P'etiti0n,"mﬁbticed supra, prima facie contain r':;a€eri;a1_ %*:i€;ts'f.as alse particulars of allegations over iiule 54~A of the Rules in the mattﬁr of coui;:ii':g "(if votes received by post, in other Words, pas:-1:31 fﬁallots, and in that View of the matter it cannot "E:2Ve s:éaid are unnecessary, ffivolgus, vexatious er not is V' '"'€:onStitu'§e :3 033.156 of action, much less 21 triable isfhf. E' La.) 1.1':

The averments are concise statements ef material facts and do not call for striking down the said much less reject the petition. Though it ~ that adding up of the number of postal ;z:é11¢{§.§;11e;g;;d:yh"' not accounted for; and assumifsg 'these to favour Of the 211:: responderitviéweuldh'net 'nu1é;t'eh§3;iiyw :é.:ffect" V the declaration of the ﬁ--naeeej§tab}.e: since it is at a trial that the postal and recorded in Rule 54;-A and total ::'hAe...brought to fore and theref:0r'e'"'a. establishing a ground Act. In that View of the matter; 8}" must necessarily fai}.

2 1;._ -f"fIt'2e_ 2115 Contention over material facts and .Ii12§i*€Fi$'.J' hhgjafﬁiehulars set out in paragraphs Ii ta 1'? 'V Cotﬁd dieseeted into two parts. One, the allegations "..f..<>xi'"'T1'1.<;;n~eempIie.nee with See.?'?' of the A-:11'; 3 eermpt

-- §:;;a,'C"A€iC€ faﬁing under Sec. 123(6) and as a Consequence lei ~36- tmcier Sec:.lO0(l){ci)(:v} of the Act ar:d~V----thie~., failure of the applicant to maintain by Se<:§7'7{l}&[2} of the Act,' _4 l (1) The 151 part that adV~e'rti:;herﬁe1r1tle in newspapers, IV ehannelellllahei ;5r.i._nted ﬁariiphlets were not aecounteii. for andth{>SveAAaC::0t1nted were short aecottnted, AvV_et'3apleC1 x-;§?itlgf._':%VtlE1e Election Observerkg of accounts maintaiﬁleﬁt. ' /theejif V towards election e>gp,ehSe.5; ':;g;it material facts and parti.c1ll.ars,: "proved would establish ineurrlngof the applicant in excess of E1are§Crihed....l_i_mit of ?10,00,000/ - (Rupees Ten ' in other words, if the calculation of 2 "exper1:ée~% 'i;s'lWerl<:ecl out an the basis of the tariff allegeti"'i:n the petition, it would exee ed the A. ,;}tes'e1:ibe(i limit. The mere cententien that there ll "i:S;Vi0latiOf1 of Se::;7?' of the Act does not by itself ething more eeme to the aid ef the eleetien tri M37"

petitioner though material facts cf expenfiitfliifeihailiit:""'--i ' excess of the prescribed li1:nit.~is.,._in Sub--~sec.{3) of Sec.?'7, as rightiy learned Sr. Counsel fcrhthepapplicantp, allegations of material paitti-eiilats over expenses actually "inct1r'«;7ec'i_>'nf'*~a:iti1:;;>rised by the applicant and not possibility of the applice{nt__._tol:l3aizeJe2§peAn'dec1"'n1oneys towards the llaelcordance with the tarziiff " H-Election Petition. In addviticin, in under Sec.lOO(1)(d)(iV), it must the result of the election in 'far as i't»._(:0nce::ns the applicant, the returned A <._canE:lidat'e«., is materially affected due to the said *i'<__::.::i"i*:i'ptV practice' Such an averment is not A 'fsrthc'c.tning in the Election Petition. Yet again, Sec,83 of the Act provides far 1 centents cf an Election Petition and the provise states that where petitioner aliegesh..:<:oi'rtiﬁt"

practice, the petition shall a1s::"'be- an affidavit in the preseribeel'«forrii'l the allegation of such "the particulars thereof Rule; _ of the h require an affidavit referred' of Se<:.83 of the Act to lglegistrate or a Notary No.25. A peri;_s_al_ jgiief 't:::'l'a.f:idgyriit dt. 8 /'7 /2008 ace'-omparl1§iii1g._:"the«v..l_iE1eetion Petition sworn to beforefthe l :_C'orﬁrr1issioner, is not in the prescribe'd_Forrn No."25, since the words "corrupt "practice? and """ "particulars of such corrupt V not forthcoming, except to state that l' in all the paragraphs in the Election Petitien are true to the deporienfs knowledge.

".l"{iii) The submission as regards violation of Sub- sections (1)&(2) of Seeff?' of the Act in %%Z:\ W39- maintaining a true and election expenses to fall.x§rithin.. se<:.(€:3) of See.l23 is Sub--see.[6) of Seo,.~l.;3 ofi"tiie"e_:Aet-»,i.the aineurring or authorising of olvloointravention of See? 7 of vthie in other words, SU.b-S€C.(6) of Seci_l2t3 in incurring or in contravention of Sub» sec.t3}.V_ and does not take into fold. true and correct accounts.

.._Viex>e"of-----the matter, the material facts and lV"material..:p'a,rtioulars in paragraphs ll to 17, even r a trial, do not materially affect the oéthe election and therefore deserves to be s I"'llClj'. o .

22, The last of the contentions need not detain ..,_the court for long. The applicant having e4{}-

rzeminatien as 3, candidate 0:: 25/4/2068 meaning thereby a persen who has been or eiaims to h_aVe~..been duly nominated as a candidate at an ele-ei_:ie':%i"V--' Sec.79{b) and for the purpose under SeeL34--:e;f f11e_'A<:é:_7 'AV' The petition averrnents relating 3:0 aee*Lise';iio':1..--ef said to have been eommitteﬂeh 31;' anterior to the date of horifzinejtion on 25/4/2008, whence 'iggemed to have legally acquiredtth_e In that Vi€W of the iij: ebservations of the Apex hhiﬁipelérnissible to take into ceneideraiien ef corrupt practice against the appliceuzf haVVi::1g '--Qee{1rred antecedent to 24 / 5 / 2008 '~ to. zthe h0:'1'1itiation, for judging the legality and e_:?'ei§.,diij§{f"«Qf' election. The mere eneashment of the it} the SSS Sanghas after the deciaratien resiﬁie, by itseif and nothing more eannet maierialiy VA the vaiidity ef the appiieanfe eieeiien. In that M View of the matter, the pleadings Containgd in paragraphs 18 t0 20 require to be struck of. In the result, the 13% application is --, and the 211" appiication (:i}'LSI'}f¥I'i5'>S§;:'_(';I'.::. paragraphs 11 to 17 and;1'_8 of Petition are struck of and as xaV~..¢cnsequ€n:Ce', Isézue Nos. 3, 4 and 5 stand de1eL<'ai}A-

In the p.Ve(:i,;ﬂi-ar thAé~». gaa§é,"Vji1iere shall be I10 order as to;CHoé»7:s. "- 9 5"

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Karnataka High Court