Karnataka High Court
Smt C S Rajini Annaiah vs The State Election Commission on 28 April, 2020
Equivalent citations: AIRONLINE 2020 KAR 967, 2020 (2) AKR 619
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF APRIL, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD
MISCELLANEOUS FIRST APPEAL NO.4023/2019 (MPA)
BETWEEN:
SMT C. S. RAJINI ANNAIAH
WIFE OF ANNAIAH
AGED ABOUT 36 YEARS,
R/AT NO.39, 12TH CROSS
OPP: GOPIKA HIGHER PRIMARY SCHOOL
MUSURU-BANNUR MAIN ROAD,
YERAGANAHALLI, SHAKTHI NAGAR POST,
MYSURU - 570 029. ... APPELLANT
(BY SRI. MANMOHAN P N, ADVOCATE)
AND:
1. THE STATE ELECTION COMMISSION
NO.8, 1ST FLOOR,
K.S.C.M.F BUILDING ANNEX
CUNNINGHAM ROAD, VASANTHA NAGAR
BENGALURU
REPRESENTED BY ITS COMMISSIONER.
2. THE DEPUTY COMMISSSIONER AND
CHIEF ELECTION OFFICER
MYSURU DISTRICT, MYSURU.
3. THE ELECTION OFFICER
MYSURU CITY CORPORATION,
WARD NO.36, YERAGANAHALLI AND
CHIEF ADMINISTRATIVE OFFICER,
KAVERI NIRAVARI NIGAMA NIYAMITHA,
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MYSURU.
4. SMT. S. RUKMINI MADEGOWDA
WIFE OF S. MADEGOWDA
AGED ABOUT 41YEARS
R/AT NO.66 RAMA MANDIRA ROAD
YERAGANAHALLI, SHAKTHI NAGAR POST,
MYSURU - 570029.
5. SMT. S. GEETHA
WIFE OF G. V. MURALI,
AGED ABOUT 38 YEARS,
R/AT NO.465/1, 5TH CROSS,
JANATHA COLONY, YERAGANAHALLI,
MYSURU - 570 011. ... RESPONDENTS
(BY SMT. VAISHALI HEGDE., ADVOCATE FOR R-1;
SRI. G.B. SHARATH GOWDA., ADVOCATE FOR R-4;
NOTICE TO R3 AND R5 SERVED;
SMT. SAVITHA., HCGP FOR R-2)
THIS MISCELLENEOUS FIRST APPEAL IS FILED UNDER
SECTION 38 OF KARNATAKA MUNICIPAL CORPORATION ACT,
AGAINST ORDER DATED 16.04.2019 PASSED IN ELECTION
PETITION NO.4/2018 ON THE IFLE OF THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE, MYSURU, DISMISSING THE
PETITION FILED UNDER SECTION 33 READ WITH SECTION 34
OF KARNATAKA MUNICIPAL CORPORATION ACT, 1976.
THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN
HEARD AND RESERVED ON 28.02.2020 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal is filed under the provisions of section 38 of the Karnataka Municipal Corporations Act, 1976 (for short, 'the KMC Act') calling in question the judgment dated 16.04.2019 in Election Petition No. 4/2018 on the file of the Principal District and Sessions Judge, Mysuru (for short, 'the trial Court'). The trial Court by the impugned judgment dated 16.0 4.2090 has rejected the appellant's Election Petition in No. 4/2018 calling in question the fourth respondent's election to the Ward No. 36 - Yeragenahalli, Mysuru City Corporation in the elections held in the month of August 2019.
2. The elections to the Mysuru City Corporation were held in the month of August 2018. The Ward No. 36 - Yeragenahalli, Mysuru city Corporation was reserved for Backward Class - B (Women). In terms of the notification -4- issued by the Government of Karnataka in the year 1995, no person coming within the Backward Class - B category would be entitled to the benefit of reservation in the seats and offices of Mayor/Deputy Mayor of City Corporations if:
(i) He/she or either of his/her parents/ Guardian /his or her spouse is a Class I or Class - II Officer in the service of the Government or holds an equivalent post in public sector undertaking or an employee under a private employer and draws a salary which is not less than of a class II officer,
(ii) He/she or either of his/her parents/guardian/his or her spouse is an Income Tax Assessee/Wealth tax Assessee,
(iii) He/she or either of his/her parents/guardians/his or her spouse is assessed to sales tax; and
(iv) He/she or either of his/her parents/guardians/his or her spouse both own -5- more than 8 acres of rain fed or dry land equivalent.
Further, as per the Orders dated 14.07.2003 and 01.06.2018 issued by the Karnataka State Election Commission's every candidate contesting municipal elections should file declaration by way of an affidavit furnishing certain details inter alia the details of the movables and immovable properties owned by the candidate and his/her spouse and dependents1.
3. The appellant as well as the fourth and the fifth respondents filed their nominations with declarations as aforesaid to contest the elections from this seat asserting that they would be entitled to contest the election as Backward Class- B persons. The appellant contested as a candidate from the Indian National Party and the fourth respondent contested as a candidate from the Janata Dal 1 The dependents would be like children, parents in-laws, siblings and others who depend on the income of the candidate. -6- (Secular) Party, and the fifth respondent contested as a candidate from the Bharatiya Janata Party. The results of the elections were announced on 03.09.2018. The fourth respondent secured the highest number of votes. The appellant secured the second highest number of votes. The fourth respondent was declared as the successful candidate and the certificate of election in the prescribed Form No. 24 was also issued on the same day.
4. The appellant has filed the election petition impugning the fourth respondent's election asserting that the appellant, after the announcement of the results, has obtained certified copies of the nomination, the declaration (the affidavit) and the enclosures filed by the fourth respondent. The appellant has also asserted that the fourth respondent in such declaration has inter alia declared that (i) her husband's name as 'Nanje Gowda', (ii) neither she nor her two children are Income Tax Assessees -7- and they do not hold any PAN Card, and (iii) the fourth respondent has further declared that neither she nor her husband either own or possess any immovable property. However, the fourth respondent's husband owns different immovable properties in Kyathamaranhalli Village, Hanchaya Village and Stahagahalli Village, Kasaba Hobli, Mysore Taluk. The appellant has furnished the details of the lands/site and the details of the motor vehicle that are allegedly owned by the fourth respondent's husband as well the name of the firm in which he is a partner.
5. The appellant has contended that the fourth respondent in furnishing false information in the declaratory affidavit filed along with the nomination form has indulged in Corrupt Practice to claim reservation under Backward Class - B because if either the fourth respondent or her husband owned immovable properties, or a PAN Card, the fourth respondent would not be eligible to contest -8- the elections to a seat reserved for backward Class-B category. The appellant, while seeking declaration that the election of the fourth respondent as void on the aforesaid ground, has also sought for declaration that she is the successful candidate on the ground that she has secured the second highest number of votes.
6. The fourth respondent, upon service of notice of the election petition, has filed objection statement contesting the petition. The fourth respondent has not denied the allegations that there is an error in Paragraph 8 of the declaratory affidavit in mentioning her husband's name and in declaring that neither she nor husband own immovable properties. But, she has asserted that she did not know that her husband owned immovable properties and therefore she has not mentioned the same in the declaration. The errors in mentioning the husband's name and the failure to furnish details of the immovable -9- properties owned by the husband are bona fide unintentional errors. As regards the contention that the fourth respondent could not have contested the elections reserved for Backward Class - B, the fourth respondent has asserted that the necessary criteria to claim reservation under such category is the caste and income of the person. She has filed necessary Certificate/s issued by the competent authority as regards her Caste and Income. The appellant has not disputed the same. As such, she is entitled to contest the seat reserved for Backward Class - B. Therefore, the nomination has rightly been accepted, and because she has secured the highest number of votes, she has rightly been declared as the successful candidate.
7. The appellant has examined herself as PW 1. The appellant in her affidavit in lieu of Examination-in- chief, has reiterated the assertions made in the petition, including the assertions as regards the errors by the fourth
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respondent in the declaratory affidavit in mentioning her husband's name and in declaring that neither she nor her husband owned any immovable property. The appellant has furnished the details of the properties owned by the fourth respondent's husband. The certified copy of the prescribed Form No. 24/25 is marked as Exhibit P1, a certified copy of the fourth respondent's nomination papers with the declaration and the annexures thereto are marked as Exhibit P2. The RTCs, Sale Deeds and Encumbrance Certificates for the properties in the name of the fourth respondent's husband as well as the Registration Form for the firm, M/s SBM developers, are marked as Exhibits P3 - P9. The appellant, apart from stating that the fourth respondent is guilty of Corrupt Practice because she has filed declaration with false information, has also stated that the fourth respondent could not have contested the election to a reserved seat as the fourth respondent's husband owned immovable properties and was a PAN card holder.
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8. In the cross-examination, the appellant has denied the suggestions that the errors relied upon by her are bona fide and unintentional. The appellant, to the specific query in the cross examination whether she knows that the fourth respondent and her family members are Income Tax Assessees and if they possess PAN cards, has stated that she does not have any personal knowledge about the same. The appellant has denied the suggestion that the fourth respondent because of her caste and income was entitled to contest the seat for Backward Class - B (women).
9. It would be relevant to mention at this point that the appellant, after the completion of her evidence, has filed an application under Order XVI Of the Code of Civil Procedure for issuance of summons to the Tahsildar, Mysrur taluk, the Commissioner Of Income Tax, Mysuru
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Region and the Regional Transport Officer, Mysore East to produce documents specified in such application and to give evidence. The trial Court by order dated 25.1.2019 has rejected such application holding that the documents specified by the appellant are public documents and they could be obtained under the provisions of the Right to Information Act, 2005 (for short, 'the RTI Act'). The appellant without first approaching these authorities for copies of the documents under the RTI Act cannot maintain the said application. The trial Court has opined that it is for the appellant to obtain all the relevant documents under the provisions of RTI act and produce the same.
10. The fourth respondent, who has examined herself as DW-1, has reiterated in the evidence that the errors pointed out by the appellant in the declaration filed by her along with her nomination papers are bona fide and unintentional errors. She has stated that she is a
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Vokkaliga by caste and her income is below the permissible limits and as such, the competent authority has issued appropriate certificate for her. She is entitled to contest as Backward Class-B candidate. She has also produced a certified copy of her nomination papers and the enclosures there to including the declaration.
11. In the cross examination, the fourth respondent has admitted that she had earlier contested Mysuru city Corporation elections. She has stated that her brother helped her in filling up the nomination papers in filing the declaration. While she does not dispute that she has indeed declared that neither she nor her husband owned immovable properties, has refused to admit the records of the properties standing in her husband's name stating that she does not know about such records. She has denied knowledge of her husband paying any income tax.
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However, she admits that her husband could be one of the partners of M/s SBM Developers.
12. The trial Court has formulated the following points for its consideration:
i. Whether the appellant proves that the fourth respondent was not eligible and did not qualify to contest in the MCC elections during August 2018 for Ward No. 36 - Yeragenahalli, which is reserved for BC-B (women) category;
ii. Whether the appellant proves that, the fourth respondent by indulging in corrupt practices, influenced the voters by suppressing the material information in the declaration;
iii. Whether the appellant further proves that, the election of the returned candidate i.e., fourth respondent in the said elections and the result declared on 03.09.2018 is liable to be declared as void;
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iv. Whether the appellant proves that she is entitled to be declared as elected candidate as she has secured the second highest number of votes in the elections by setting aside the election of the fourth respondent; and v. Whether the appellant is entitled for the reliefs sought for.
13. The trial Court has taken up all the points together for consideration. The trial Court has opined that the fourth respondent's failure to furnish the details of the properties owned by her husband would not amount to 'Corrupt practice'. The trial Court has given the following reasons for its conclusion.
Firstly, the State Government Notification dated 16.10.1995 only stipulates a candidate or his parents/guardians/spouse cannot be an Income Tax assessee. The appellant's assertion is that the fourth
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respondent's husband must be an Income-Tax assessee because he holds a PAN card. But mere possession of a PAN card does not necessarily mean that a person is an Income-tax assessee. There is no evidence to establish that the fourth respondent's husband is an Income-tax assessee.
Secondly, the initial burden is on the appellant to establish that the fourth respondent's husband is an Income Tax assesses, but the appellant has not discharged such burden. The appellant should have produced some documents to demonstrate that the fourth respondent's husband is an Income Tax Assessee.
Thirdly, the caste and income of a person would be material in deciding whether a person could claim the benefit of reservation for a certain category. The competent authority has issued necessary Certificate and such certificate would be issued only after necessary enquiry.
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This certificate is not challenged in a manner known to law, and until the Certificate is so challenged and set aside, it cannot be concluded that the fourth respondent would be ineligible to contest under Backward Class - B category.
Fourthly, the decision relied upon by the appellant is an authority on the proposition that only non-disclosure of such information as would be required under the provisions of section 33-A of the Representatives of the People Act 1951 (for short, 'the RP Act') would tantamount to Corrupt Practice. The failure to furnish the details of the immovable properties owned by the fourth respondent's husband and the suppression of the fact that he possessed a PAN card would not amount to corrupt practice as contemplated under section 39 of the KMC Act. There is also no evidence to conclude that the fourth respondent by suppressing the fact that her husband owns immovable properties has indulged in Corrupt Practice.
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14. The first limb of the arguments advanced by Mr.Manmohan P N, the learned counsel for the appellant, is that vide the notification dated 16.10.1995 the State Government has stipulated that if either the candidate or the candidate's spouse is an Income Tax Assessee, such candidate shall not be entitled to the benefit of reservation in elections to the seats and offices of a municipal Corporation. The fourth respondent's husband owned different properties, and this fact is suppressed in the declaratory affidavit filed by the fourth respondent. The fact that the fourth respondent's owned immovable properties and a motor vehicle, and was also a partner of firm with a Pan Card, in the facts and circumstances of the case, establish that the fourth respondent's husband was an Income-tax Assessee. Therefore, the fourth respondent could not have contested the election to a seat reserved for Backward Class - B category.
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15. The learned counsel for the appellant, strenuously argues that the appellant is able to discharge the initial burden of showing that that the fourth respondent's husband is an Income-tax assessee by placing on record the indisputable fact that the fourth respondent's husband is a PAN card holder and that the fourth respondent's husband, not only owns properties as aforementioned but has also been repeatedly purchasing properties. These circumstances irrefutably demonstrate the fourth respondent's financial prowess and also that he is an Income-tax assessee.
16. The learned counsel for the appellant, submits that in the circumstances relied upon by the appellant, it must be reasonably concluded that the appellant has discharged the initial burden of establishing the fact that the fourth respondent's husband in an Income-tax Assessee. But the trial Court has erred in ignoring these
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circumstances and in concluding that the appellant has not discharged the initial burden.
17. Further, the learned counsel relying upon a decision of the Division Bench of this Court in M/s.Srinivasa Traders and others v. CTO2 submits that with the appellant discharging the initial burden, the evidentiary burden was on the fourth respondent to establish that her husband is not an Income-tax Assessee. But, the fourth respondent except for pleading bonafide in not furnishing the details, which in any event is totally misdirecting has not placed any material to discharge this evidentiary burden. The trial Court has grossly erred in not assessing the evidence on record from the perspective of discharge of the initial burden and the liability to discharge the consequential evidentiary burden by the fourth respondent.
2 ILR Karnataka 1179
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18. The learned counsel for the appellant also submits that the appellant is relying upon the circumstances as aforesaid to discharge the initial burden because his application under Order XIV of the Code of Civil Procedure (for short, the CPC) requesting the trial Court to issue summons to the different authorities, including the Concerned Income Tax Officer, to produce Income Tax Return filed by the fourth respondent's husband is rejected. The application is erroneously rejected by the order dated 25.02.2019 on the ground that the details of the Income Tax Return filed by the fourth respondent's husband could be obtained by the appellant under the provisions of the RTI Act. The trial Court after rejecting the application under XVI of CPC could not have dismissed the petition holding that the appellant has not filed any further documents to establish that the fourth respondent's husband is an Income tax Assessee.
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19. The learned counsel relying upon decision of the Hon'ble Supreme Court in Girish Ramachandra Deshpande v. Central information commission and others3 submits it is held that the details of the Income Tax Returns of a person constitute that person's personal information and such information is exempt from disclosure under the provisions of section 8 (1) (j) of the RTI Act. The personal information such as details of the Income tax Returns cannot be disclosed even on the ground of larger public interest as contemplated under Section 8 (1)
(j) of the RTI Act merely because the fourth respondent's election is impugned. The Mumbai High Court in Shailesh Gandhi v. Central Information commission, New Delhi and others4 has held that the disclosure of information as regards the Income tax Returns of a candidate in an electoral fray (or the Income Tax returns of the spouse of 3 (2013) 1 Supreme Court cases 212 4 2015 (5) Maharashtra Law Journal
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that candidate) to secure probity in public life would not satisfy the test of 'larger public interest' contemplated under section 8 (1) (j) of the RTI Act to justify disclosure of the details of the Income Tax returns as an exemption to the rule against disclosure.
20. However, though the learned counsel for the appellant strenuously argues that the requisition for information as to the details of the Income Tax Assessee for reasons of ensuring probity in public life would not answer the test of larger public interest as contemplated under Section 8 (1) (j) of the RTI Act, fairly submits that this proposition will have to be tested in the light of the recent decision of the Constitutional Bench in Central Public Information Officer, Supreme Court of India v. Subash Chandra Agarwal5.
5 2019 SCC Online 1459
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21. The learned counsel for the appellant, lastly canvasses that the State Election Commission has issued specific orders as regards the declaratory affidavit that a candidate should file along with the nomination; a candidate, as part of such declaratory affidavit, will have to furnish the details of the assets and liabilities by way of listing the properties owned by the candidate or his/her spouse as well as listing the liabilities. The requirement notified by the State Election Commission to furnish the details of Assets and Liabilities would be in consonance with the law declared by the Hon'ble Supreme Court in its decision in Union of India v. Association for Democratic Reforms and another6 and People's Union for Civil Liberties (PUCL) and another v. Union of India and another7. The fourth respondent in furnishing false information in the declaratory affidavit in stating that her 6 (2002) 5 Supreme Court Cases page 294 7 (2003) 4 Supreme Court Cases 399
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husband does not own immovable properties has acted is breach of this requirement. The fourth respondent's deliberate suppression of the properties owned by the fourth respondent tantamount to Corrupt Practice as contemplated under the provisions of section 39 of the Karnataka Municipal Corporations Act, 1976 (for short, 'the KMC Act') inviting the consequences of declaration of the result as void. The trial Court in concluding that only nondisclosure of criminal proceedings as contemplated under section 33-A of the RP Act would amount to corrupt practice has overlooked this very pivotal circumstance and as such, the impugned order cannot be sustained.
22. Mr. G B Sharath Gowda, the learned counsel for the fourth respondent, argues that in the facts and circumstances of the case, the appellant cannot succeed in challenging the fourth respondent's election on the ground that she is guilty of indulging in corrupt practice either
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because the fourth respondent has stated in her declaratory affidavit, by a bonafide error, that her husband did not own properties or that she has contested the elections as a Backward Class- B category candidate despite her husband being an Income tax Assessee.
23. The learned counsel submits that it is settled law that that in case of an election petition founded on allegations of Corrupt Practice, not only the material facts ('facta probanda') have to be pleaded but even the full particulars thereof (facta probantia) have to be furnished at the stage of filing of the election petition itself. The salient feature of this proposition is that the opposite party is put on notice of the case against him/her so that he/she could effectively meet the allegations, and also to ensure that the electoral mandates are not challenged frivolously. The failure to place such details on record would be fatal to an election petition. The learned counsel relies upon the
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decisions of the Hon'ble Supreme Court in Anil Vasudevan Salagoankar v. Naresh Kushali Shigoankar8, Navjot Singh Sidhu v. Omprakash Soni and others9 and Markio Tado v.Takam Sorang and others10 to buttress his submissions. The learned counsel urges that the enunciation in the aforesaid decisions in the light of the provisions of section 83 of the RP Act, given the similarity in the provisions of section 33 of the KMC Act, would apply in equal force in the present case.
24. The learned counsel, taking this Court through the pleadings, urges that the appellant in the election petition has not even alleged that the fourth respondent's husband is an Income-tax Assessee and because he is an Income tax assessee the fourth respondent could not have contested the election as Backward Class - B candidate. 8 (2009) 9 Supreme Court Cases 310 9 (2017) 4 Supreme Court Cases 348 10 (2012) 3 Supreme Court Cases 236
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The learned Counsel emphasizes that it would be beyond dispute in the present case that the appellant has not only failed to allege and plead all the particulars to substantiate that the fourth respondent could not contest the election as a Backward Class- B candidate because her husband is an Income-tax Assessee but has also failed to place on record sufficient evidence to establish the same. The learned counsel canvasses that the evidence on record is insufficient to reasonably imply that the fourth respondent could not have contested the election as a Backward Class
- B candidate because her husband is an Income-tax Assessee and therefore, the fourth respondent is guilty of corrupt practice.
25. The learned counsel submits that the charge of corrupt practice is akin to a criminal charge and has to be proved beyond doubt. The standard of proof required for establishing a charge of corrupt practice is the same as is
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applicable to a criminal charge and therefore, unless and until there is clear evidence, which is entirely credible, corrupt practice cannot be reasonably implied. The learned counsel relies upon the decisions of the Hon'ble Supreme Court in Joseph M Puthussery v. PS John and others11 and Pradip v Pranati Phukan12 in support of this proposition. In the light of this settled proposition, it cannot be canvassed on behalf the appellant that the appellant, in placing certain documents and circumstances on record, has discharged the initial burden and the fourth respondent has not discharged the evidentiary burden of establishing that her husband is not an Income-tax Assessee. The scale of proof, as required in an election petition, would not admit appreciation of evidence accordingly.
11
(2011) 1 Supreme Court Cases 503 12 (2010) 11 Supreme Court Cases 108
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26. The learned counsel also submits that the appellant, who has not even made an application under the provisions of the RTI Act for the details of the Income-tax Returns filed by the fourth respondent's husband, cannot contend that the details of the Income-tax Returns - personal information exempted from disclosure, would not be furnished even if such request is made to produce such personal information as evidence in an election trial. The learned counsel submits that an application for personal information such as Income tax details of a person will have to be considered by the concerned Public Information Officer in the light of the decision of the Hon'ble Supreme Court in Central Public Information Officer, Supreme Court of India v. Subash Chandra Agarwal supra.
27. Ms. Vaishali Hegde, the learned counsel for the State Election Commission submits that in the present case the appellant has admittedly not even submitted an
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application under the RTI Act seeking copies of the Income tax Returns of the fourth respondent's husband and in such circumstance, the contention that the concerned Public Information Officer would not have furnished the details even if an application is made is unjustified. Even otherwise, the learned counsel submits that the provisions of section 8 (1) (j) of the RTI Act will have to be read in a purposive manner keeping in view the object of the RTI Act.
28. The learned counsel submits that a candidate elected to Municipal Corporation as a councilor is a public servant holding a public office. Therefore, when a person seeks disclosure of the details of the Income Tax Returns of a candidate contesting elections, especially when such details are to be furnished as evidence in an election petition, the concerned Public Information Officer will provide the same if the officer satisfied that larger public interest justifies such disclosure. Even insofar as copies of
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the Income Tax Returns of a close relative/associate of a person who is elected as a councilor, if the concerned Public Information Officer is satisfied that furnishing such copies would serve the larger public interest, would be obliged to furnish such details. This, the learned counsel submits that would be the true import of the law declared by the Hon'ble Supreme Court in Girish Ramachandra Deshpande v. Central Information Commission and another supra. As such, this Court cannot, as argued on behalf of the appellant, conclude that details of the Income Tax Returns of a candidate are exempted from disclosure under section 8 (1) (j) of the RTI Act and perforce an application under the provisions of the RTI Act for such information would have to be rejected.
29. The learned counsel submits that as under the provisions of the RP Act even under the provisions of the KMC Act an election petition could be filed calling in
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question the election of a councilor under section 33 of the KMC Act subject to the provisions thereof. The election petition can be filed on one or more of the grounds specified in Section 35 of the KMC Act; corrupt practice committed by a returned candidate or his election agent or by any other person with the consent of returned candidate or his election agent is one of the grounds under Section 35 of the KMC Act to challenge the election of a councilor. The provisions of Section 39 of the KMC Act stipulate that certain acts shall be deemed to be corrupt practices for the purposes of the KMC Act. Section 39 (2) of the KMC Act stipulates that 'undue influence' as defined under section 123 (2) of the RP Act shall be deemed to be a corrupt practice for the purposes of the KMC Act, and Section 39 (5) of the KMC Act stipulates that publication of any statement of fact in relation to the candidature, which is false, shall be deemed to be a corrupt practice.
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30. The learned counsel further submits that the Hon'ble Supreme Court in Union of India versus Association for Democratic Reforms supra has held that the information regarding the sources of income of a candidate and his/her associates help a voter to make an informed choice of the candidate to represent a constituency and therefore is part of fundamental right of freedom of expression enshrined under Article 19 (1) (a) of the Constitution of India. This proposition has been reiterated by the Hon'ble Supreme Court in Lok Prahari v. Union of India13, and in fact the Hon'ble Supreme Court relying upon its earlier decision in Krishnamoorthy v. Sivakumar14, has declared that the non-disclosure of assets and sources of income of the candidates and their associates would constitute corrupt practice falling under the heading 'undue influence' under Section 123(2) of the RP Act. This proposition, given the provisions of Section 13 (2018) 4 Supreme Court Cases 699 14 (2015) 3 Supreme Court Cases 467
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39(2) of the KMC Act, squarely apply even in election petitions filed on similar grounds challenging the election of a councilor. Further, a candidate contesting the elections to a municipal corporation will have to, as stipulated by the State election Commission by its appropriate orders, furnish, as part of the declaratory affidavit, the details of his/ her assets and liabilities as well as the details of the assets and liabilities of his/her dependents including the spouse. If instead of furnishing such details in the declaratory affidavit it is stated that either the candidate or the spouse does not own properties, it would amount to publishing false information as regards his/her candidature as contemplated under Section 39(5) of the KMC Act and that too would be corrupt practice. The appellant's challenge to the election of the fourth respondent on the ground that the fourth respondent is guilty of corrupt practice will have to be examined in the light of these propositions.
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31. In the light of the rival submissions, the questions that arise for consideration are as follows:
a) Whether an application by a person under the provisions of the Right to Information Act, 2002 seeking details of the Income Tax Returns of a returned candidate, or the close relative/associate of such a candidate, could be rejected perforce on the ground that such details would be exempted from disclosure under the provisions of section 8 (1) (j) of the Right to Information Act, 2002.
b) Whether the trial Court is justified in dismissing the appellant's election petition under section 33 of the Karnataka Municipal Corporations Act, 1971 on the ground that the appellant has failed to prove that the fourth respondent was disqualified/ineligible to contest the elections to Ward No. 36 -
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Yeraganahalli, Mysuru City Corporation as a Backward Class candidate.
c) Whether the trial Court is justified in its finding that the appellant has failed to prove that the fourth respondent has indulged in corrupt practice in not disclosing the Assets and Liabilities of her husband and as such her election as the returned candidate from What No. 36
- Yeraganahalli, Mysuru City Corporation is void.
32. The contention that the details of Income Tax Returns of a person would not be disclosed under the provisions of section 8 (1) (j) of the RTI Act is essentially in the premise that the details of Income Tax Returns would be in the realm of personal details of a person and disclosure thereof to another person would lead to invasion of privacy of the person. The provisions of section 8 (1) (j) as well as the other provisions of the RTI Act and the interplay between the right to information in
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one person and the right of privacy/right of confidentiality (the right to anonymity) in another person has been considered by the Constitutional Bench in Central Public Information Officer v. Subash Chandra Agarwal15. Therefore, the question whether the Income tax details of a person could be disclosed under the provisions of the RTI Act will have to be considered in the light of the law exposited by the Constitutional Bench in this decision.
33. The Constitutional Bench in this decision has highlighted the significance of the different expressions such as 'Information', 'Right to Information', 'Personal Information' and 'Third Party Information' in the RTI Act with reference to the definition and the object and scheme of the Act. To begin with, given the nature of the dispute in the present case, the significance of the expressions, 15 2019 SCC Online SC 1459
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'Personal Information' and 'Third Party Information' and the principles relating thereto would be crucial for the purposes of our discussion.
34. As regards the expression 'Personal Information', the Constitution Bench, while observing that this expression has not been defined under the RTI Act, has held as follows after referring to different judicial precedents:
"Reading of the aforesaid judicial precedents, in our opinion, would indicate that personal records, including name, address, physical, mental and psychological status, marks obtained, grains and answer sheets, are all treated as personal information. Similarly, professional records, including qualification, performance, evaluation reports, ACR's, disciplinary proceedings, etc. are all personal information. Medical records, treatment, choice of medicine, list of hospitals and doctors visited, findings recorded, including that of the family
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members, information relating to assets, liabilities, income tax returns, details of investments, lending and borrowing et cetera are also personal information16.
Underlining is by this Court The Constitutional Bench has also referred to its earlier decision in Girish Ramachandra Deshpande versus Central Information Commission supra in reiterating that the details of the Income Tax Returns of a person would be Personal Information. The Constitution Bench has held that the Third Party Information, which is also not expressly defined under the RTI Act, would be information which relates to or has been supplied by a person (including a public authority) other than the information applicant and which has been treated as confidential by such third party. In light of this enunciation, it would be irrefutable that the details of the Income tax Returns of a person would not only be Personal Information but also be 16 Paragraph 59 of the judgment
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Third Party Information when such details are sought by a person other than the person who has filed the Income tax Returns.
35. The disclosure of Personal Information will be subject to the tests under section 8 (1) (j) of the RTI Act, and the disclosure of Third Party Information will have to be subject to the test and the procedural safeguards contemplated under section 11 of the RTI Act. The Constitutional Bench has discussed the tests under the aforesaid provisions of the RTI Act for disclosure of both Personal Information and Third Party Information. The merits of the tests under these provisions of the RTI Act, described as checks and balances, have been examined by the Constitution Bench in the light of the conflict between the right to information - an aspect of the right to freedom of expression under Article 19 (1) (a) of the Constitution of India- of a person who seeks information, and the right to
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privacy - a fundamental right emanating from Article 21 and from the facets of freedom of choice and dignity embodied in Part III of the Constitution of India - of the persons whose information is sought.
36. It is expounded by the Constitutional Bench that where the RTI Act contemplates the disclosure of personal information, it engages the right of privacy of the concerned individual, and RTI Act recognizes that an absolute or unwarranted disclosure of an individual's Personal Information would constitute an unwarranted invasion of the right to privacy under the statutory provisions of the RTI Act and also abridge the individual's constitutional right to privacy. But, the balance between these fundamentals right is achieved under Section 8 (1) (j) of the RTI Act in providing various checks and balances to guard against the unadulterated disclosure of personal information.
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37. The provisions of section 8(1)(j) of the RTI Act provides for a qualified exemption to the disclosure of the information if such disclosure relates to personal information. It stipulates that if the disclosure of Personal Information "has no relationship to any public activity or interest", or if the disclosure of the personal information "could cause an unwarranted invasion of privacy", the disclosure of such personal information is exempted. But, this restriction on disclosure of Personal Information may be overridden where the Public Information Officer is satisfied that the "larger public interest" justifies the disclosure. Thus, the provisions of section 8(1)(j) of the RTI Act does not contemplate absolute exemption from the disclosure of Personal Information on the ground of privacy but permits disclosure of even Personal Information if the concerned Public Information Officer is satisfied that the disclosure of such information is justified in the larger public interest.
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38. In cases where Personal information sought also qualifies as Third Party Information, the procedure under section 11 of the RTI Act is to be mandatorily followed. The procedure under Section 11 of the RTI Act is that when an application is filed for disclosure of the details of the Third Party Information, the Public Information Officer must issue notice to such third party within five days from the date of the application for information inviting response as against the disclosure of such information. If the third party responds to such notice within 10 days of receiving the notice, the Public Information Officer must take into consideration the third-party's response when making a decision with respect to disclosure or nondisclosure of the information. Proviso to section 11(1) of the RTI Act permits disclosure if the public interest in disclosure outweighs any possible harm in disclosure, as highlighted by the third- party. Therefore, in cases where information sought is both
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Personal Information and Third Party Information as in the case where the details of the Income Tax Returns is sought, the disclosure would be subject to the provisions of section 8(1)(j) and section 11 of the RTI Act. It is declared as follows by the Constitutional Bench in this regard:
"Sections 8 and 11 must be read together. Other than in a case where the information applicant seeks the disclosure of information which relates to the information applicant herself, information sought that falls under the category of personal information within the meaning of clause (j) of section 8 (1) is also third party information within the ambit of section 11. Therefore, in every case where the information requested is personal information within the operation of clause (j) of subsection 1 of section 8, the procedure of notice and objections under section 11 must be complied with. The two provisions create a substantive system of checks and balance which seek to balance the right of the information applicant to receive information with the right of the third party to prevent the disclosure of personal
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information by permitting the latter to contest the proposed disclosure."
39. The balance between the larger public interest in disclosing information and the possible harm or injury to the interests of the concerned in disclosing such information, is common to both the provisions of section 8 (1) (j) and section 11of the RTI Act It is held by the Constitutional Bench that the provisions of the RTI Act, by requiring the Information Officer to balance the public interest in disclosure against the privacy harm caused, creates a legislatively mandated measure of proportionality to ensure that the harm to the individual's right to privacy is not disproportionate to the aim of securing transparency and accountability. It has been held further that in applying the test of proportionality:
"The Information Officer must evaluate whether the "larger public interest" justifies the
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disclosure of the information notwithstanding the fact that the information is "personal information". In doing so, the Information Officer must balance the privacy interest of the individual whose personal information will be disclosed with the right to information of the public to know the information sought. The substantive content of the terms "personal information" and "public interest" must be informed by the constitutional standards applicable to the 'right to know' and the 'right to privacy' as disclosure and non-disclosure under the RTI Act directly implicate these Constitutional rights. In striking a balance within the framework of the RTI Act, the Information Officer must be cognisant of the substantive contents of these rights and the extent to which they can be restricted within our constitutional scheme. It is also crucial for the standard of proportionality to be applied to ensure that neither right is restricted to a greater extent than necessary to fulfill the legitimate interest of the countervailing interest in question."
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40. The Constitutional Bench has pointed that disclosure of different documents in different circumstances will give rise to unique 'public interest' and has listed broad principles to understand the phrase "public interest', and significantly for purposes for the purposes of this case, insofar as the conduct of elected officials, it has been observed that:
"The right to information and the need for transparency in the case of elected officials is grounded in the democratic need to facilitate better decision-making by the public. Transparency and the right to information directly contribute to the ability of citizens to monitor and make more informed decisions with respect to the conduct of elected officials. Where the misconduct of an elected representative is exposed to the public, citizens can choose not to vote for the person at the next poll. In this manner, the democratic process coupled with the right to information facilitates better administration and provides powerful incentives for good public decision-making."
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The constitutional bench has also delineated the different steps involved in applying the proportionality test in assessing the larger public interest between the two fundamental rights viz., the right to information and the right to privacy/confidentiality. The first step for the Public Information Officer is to identify the Personal Information which has to be disclosed. Once such Personal Information is ascertained, the Public Information Officer must identify the actual rights in play in an individual case. The Public Information Officer must next identify the precise interests weighing in favour of public interest disclosure and those weighing in favour of privacy and non-disclosure. The Public Information Officer must thereafter examine the justification for restricting such rights and whether the justification, either proffered or involved, is countenanced under the RTI act and by law generally. Lastly, the Public Information Officer must employ the principle of
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proportionality. The factors that should not be considered are also highlighted.
41. It therefore follows from above discussion that if an application is filed seeking disclosure of the details of the Income Tax Returns of a third person, the concerned Public Information Officer must consider the same subject to the procedure under Section 11 of the RTI Act and in compliance with the provisions of section 8(1)(j) of the RTI Act, the concerned public officer must apply the legislatively mandated test of proportionality weighing the larger public interests in disclosing the details over the invasion of privacy of the third party following the steps prescribed in applying such steps keeping the factors to be considered and not to be considered. The first question is answered accordingly.
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42. The next question for consideration pertains to one of the grounds urged in support of the challenge to the election of the fourth respondent as the returned candidate. The appellant has asserted that the State by its notification dated 16.10.1995 has stipulated amongst others that if either a candidate or the spouse of a candidate is an Income-Tax Assessee, such candidate would not be entitled to the benefit of reservation. The fourth respondent's husband is an Income-tax Assessee nevertheless, the fourth respondent, suppressing this material fact, has contested the election to the seat reserved for Backward Class-B. As such, the fourth respondent is guilty of corrupt practice.
43. There is no dispute that if a person or his/ her spouse is an Income Tax Assessee, then such person cannot contest the election to a seat reserved for a particular category. However, the factual assertion by the
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appellant that the fourth respondent's husband is an Income Tax Assessee is in serious dispute, and in fact, the appellant's case in this regard is resisted by the fourth respondent on two folds. Firstly, there is no pleading in this regard and secondly, there is no clear-cut evidence and entirely credible in this regard. It is also asserted on behalf of the fourth respondent that charge of corrupt practice is in the nature of a criminal charge and has to be proved beyond reasonable doubt.
44. This court has perused the pleadings, and although the learned counsel for the appellant vehemently argued that the fourth respondent's husband is an Income- tax Assessee and therefore the fourth respondent could not have contested the election as a Backward Class-B candidate, could not point out to this Court any pleading in this regard in the election petition. Therefore, the proposition that, "in an election petition, one has to plead
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the material facts at the outset, and the failure to plead the same is fatal to the election petition and no evidence can be led in support of a plea which is not raised in the pleading and no amount of evidence can cure the defect in the pleadings"17 would squarely apply to the present case. The appellant's challenge to the fourth respondent's election on this ground, which is introduced at the stage of evidence, would be impermissible. As such, the appellant's challenge to the trial Court's impugned judgment on this ground must fail.
45. Even otherwise, as regards the evidence placed on record by the appellant to show that the fourth respondent's husband is an Income-tax Assessee and the argument about the initial burden of proof and the evidentiary burden, it would be necessary to refer to the 17Para 22 of the decision of the Hon'ble Supreme Court in Markio Tado v.Takam Sorang and others, (2012) 3 Supreme Court Cases 236
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decision of another Constitutional Bench in Jagdev Singh Sidanti v. Pratap Singh Daulata18. It has been held as follows:
"It may be remembered that in the trial of an election petition, the burden of proving that the election of a successful candidate is liable to be set-aside on the plea that he was responsible directly or through his agents for corrupt practices at the election, lies heavily upon the applicant to establish his case, and unless it is established in both its branches i.e., the commission of facts which the law regards as corrupt, and the responsibility of the successful candidate directly or through his agents with his consent for its practice not by mere preponderance of probability, but by cogent and reliable evidence beyond any reasonable doubt, the petitioner must fail."
46. The appellant, who is relying upon documents relating to certain transactions spread over a period of 7-8 18 AIR 1965 SC 183, and is also referred to in Joseph M Puthussery v. T S John (2011) 1 Supreme Court Cases 503
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years for purchase of a residential site and an extent of 10 ½ Guntas of agricultural land and ownership of certain other agricultural lands/a motor vehicle as well as the fourth respondent's husband being a partner in a firm and a PAN card holder, has not placed any evidence of the actual income of the fourth respondents husband. It therefore cannot be contended that the appellant is able to establish beyond reasonable doubt that the fourth respondent's husband is an Income-tax Assessee and therefore the fourth respondent's election as the returned candidate must be set-aside. The appellant cannot successfully challenge the trial Court's judgment on this ground as well. The second question is answered accordingly against the appellant.
47. The appellant has challenged the election of the fourth respondent as the returned candidate also on the ground that the fourth respondent has deliberately
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suppressed that her husband owns different immovable properties in mentioning in the declaratory affidavit, which is filed along with the nomination in the prescribed form in compliance with the orders issued by the Election Commission, that he does not own any property. The appellant has listed the agricultural lands/residential site owned/purchased by the fourth respondent's husband to substantiate her case. The appellant has also furnished a certified copy of the declaratory affidavit filed by the fourth respondent along with the nomination form. The appellant's contention is that the deliberate failure to mention the details of the properties owned by the husband, and the error in mentioning the husband's name in column No. 8 of the declaratory affidavit tantamount to corrupt practice as contemplated under section 39 of the KMC Act.
48. The fourth respondent has not denied that she has stated in the declaratory affidavit that her husband
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does not own immovable/movable properties when in fact he does own certain immovable/movable properties. The fourth respondent contends that the failure to mention the details of the properties owned by her husband and the declaration that he does not own immovable/movable properties is a bona fide and an unintentional error, and that such bona fide and unintentional error, would not amount to corrupt practice as contemplated under the provisions of the KMC Act.
49. The trial Court has opined in paragraph 14 of the impugned judgment that the crucial point that needs to be seriously looked into and decided is, whether the fourth respondent by furnishing false information in the affidavit filed along with the nomination form, has indulged in corrupt practice so as to claim reservation under backward class -B category. The trial Court in answer to this question, has concluded that the fourth respondent's failure to mention
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that her husband owned immovable properties would not amount to corrupt practice because the Rules do not prescribe that non-disclosure of such details would amount to corrupt practice and in any event the properties owned by the husband does not exceed the limit of 8 hectares notified by notification dated 16.10.1995. The trial Court has also opined that the fact that the fourth respondent has not disclosed that her husband owned immovable properties, would not amount to corrupt practice as contemplated under section 39 of the KMC Act.
50. The trial court's conclusion is in this regard are perfunctory and without reference to the provisions of the KMC Act and the authorities on the point. This Court is of the considered opinion that for complete adjudication of the lis the trial Court should have considered such question with reference to the relevant provisions of the KMC Act and the decisions of the Hon'ble Supreme Court in Union
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of India v. Association for Democratic Reforms19, People's Union for Civil Liberties (PUCL) and another v. Union of India20 and in Lok Prahari vs. Union of India and others21.
51. The Hon'ble Supreme Court in its decision in Union of India v. Association for Democratic Reforms directed the Election Commission to call upon the candidates seeking election to Parliament or state legislature to file affidavit furnishing inter alia the details of the assets (immovable, movable, bank balance et cetera) of a candidate as well as his/her spouse and that of the dependants and also particulars of the liabilities. Thereafter, the Representation of the People (Amendment) Ordinance 2002 was promulgated confining details to be furnished in such affidavit only to certain criminal cases. 19 (2002) 5 Supreme Court Cases 294 20 (2003) 4 Supreme Court Cases 399 21 (2018) 4 Supreme Court Cases 699
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This ordinance was challenged in People's Union for Civil Liberties v. Union of India and others. When the matter was reserved for judgment, the Ordinance was replaced by the Representation of the People (Third Amendment) Act, 2002. This Act was notified to bring the changes in the ordinance with retrospective effect. The Hon'ble Supreme Court declared the that section 33-B of the Amendment Act, which abridged the directions in Association for Democratic Reforms, was unconstitutional and also declared that the Election commission's order insofar as it related to disclosure of assets and liabilities in the affidavits to be filed would hold good and continue to be operative. Subsequently, the Hon'ble Supreme Court in Lok Prahari vs. Union of India and others has declared that non- disclosure of assets and sources of income of the candidates and their associates would constitute corrupt practice falling under the heading "Undue Influence" as defined under section 123 (2) of the RTI Act.
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52. The provisions of section 35 of the KMC Act lists the grounds on which courts could declare the election of the returned candidate to be void, and section 35 (1) (b) mentions corrupt practice by returned candidate or his election agent or by any other person, either with the consent of a returned candidate or his election agent, as one of the grounds for declaring the election to be void. The provisions of section 39 of the KMC Act stipulate that certain acts/practices shall be deemed to be corrupt practices, and section 39 (2) mentions 'undue influence' shall be construed as corrupt practice. This provision further stipulates that 'undue influence' shall be as defined under section 123 (2) of the RP Act. Further, the publication of any statement of a fact which is false and relates to the candidature could also be corrupt practice given the language of section 39 (5) of the KMC Act.
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53. If the provisions of the KMC Act stipulate that the definition of undue influence under section 123 (2) of the RP Act would apply even in election petitions filed under the KMC Act challenging the election of a returned candidate, and the Hon'ble Supreme Court has declared that non-disclosure of assets and liabilities by a candidate would amount to undue influence under section 123 (2) of the RP Act, this Court is of the considered view that it was incumbent upon the trial Court to consider the question accordingly. The trial court has seriously erred in concluding that the Rules do not stipulate that non- disclosure of assets and liabilities would amount to corrupt practice and that only if there is failure to disclose details of certain criminal cases, it would amount to corrupt practice.
54. As the trial court has not at all considered the lis in the light of the law that could apply in the background of the pleadings and evidence on record, this Court is of the
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considered opinion that the impugned judgment requires to be set-aside and the election petition restored to the board of the trial court for reconsideration on the question, whether the fourth respondent has indulged in corrupt practice as contemplated under Section 39 of the KMC Act in mentioning that he did not own immovable/immovable properties. Further, in the interest of justice it would also be just and reasonable to direct the parties to appear before the trial Court without further notice of first hearing on 15.06.2020 while calling upon the trial Court to dispose of the election petition as expeditiously as possible but within an outer limit of six months from 15.06.2020. For the foregoing, the following:
ORDER a. The appeal is allowed, and the judgment dated
16.04.2019 in Election Petition No. 4/2018 on the file of the Principal District and Sessions Judge,
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Mysuru is set-aside, and the election petition is remanded for reconsideration in accordance with the observation by this Court;
b. The parties to appear before the Principal District and Sessions Judge, Mysuru without further notice of first hearing on 15.06.2020, and the Principal District and Sessions Judge, Mysuru is called upon to dispose of the election petition as expeditiously as possible but within an outer limit of six months from 15.06.2020.
c. No costs.
SD/-
JUDGE nv*