Karnataka High Court
Dr. Shambuling Patil S/O Nagendra Patil vs Arati Tiwari W/O Surajprasad Tiwari And ... on 15 October, 2024
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
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MFA No. 202019 of 2022
C/W MFA No. 202020 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
MISCL. FIRST APPEAL NO. 202019 OF 2022
C/W
MISCL. FIRST APPEAL NO. 202020 OF 2022
IN MFA NO.202019 OF 2022:
BETWEEN
DR. SHAMBULING PATIL
S/O NAGENDRA PATIL,
AGE :33 YEARS,
OCC. ASSISTANT PROFESSOR,
R/O. H.NO.10-3/15/4,
VITTHAL NAGAR,
KALABURAGI-585103.
Digitally signed ...APPELLANT
by SACHIN
Location:
HIGH COURT (BY SRI. JAYAKUMAR S.PATIL, SENIOR COUNSEL FOR
OF SRI ASHOK MULAGE, ADVOCATE)
KARNATAKA
AND
1. SHRI CHANNABASAYYA SWAMI NANDIKOL
S/O GURUPADAYYA SWAMI,
AGE : 59 YEARS,
R/O. H.NO.10-597/1,
S.B.CHOWK, BRAMHAPUR,
KALABURAGI-585103.
2. SHRI VISHWANATH
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MFA No. 202019 of 2022
C/W MFA No. 202020 of 2022
S/O BASANNAGOUDA PATIL,
AGE : 31 YEARS,
R/O. H.NO.10-2-3B,
S.B.TEMPLE ROAD,
NEAR MAHILA MANDAL,
SANGAMESHWAR COLONY,
KALABURAGI-585103.
3. SHRISURAJPRASAD TIWARI
S/O KESHAVPRASAD,
AGE : 54 YEARS,
R/O. H.NO.10-105/13-B,
JAYALAXMI, SHARAN NAGAR,
GARDEN ROAD,
KALABURAGI-585103.
4. SHRIRAGHAVENDRA V. KULKARNI,
AGE : 46 YEARS,
R/O. H.NO.10-225,
S.B. TEMPLE ROAD,
SUBHASH CHOWK, BRAMHAPUR,
KALABURAGI-585103.
5. THE STATE ELECTION COMMISSION,
NO.8, 1ST FLOOR, KSCMF BUILDING,
ANNEX, CUNNINGHAM ROAD,
VASANTH NAGAR,
BENGALURU-560052 (KARNATAKA).
6. THE DEPUTY COMMISSIONER AND
CHIEF ELECTION OFFICER,
KALABURAGI-585101.
7. THE ELECTION OFFICER/
RETURNING OFFICER,
KALABURAGI CITY CORPORATION,
WARD NO. 36 AND COMMISSIONER,
KALABURAGI URBAN DEVELOPMENT AUTHORITY,
KALABURAGI-585101.
...RESPONDENTS
(BY SRI. VISHAL PRATAP SINGH, ADVOCATE FOR R1;
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MFA No. 202019 of 2022
C/W MFA No. 202020 of 2022
SRI SACHIN M.MAHAJAN, ADVOCATE FOR R2;
SRI GIRISH KULKARNI, ADVOCATE FOR R3 AND R4;
SRI AMRESH S.ROJA, ADVOCATE FOR R5;
SMT.AARTI PATIL, HCGP FOR R6; AND
R7 - SERVED)
THIS MFA ISFILED U/S 38 OF KARNATAKA MUNICIPAL
CORPORATION ACT, PRAYING THAT THIS HONOURABLE COURT
MAY BE PLEASED TO ALLOW THE APPEAL AND SET ASIDE THE
ORDER DATED 14.09.2022 PASSED IN ELECTION PETITION
NO.03/2021 BY THE III ADDL DISTRICT AND SESSIONS
JUDGE, AT KALABURAGI BY REJECTING THE ELECTION
PETITION FILED BY THE RESPONDENT / PETITIONER, IN THE
INTEREST OF JUSTICE.
IN MFA NO. 202020 OF 2022 :
BETWEEN
DR. SHAMBULING PATIL
S/O NAGENDRA PATIL,
AGE : 33 YEARS,
OCC : ASSISTANT PROFESSOR,
R/O. H.NO.10-3/15/4,
VITTHAL NAGAR,
KALABURAGI-585103.
...APPELLANT
(BY SRI. JAYAKUMAR S.PATIL, SENIOR COUNSEL, FOR
SRI ASHOK MULAGE, ADVOCATE)
AND
1 . ARATI TIWARI
W/O SURAJPRASAD TIWARI,
AGE : 46 YEARS,
R/O. H.NO.10-105/13-B,
JAYALAXMI, SHARAN NAGAR,
GARDEN ROAD, KALABURAGI - 585 103.
2. SHRICHANNABASAYYA SWAMI NANDIKOL,
S/O GURUPADAYYA SWAMI,
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MFA No. 202019 of 2022
C/W MFA No. 202020 of 2022
AGE : 59 YEARS,
R/O. H.NO.10-597/1, S.B. CHOWK,
BRAMHAPUR,KALABURAGI-585103.
3. SHRIVISHWANATH
S/O BASANNAGOUDA PATIL,
AGE : 31 YEARS,
R/O. H.NO.10-2-3B,
S.B.TEMPLE ROAD,
NEAR MAHILA MANDAL,
SANGAMESHWAR COLONY,
KALABURAGI-585103.
4. SHRISURAJPRASAD TIWARI
S/O KESHAVPRASAD,
AGE : 54 YEARS,
R/O. H.NO.10-105/13-B,
JAYALAXMI, SHARAN NAGAR,
GARDEN ROAD, KALABURAGI 585 103.
5. SHRIRAGHAVENDRA V. KULKARNI,
AGE : 46 YEARS,
R/O. H.NO.10-225,
S.B. TEMPLE ROAD,
SUBHASH CHOWK,
BRAMHAPUR,
KALABURAGI-585103.
6. THE STATE ELECTION COMMISSION,
NO.8, 1STFLOOR, KSCMF BUILDING,
ANNEX, CUNNINGHAM ROAD,
VASANTH NAGAR,
BENGALURU-560052.
7. THE DEPUTY COMMISSIONER AND
CHIEF ELECTION OFFICER,
KALABURAGI-585101.
8. THE ELECTION OFFICER/
RETURNING OFFICER,
KALABURAGI CITY CORPORATION,
WARD NO.36 AND COMMISSIONER,
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MFA No. 202019 of 2022
C/W MFA No. 202020 of 2022
KALABURAGI URBAN DEVELOPMENT AUTHORITY,
KALABURAGI-585101.
...RESPONDENTS
(BY SRI. AMEETKUMAR DESHPANDE, SENIOR COUNSEL
FOR SRI GANESH S.KALBURAGI , ADVOCATE FOR R1;
SRI VISHAL PRATAP SINGH, ADVOCATE FOR R2;
SRI SACHIN M.MAHAJAN, ADVOCAET FOR R3;
SRI GIRISH KULKARNI, ADVOCATE FOR R4 AND R5;
SRI AMARESH S.ROJA, ADVOCATE FOR R6;
SMT.AARTI PATIL, HCGP FOR R7; AND
R8- SERVED)
THIS MFA ISFILED U/S 38 OF KARNATAKA MUNICIPAL
CORPORATION ACT, PRAYING THAT THIS HONOURABLE COURT
MAY BE PLEASED TO ALLOW THE APPEAL AND SET ASIDE THE
ORDER DATED 14.09.2022 PASSED IN ELECTION PETITION
NO.02/2021 BY THE III ADDL DISTRICT AND SESSIONS
JUDGE, AT KALABURAGI BY REJECTING THE ELECTION
PETITION FILED BY THE RESPONDENT / PETITIONER, IN THE
INTEREST OF JUSTICE.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 04.09.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
CORAM: HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
CAV JUDGMENT
1. These two appeals are filed under Section 38 of the Karnataka Municipal Corporation Act, 1976 ("the KMC Act" for brevity) challenging the order passed by the District Judge whereunder the election of the appellant as -6- NC: 2024:KHC-K:7677 MFA No. 202019 of 2022 C/W MFA No. 202020 of 2022 a Corporator to Ward No.36 of the Kalaburagi Municipal Corporation was declared void and, consequently, set- aside.
2. The following facts are not in dispute:
a. On 11.08.2021, a notification was issued regarding election to the Kalaburagi Municipal Corporation in which the last date fixed for filing the nomination was 23.08.2021, and the date fixed for scrutiny of nomination was 24.08.2021.
b. The appellant herein filed his nomination application and the same was accepted before conducting the elections on 03.09.2021.
c. On 06.09.2021, the result of the election was declared, and the appellant was declared to be the successfully returned candidate, and on 23.09.2021, the results were notified.-7-
NC: 2024:KHC-K:7677 MFA No. 202019 of 2022 C/W MFA No. 202020 of 2022 d. On 05.10.2021, an election petition was filed by Smt. Arati Tiwari (the voter in Ward No.36) which was numbered as Election Petition No.2/2021.
e. On 22.10.2021, another election petition was filed by the Sri. Channabasayya Swamy Nandikol, who was also a voter in Ward No.36 and the same was numbered as Election Petition No.3/2021.
3. The main contentions urged in these two election petitions were in relation to the affidavit which was required to be filed in accordance with the notification dated 14.07.2003, wherein:
i. The appellant had wrongly shown that he was aged 38 years;
ii. He had failed to provide the details of his social media accounts;
iii. PAN card numbers, income tax returns of his wife and as well as parents were not disclosed;
iv. The particulars of his wife and parents -- as regards the vehicles that they owned and gold and silver that they owned -- were not disclosed;-8-
NC: 2024:KHC-K:7677 MFA No. 202019 of 2022 C/W MFA No. 202020 of 2022 v. The immovable properties owned by his parents were not disclosed;
vi. The loans availed by his parents were not disclosed; and vii. Full particulars of his educational qualification were not disclosed and it had only been stated that he had completed his Ph.D degree in the year 2018.
4. The election petitioners, therefore, contended that this amounted to non-declaration of mandatory particulars, the consequence of which was suppression of material facts amounting to 'corrupt practice' and the election was thus required to be set-aside.
5. The appellant contended that along with the affidavit and declaration, he had also produced documents including the election ID card, PAN card, SSLC marks card and a host of other documents and, therefore, the allegation that he had suppressed material facts was untenable. He contended that he had produced his SSLC marks card itself and the mentioning of his age as '38 -9- NC: 2024:KHC-K:7677 MFA No. 202019 of 2022 C/W MFA No. 202020 of 2022 years' in instead of '32 years' would not amount to suppression but would only be a clerical mistake, and this defect was not substantial in nature.
6. He also stated in paragraph 3 of the affidavit that he could not provide his social medial account details and had only provided his cell number, and that this error in not providing the details of his social media accounts would not amount to 'corrupt practice'. He stated that he had not provided the PAN card number of his wife by oversight, but the PAN Card had, in fact, been enclosed along with the affidavit and there was thus no suppression of any material facts.
7. As for as the assertion that he was required to state the movable and immovable properties owned in the joint names of his and his dependents, he stated that he had no movable or immovable jointly with his wife and his dependents, and that he had, in fact, produced the record of rights (ROR) regarding the properties held by his father. He thus contended that there was no suppression in this
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NC: 2024:KHC-K:7677 MFA No. 202019 of 2022 C/W MFA No. 202020 of 2022 regard as well. He stated that he had enclosed his wife's PAN card and had also stated that she had been employed as an Assistant Professor and there was therefore no suppression of facts. He contended that he had provided all the information required under law and that he could not be accused of indulging in 'corrupt practice'.
8. The Trial Court framed the followings issues:
1. Whether the petitioner proves that respondent No.1 has not disclosed his assets and liabilities, assets of family members in his affidavit submitted along with nomination paper as per the requirement.
2. Whether the petitioner proves the information provided by respondent No.1 in his affidavit along with nomination paper and documents produced are incomplete, incorrect, false and respondent No.1 suppressed materials facts and documents while submitting nomination paper.
3. Whether the respondent No.1 proves, respondent No.1 has not suppressed any material facts while submitting nomination paper.
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4. Whether the petitioner proves non-disclosure of assets and source of income and giving information constitutes corrupt practice amounting to misguide, suppress and keep the voters in dark.
9. After assessing the evidence, the Trial Court came to the conclusion that the appellant had not disclosed his assets and liabilities, the assets of his family members in his affidavit along with his nomination paper. It also held that the appellant had furnished incomplete and incorrect false information in his affidavit filed along with the nomination paper and the non-disclosure of assets, source(s) of income and giving incomplete information constituted 'corrupt practice', which itself was designed to misguide, suppress and keep the voters in the dark. It accordingly came to the conclusion that the elections were declared as void.
10. In order to come to this conclusion, the Trial Court took note of the fact that the appellant had remarked as 'nil' in relation to the column pertaining to email ID and
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NC: 2024:KHC-K:7677 MFA No. 202019 of 2022 C/W MFA No. 202020 of 2022 social media information. It also noted that in the affidavit regarding the PAN number, the year of tax paid and incomes of the appellant, his wife and his parents were mentioned as 'nil', the same 'nil' declaration was made even with regard to their movable properties. He had indicated that his wife and parents did not own any properties as 'nil' in respect of immovable properties. Even in respect of the properties owned by his wife and parents, he had mentioned it as 'nil' though his parents owned certain properties.
11. The Trial Court took note of the fact that he had also not declared the loans that had been availed by his parents and this amounted to suppression in the affidavit and declaration. It also found that in the affidavit, he had merely stated that he had obtained a Ph.D. in the year 2018, but had not furnished the full particulars. It also found that he had stated that he had declared an income of Rs.8,10,350/- for the year 2020-2021, but the particulars relating to his dependents was shown as 'nil'
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NC: 2024:KHC-K:7677 MFA No. 202019 of 2022 C/W MFA No. 202020 of 2022 and the total value of movable and immovable property were also shown as 'nil'.
12. The Trial Court, placing reliance on the decision of the Hon'ble Supreme Court in the case of S. Rukmini Madegowda v. State Election Commission & Ors.1, concluded that it was the duty of the contesting candidate to verify the contents of the affidavit and the declaration before submitting the same to the Returning Officer instead of delegating the same to his uncle. He found that the appellant was not a layman and had sufficient time to verify the nomination i.e., from 19.08.2021 till its filing on 23.08.2021.
13. It also concluded that it was admitted that the appellant was serving as an Assistant Professor in PDA College, Kalaburagi and was getting a monthly salary from the local body i.e., HKE's Society which was contrary to the provisions of Section 26(1)(c) of the KMC Act and, 1 2022 SCC OnLine SC 1218
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NC: 2024:KHC-K:7677 MFA No. 202019 of 2022 C/W MFA No. 202020 of 2022 therefore, took the view that the appellant had failed to furnish complete and true information in the affidavit-cum- declaration, and the election could thus not be sustained.
14. Being aggrieved by this decision of the Election Tribunal, these appeals have been preferred; and it is argued by the learned senior counsel that the suppression of facts should be material and of substance. He submitted that mere omission of furnishing of some information would not amount to a 'corrupt practice'. He submitted that the wrongful mention of the age, failure to provide details of social media accounts were trivial in nature and the same would never result in 'corrupt practice'.
15. Learned senior counsel submitted that the petitioner had gotten married on 21.06.2021 and immediately thereafter, due to the onset of an inauspicious month, his wife had gone to her parents' house and the nomination was filed on 23.08.2021; and given the fact that he was newly married, he was not aware of the details of his
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NC: 2024:KHC-K:7677 MFA No. 202019 of 2022 C/W MFA No. 202020 of 2022 wife's financial background and, hence, this omission should also not be construed as 'corrupt practice'.
16. Similarly, he contended that the allegation that he had not mentioned the details of his parents' immovable properties would also be of no consequence, since he has produced the record of rights (RTC) pertaining to the lands owned by his father along with his affidavit. He also argued that in the record of rights, the loans that his parents had availed had also been disclosed and there was therefore no corrupt practice committed by the appellant.
17. Lastly, it was argued that the furnishing of full particulars of schooling and college would also not constitute 'corrupt practice' since the appellant had declared that he was a holder of a Ph.D degree and he had produced all the certificates relating to his education. Learned senior counsel also submitted that assuming that certain columns were not answered in the positive, all the documents relating to those columns had nevertheless
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NC: 2024:KHC-K:7677 MFA No. 202019 of 2022 C/W MFA No. 202020 of 2022 been furnished and it could therefore not be alleged that the appellant was guilty of indulging in 'corrupt practice'.
18. Learned senior counsel appearing for the respondents (election petitioners), per contra, contended that a three-judge Bench of the Hon'ble Supreme Court in S. Rukmini Madegowda's case (supra) has clearly held that a false declaration with regard to the assets of a candidate, his/her spouse or dependents would constitute 'corrupt practice', it may be presumed that a false declaration would impact the election. He submitted that in light of this declaration of law by the three-judge Bench of the Hon'ble Supreme Court, which is also rendered in the context of a wrongful mention made in the affidavit relating to an election of a Corporator under the KMC Act, the arguments of the appellant would have to be rejected.
19. He submitted specifically that the appellant, a Ph.D degree holder, had categorically stated that his wife was not an income tax assessee and that she did not possess a Bank account. He submitted that in the course of cross-
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NC: 2024:KHC-K:7677 MFA No. 202019 of 2022 C/W MFA No. 202020 of 2022 examination, the appellant categorically admitted that his wife did have multiple Bank accounts and in one such account, she had a sum of Rs.74,295/-. He submitted that the fact that the appellant's wife had bank accounts had become clear from the bank statements which were procured from the concerned banks.
20. He submitted that the appellant was also guilty of suppressing the multiple bank accounts that he held in different banks and this had come to light only when the bank statements of the appellant were summoned. He submitted that in light of the clear enunciation of law that the suppression of false declaration regarding the assets of a candidate, his wife or his dependents, would constitute 'corrupt practice', it will have to be presumed that a false declaration had been given and the Trial Court was justified in declaring the election as void.
21. In light of the arguments advanced, the only question that would arise for consideration is:
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MFA No. 202019 of 2022
C/W MFA No. 202020 of 2022
"Whether the Trial Court was justified
in setting aside the election of the
appellant on the ground that he was guilty of furnishing false information and of suppression of material facts."
22. It is not in dispute that the State Election Commission issued a notification dated 14.07.2003 which mandated the filing of an affidavit and also prescribed the format for the same. This order was passed by the State Election Commissioner in light of the judgment rendered by the Supreme Court in the case of Union of India v. Assn. for Democratic Reforms2, in which it had been held that a candidate was required to disclose the following five facts:
(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 2 (2002) 5 SCC 294 : AIR 2002 SC 2112
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NC: 2024:KHC-K:7677 MFA No. 202019 of 2022 C/W MFA No. 202020 of 2022 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.
23. The notification also states that at the time of filing of nomination, the candidate shall furnish full and complete information with regard to the above-mentioned five aspects and in the format annexed to the order.
24. Clause-3 of the order states that the non-furnishing of the affidavit or declaration by any candidate would be considered and the nomination would be rejected by the Returning Officer.
25. Clause-4 of the order reads as follows :-
"4. Furnishing of any wrong or incomplete information or suppression of any material information by any candidate in or from the said affidavit or declaration, as the case may be, may also result in the rejection of his nomination paper where such wrong or incomplete information or suppression of material
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NC: 2024:KHC-K:7677 MFA No. 202019 of 2022 C/W MFA No. 202020 of 2022 information is considered by the returning officer to be a defect of substantial character, apart from inviting penal consequences under the Indian Penal Code for furnishing wrong information to a public servant or suppression of material facts before him."
26. As could be seen from the above, the furnishing of any wrong or incomplete information or suppression of any material information would also result in rejection of the nomination paper, when such wrong or incomplete information or suppression of information is considered by the Returning Officer to be a defect of substantial character.
27. The proviso to the clause also makes it clear that the information would be considered wrong or incomplete, if it is capable of easy verification with the Returning Officer with reference to documentary proof adduced before him in the summary enquiry to be conducted by him at the time of scrutiny of the nominations.
28. In this case, though the election petitioners contended that they had raised objections, it is not in
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NC: 2024:KHC-K:7677 MFA No. 202019 of 2022 C/W MFA No. 202020 of 2022 dispute that they did not produce any documentary proof for verification of the Returning Officer. Therefore, it would have to be held that there was no objection raised regarding the false or incomplete or suppression of any material information in relation to the appellant's nomination and, therefore, no case had been made out of a wrongful acceptance of the nomination.
29. Clause-5 of the said order reads as follows :-
"5. The information so furnished by each candidate in the aforesaid affidavit or declaration as the case may be, shall be disseminated by the respective returning officers by displaying a copy of the affidavit on the notice board of his office and also by making the copies thereof available to all other candidates on demand and to the representatives of the print and electronic media."
30. As could be seen from the above, the information furnished by the candidate in the affidavit or declaration would have to be disseminated by the respective Returning Officers by displaying a copy of the affidavit on the notice board and also by making copies thereof
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NC: 2024:KHC-K:7677 MFA No. 202019 of 2022 C/W MFA No. 202020 of 2022 available to all other candidates on demand and to the representatives of the print and electronic media.
31. Clause-6 of the said order reads as follows :-
"6. If any rival candidate furnished information to the contrary, by means of a duly worn affidavit, then such affidavit of the rival candidate shall also be disseminated along with the affidavit of the candidate concerned in the manner directed above."
32. As could be seen from the above Clause-6 also goes on to state that if any rival candidate had furnished information to the contrary, by means of a duly sworn affidavit, that affidavit of the rival candidate would also have to be disseminated along with the affidavit.
33. Thus, the requirement of the notification was the filing of an affidavit in the format appended to the order and the obligation of the Returning Officer was to disseminate the information provided in the affidavit or declaration by displaying a copy of the affidavit on the notice board of his office, and also making available the affidavit and declaration to all other candidates on demand
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NC: 2024:KHC-K:7677 MFA No. 202019 of 2022 C/W MFA No. 202020 of 2022 as well as to representatives. Further, if a rival candidate had furnished information to the contrary by means of a duly sworn affidavit, such an affidavit would also have to be disseminated along with the affidavit of the candidate.
34. It would be necessary to notice here that what is required to be disseminated by the Returning Officer is only the affidavit filed by the candidate. If only the affidavit is to be disseminated and only the affidavit is to be published on the notice board, it is obvious that it is only the contents of the affidavit that would be material and nothing else. The notification does not contemplate the candidate from producing documents in support of the averments made in the affidavit.
35. If a candidate chooses to furnish documents, it would be open to the Returning Officer to either accept it or to return the same, and there is no obligation on the part of the Returning Officer to accept the documents and thereafter disseminate those documents to all concerned.
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NC: 2024:KHC-K:7677 MFA No. 202019 of 2022 C/W MFA No. 202020 of 2022 It will thus have to be held that furnishing of documents would not be a relevant factor under the notification.
36. The Returning Officer is not required to verify the information furnished in the affidavit and his only obligation is to ensure that the affidavit and declaration are filed and then disseminate the affidavit and the declaration to enable the voters to be informed of the material facts relating to the integrity and character of the candidate.
37. The Returning Officer is only expected to conduct a summary enquiry if there are objections raised regarding the veracity of the contents of the affidavit and the declaration, and this is to be only with reference to the documents produced by the objector in this regard. If the Returning Officer overrules the objections, he has to nevertheless disseminate the affidavit of the rival candidate along with the affidavit of the candidate.
38. This procedure of disseminating both the affidavit and the objections would obviously ensure that the voter
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NC: 2024:KHC-K:7677 MFA No. 202019 of 2022 C/W MFA No. 202020 of 2022 has both the information provided by the candidate and the objections raised regarding his affidavit and declaration and is thereby in a position to have the benefit of hearing both sides of the story before he determines his choice.
39. It may be pertinent state here that in S. Rukmini Madegowda's case (supra) the Hon'ble Apex Court has rejected the contention of the appellant therein that there was no statutory provision for demanding the filing an affidavit and has, consequentially, upheld the validity of said notification. It is therefore clear that a candidate, at the time of filing of his nomination, would have to necessarily adhere to the requirements stipulated in the notification.
40. Another factor to be noticed here is that the Annexure to said notification contains the following cautionary note:
"3. Please read the contents of the Annexure carefully and strike the contents not applicable to you."
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41. It is therefore clear that there is a duty cast on the candidate to read the contents of the Annexure carefully and the candidate cannot thereafter be permitted to contend that he did not notice the contents of the affidavit and that some errors had crept in.
42. The affidavit-cum-declaration, which contains questions relating to five aspects as indicated in the order of the Hon'ble Supreme Court, relates to movable and immovable property owned by the candidate, his spouse and his dependents.
43. It may be pertinent to state here that the appellant had chosen to declare his wife and his parents to be dependents on him. In his affidavit, the appellant had stated that his wife and his dependents did not have any movable property. In the column relating to immovable properties, he had stated that his parents and his wife did not own any properties.
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44. However, during the course of his cross-examination, he stated as follows :-
"17. Myself, my father and mother own agricultural lands. In respect of column pertaining to my father and mother with respect to owing of immovable properties, I did not furnish details. Witness again states, due to hurry, he did not mention, but he had submitted the documents. In my name land measuring about 10 acres, In my father name approximately 10 acres and in my mother name about 23 acres. We own one house which is standing in the name of my father and my brother."
45. It is thus clear that the appellant clearly admitted that he had not furnished the details of the immovable properties owned by his mother and father. He, however, sought to contend that he had submitted the documents relating to the properties owned by them.
46. As already observed above, the requirement of the law is to mention the details as sought, in a prescribed affidavit. If the details in the affidavit are admitted to be incorrect by the candidate himself, that would clearly amount to furnishing false information, which would constitute 'corrupt practice'.
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47. The production of documents along with the affidavit would not cure the defect because the statements in the affidavits would be a false set of facts. It is to be noticed here that what is to be disseminated and what the voters would get to see would only be the details mentioned in the affidavit.
48. A voter cannot be expected to verify the contents of the affidavit along with the documents that have been produced as the notification does not permit of furnishing of documents. Furthermore, the Returning Officer would be disseminating only the affidavit and declaration.
49. It must be kept in mind that it is simply inconceivable that a voter can be expected to scan hundreds of pages/documents and then decide as to whether a statement made in the affidavit was right or wrong. A voter is not required to adjudicate on the correctness of the facts stated by the candidate and he is only required to take cognisance of the contents of the
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NC: 2024:KHC-K:7677 MFA No. 202019 of 2022 C/W MFA No. 202020 of 2022 affidavit and the objections, if any, which were raised at the time of scrutiny.
50. The very purpose of demanding an affidavit and declaration to be filed in respect of five specific fields as directed by the Hon'ble Supreme Court, which is manifested in the notification which prescribes a particular format, is to ensure that a voter has been provided with the necessary information to make an informed choice. The exercise of filing an affidavit and a declaration is not an empty formality and is meant to simplify the task of informing a voter to make the right choice. This exercise cannot be used to complicate the process of assessing the information provided by the candidate by asking the voter to analyse the documents for its veracity.
51. It is therefore clear from the above extracted portion, that the appellant had furnished false information in relation to the immovable properties owned by his parents at the time of filing of his affidavit.
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52. As regards the bank accounts, the appellant has stated as follows:
"7) My wife name is Chetana Patil. My mother name is Meerabai. My father name is Nagendra Patil. I have two brothers.
My brothers, my father, mother and myself are staying jointly. I have three bank accounts, among them, I am operating two accounts. I opened account in Canara Bank at Central University Kadaganchi Branch. Witness states the said account has been transferred to PDA college branch, Kalaburagi. Another account is in Canara Bank MRMC branch, Kalaburagi. In Jana Small Finance Bank, Kalaburagi Branch, I have account. I do not have any account in SBI University Branch, Kalaburagi. Qtn : I put it to you, you have account number 62246761497 in SBI University Branch, Kalaburagi ?
Ans : I had this account earlier, now I am not operating this account.
8) I have not closed the said account.
9) I have account in IDBI bank Kalaburagi and account
number is 0876104000040406. I have one more gold loan account number 0876671100044402 in the very same bank.
10) It is true that in Ex.P.3 affidavit/declaration at page no.2 in movable properties column at 1.D) I have given nil details.
11) My wife has an account in Union Bank of India. I do not know whether or not my wife is having account No.1114010000233 in Grameen KGB Iwan-E-Shahi Branch. Maybe my wife had balance of `56,613.87 as on the date of filing of nomination by me. I had balance of `69,613/- in Canara bank account as on the date of filing of nomination.
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12) My father has accounts in Pragati Grameen Bank Balabatti Branch and Pragati Krishna Grameen Bank NV Layout branch. May be or may not be my father having account in SBI Station Bazar branch. My mother has account in Canara Bank Station Bazar and she may be having one account in Pragati Krishna Grameen Bank Balabatti Branch. My mother is having on joint account in HDFC Bank Kalaburagi Branch.
13) It is true that in Ex.P.3 affidavit/declaration at age no.2 in movable properties column at 1.D) I have given nil details with respect to my wife, my father and my mother. I have not furnished all the aforesaid account details and balance amount in my affidavit. Witness states, he did not mention the details due to hurry and typographical mistake. My uncle has filled up the nomination paper and affidavit. Since I had no time, I did not verify the contents of nomination and affidavit, simply I signed on them. It is false to suggest that intentionally and deliberately, I did not furnish correct details in affidavit/declaration."
53. As could be seen from the above, the appellant admitted that he had three bank accounts and was operating two of them. However, while mentioning information relating to his bank accounts in his affidavit, he stated the same as 'nil' for himself, his wife and his parents.
54. An argument was sought to be advanced that the form only required the mentioning of bank deposits and not the bank accounts. As could be seen from the
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NC: 2024:KHC-K:7677 MFA No. 202019 of 2022 C/W MFA No. 202020 of 2022 judgment of the Hon'ble Supreme Court extracted above, the requirement of law was for a candidate to indicate the assets belonging to him, his spouse and his dependents, and the assets were to include immovables, movables, bank balances, etc. Thus, all the assets owned by the candidate and his wife and dependents were to be necessarily indicated in the affidavit and, as a consequence, the bank balances in all his accounts had to be indicated. A deposit in a bank would not necessarily mean a fixed deposit, it would also mean any amount which has been deposited into the bank accounts held by the candidate, his wife and dependents.
55. In the course of his cross-examination in E.P.No.3/2001, he has stated as follows :-
"4) ¢B 21.06.2021 gÀ°è £Á£ÀÄ ªÀÄzÀĪÉAiÀiÁVgÀÄvÉÛãÉ. ªÀĺÁ£ÀUÀgÀ ¥Á°PÉ ZÀÄ£ÁªÀuÉVAvÀ ªÉÆzÀ®Ä ªÀÄzÀÄªÉ DVgÀÄvÀÛzÉ JAzÀgÉ ¸Àj. £À£Àß ºÉAqÀw JAmÉPï N¢gÀÄvÁÛ¼É. UÉÆÃzÀÄvÁ¬Ä PÁ0ÉÃf£À°è Assistant Professor JAzÀÄ PÉ®¸À ªÀiÁqÀÄvÁÛgÉ. ªÀÄzÀÄªÉ DzÀ PÀÆqÀ0Éà MAzÀÄ wAUÀ¼ÀÄ DµÁqÀ ªÀiÁ¸ÀPÉÌ ºÉÆÃVzÀÝgÀÄ. DªÉÄÃ0É CªÀgÀÄ PÉ®¸ÀPÉÌ ºÁdgÁzÁUÀ ¥Àæw wAUÀ¼ÀÄ CAzÁdÄ gÀÆ.25,000/- ¸ÀA§¼À PÉÆqÀÄwÛzÀÝgÀÄ. ªÀÄzÀĪÉ
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NC: 2024:KHC-K:7677 MFA No. 202019 of 2022 C/W MFA No. 202020 of 2022 ¸ÀªÀÄAiÀÄzÀ°è §AUÁgÀ PÉÆnÖgÀĪÀÅ¢®è, ºÀt PÀÆqÀ CªÀgÀ ºÀwÛgÀ EgÀ°®è. £À£Àß DzÁAiÀÄ vÉjUÉ jlgÀ£Àì £À°è DzÁAiÀÄzÀ «ªÀgÀ ¸À°è¹gÀÄvÉÛãÉ. CzÀgÀ°è £À£Àß ºÉ¸Àj£À°èzÀÝ ¥Á°¹UÀ¼À «ªÀgÀ PÁt¹gÀÄvÉÛãÉ. ¸ÁQëAiÀÄÄ »A¢£À ªÀµÀðPÉÌ ¸ÀA§A¢¹zÀÄÝ CAvÁ ºÉüÀÄvÁÛgÉ. FUÀ ¤¦-27 gÉÆA¢VgÀĪÀ DzÁAiÀÄ vÉjUÉ ¸ÉÖÃlªÉÄAmï £ÉÆÃqÀÄwÛzÀÄÝ CzÀgÀ°è LIC ¦æëÄAiÀÄA gÀÆ.1,34,000/- PÁt¹gÀÄvÉÛÃ£É JAzÀgÉ ¸Àj. ªÀÄÄAzÀĪÀgÉzÀÄ, DgÉÆÃUÀå «ªÉÄ ªÉZÀÑ gÀÆ.69,660/- PÁt¹gÀÄvÉÛãÉ. ¤¦-5 gÀ ªÀÄÆgÀ£Éà ¥ÀÄl PÁ®A 'F' zÀ°è EvÀgÉ DyðPÀ ¸ÁzÀ£ÉUÀ¼ÀÄ _____ J0ïL¹ ¥Á°¹UÀ¼ÀÄ EgÀÄvÀÛªÉ JAzÀÄ PÉýzÀÄÝ E0Áè JAzÀÄ PÁt¹gÀÄvÉÛÃ£É JAzÀgÉ ¸Àj. ¸ÁQëAiÀÄÄ 1 ªÀµÀðzÀ lªÀÄð ¥Á°¹ EgÀÄvÀÛzÉ JAzÀÄ ºÉüÀÄvÁÛgÉ. £À£ÀUÉ w½zÀAvÉ £Á«Ä£ÉñÀ£À ¥sÁªÀÄð vÀÄA§ÄªÁUÀ D jÃw AiÀiÁªÀÅzÉà ¥Á°¹UÀ¼ÀÄ EgÀ°®è.
5) ¤¦-5 gÀ ¥ÀæªÀiÁt ¥ÀvÀæzÀ°è £À£Àß vÀAzÉ, vÁ¬Ä ªÀÄvÀÄÛ ºÉAqÀw ºÉ¸Àj£À°è AiÀiÁªÀÅzÉà ¨É0É ¨Á¼ÀĪÀ ªÀ¸ÀÄÛUÀ¼ÀÄ E0Áè JAzÀÄ PÁt¹gÀÄvÉÛÃ£É JAzÀgÉ ¸Àj. £À£Àß vÀAzÉ vÁ¬Ä ªÀÄvÀÄÛ ºÉAqÀw ºÉ¸Àj£À°è JµÀÄÖ ¹ÜgÁ¹ÛUÀ¼ÀÄ EgÀÄvÀÛªÉ JAzÀÄ PÁt¹gÀÄvÉÛãÉ. £À£Àß ºÉAqÀw ºÉ¸Àj£À°è Union Bank of India, Kalaburagi Vidya Nagar ±ÁSÉAiÀÄ°è £À£Àß ºÉAqÀwAiÀÄ ºÉ¸Àj£À°è MAzÀÄ SÁvÉ EgÀÄvÀÛzÉ. CzÀÄ ¸Áå®j CPËAl EzÀÄÝ DªÉÄÃ0É UÉÆvÁÛVgÀÄvÀÛzÉ CAvÁ ºÉüÀÄvÁÛgÉ. ¢B 01.08.2020 gÀAzÀÄ gÀÆ.50,000/- PÉÆlÄÖ §AUÁgÀ Rjâ ªÀiÁrzÀ §UÉÎ ¤¦-60 gÀ°è £ÀªÀÄÆzÀÄ EzÉ JAzÀgÉ £À£ÀUÉ UÉÆwÛ®è. ¢B 26.11.2021 gÀAzÀÄ £À£Àß ºÉAqÀwAiÀÄ SÁvÉAiÀÄ°è gÀÆ.74,295/- ºÀt EzÀÝ §UÉÎ PÁt¸À0ÁVzÉ JAzÀ §UÉÎ EgÀ§ºÀÄzÀÄ. £Á£ÀÄ ¢B 23.08.2021 gÀAzÀÄ £Á«Ä£ÉñÀ£À vÀÄA©gÀÄvÉÛÃ£É JAzÀgÉ ¸Àj. ¸ÀzÀj £Á«Ä£ÉñÀ£À vÀÄA§ÄªÀgÀUÉ £À£Àß ºÉAqÀwAiÀÄ SÁvÉAiÀÄ°è ºÀt EvÀÄÛ CAzÀgÉ E¢ÝgÀ§ºÀÄzÀÄ DzÀgÉ £À£ÀUÉ UÉÆwÛ®è."
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56. As could be seen from the above, the appellant had also admitted that he had paid an LIC premium of Rs.1,34,000/- and a medical insurance of Rs.69,660/-, but in the affidavit, he had indicated as 'nil' with regard to these policies. He also admitted that he had a one year term policy.
57. It is also noticed that even in the course of his cross- examination, he admitted that his wife had a bank account in Union Bank of India, which was her salary account, and he has also stated that his wife did have a bank balance of Rs.74,295/-.
58. He has also gone on to state as follows :-
"12) £À£Àß ºÉ¸Àj£À°è MlÄÖ 6 ¨ÁåAPï SÁvÉUÀ½zÀÄÝ CªÀÅUÀ¼À ¥ÉÊQ 4 Dormant SÁvÉUÀ½zÀݪÀÅ. £À£Àß ºÉAqÀw ºÉ¸Àj£À°è MAzÀÄ ªÉÃvÀ£À SÁvÉ EgÀ§ºÀÄzÀÄ. £À£Àß ºÉAqÀw ºÉ¸ÀgÀÄ ZÉÃvÀ£Á JAzÀgÉ ¸Àj. ¤¦-61 gÀAvÉ CªÀgÀ ºÉ¸Àj£À°è 2 SÁvÉUÀ½gÀÄvÀÛªÉ JAzÀgÉ ¸Àj. £À£Àß vÀAzÉ ºÉ¸ÀgÀÄ £ÁUÉÃAzÀæ¥Àà ¥Ánî JAzÀgÉ ¸Àj. £À£Àß vÀAzÉAiÀÄ ºÉ¸Àj£À°è 2 SÁvÉUÀ½gÀ§ºÀÄzÀÄ. ¤¦-52 jAzÀ 54 ¥ÀæPÁgÀ CªÀgÀ ºÉ¸Àj£À°è 3 SÁvÉUÀ½gÀÄvÀÛªÉ JAzÀgÉ E¢ÝgÀ§ºÀÄzÀÄ. £À£Àß vÁ¬Ä «ÄÃgÁ ¥Ánî CªÀgÀ ºÉ¸Àj£À°è MAzÀÄ SÁvÉ EgÀÄvÀÛzÉ CAzÀgÉ E¢ÝgÀ§ºÀÄzÀÄ."
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59. As could be seen from the above, the appellant admitted that he had, in all, six bank accounts out of which four were dormant accounts. He also reaffirmed the fact that his wife did have a salary account and as per Ex.P.61, he admitted that she had two accounts. He also admitted that his mother and father also possessed two and three bank accounts, respectively. He further admitted that he had not mentioned the details of the properties owned by his father in the nomination and he went on to narrate the details of the properties owned by his father.
60. In light of the above admissions given by the appellant during the course of his cross examination, it is abundantly clear that the appellant was guilty of furnishing false information regarding the bank balances that he, his wife and his parents had in their bank accounts.
61. The decision of the three Judge Bench of the Hon'ble Supreme Court in S. Rukmini Madegowda's case (supra) in paragraph 38 has held as follows :-
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NC: 2024:KHC-K:7677 MFA No. 202019 of 2022 C/W MFA No. 202020 of 2022 "38. In our considered view, a false declaration with regard to the assets of a candidate, his/her spouse or dependents, constitutes corrupt practice irrespective of the impact of such a false declaration on the election of the candidate. It may be presumed that a false declaration impacts the election."
62. Thus, a three Judge Bench of the Hon'ble Supreme Court has declared that a false declaration with regard to the assets of the candidate, his/her spouse or dependents constitutes 'corrupt practice' irrespective of the impact of such a false declaration. The Hon'ble Supreme Court has held that it would have to be presumed that a false declaration impacts the election.
63. As already noticed above, it is the admitted case of the appellant himself that an affidavit and a declaration had been given by him in which the bank balances of his spouse, his parents and himself as well as the immovable properties owned by his parents had not been stated. This admission clearly establishes that he had furnished false information in his affidavit and declaration, and it
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NC: 2024:KHC-K:7677 MFA No. 202019 of 2022 C/W MFA No. 202020 of 2022 therefore necessary follows that the appellant was indeed guilty of indulging in 'corrupt practice'.
64. If the appellant was guilty of 'corrupt practice', the Trial Court was justified in declaring his election to be void since Section 35(1)(b) of the KMC Act states that a 'corrupt practice' committed by a returned candidate would be a ground for declaring the election to be void.
65. The three-judge Bench of the Hon'ble Supreme Court in the above-mentioned case has also gone on to state that non-disclosure of fact would amount to an undue influence which would, in turn, amount to 'corrupt practice'. The Hon'ble Supreme Court, while interpreting Section 35 of the KMC Act and Section 39(2) of the KMC Act has categorically declared that a non-disclosure of a fact would amount to an 'undue influence' which would in turn constitute a corrupt practice. Thus, once it is found that a returned candidate was guilty of a 'corrupt practice', there is no discretion vested in Election Tribunal and it is obliged to set aside the election of the returned candidate.
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66. The learned senior counsel for the appellant, however, sought to argue that the non-disclosure of facts were not substantive in nature and were only trivial information which would never constitute corrupt practice and relied upon the judgment of the Hon'ble Supreme Court rendered in the case of Karikho Kri v. Nuney Tayang & Anr.3 In my view, this judgment would not benefit the appellant as the Hon'ble Supreme Court was considering a case in which the candidate had sold his motor vehicles, but had not gotten the registration certificates transferred and, therefore, he could not be held guilty of failure to disclose the ownership of his three vehicles.
67. It may also be pertinent to state here that the Hon'ble Apex Court in that case was considering whether there was an improper acceptance of the election petition under Sections 100(1)(d)(i) Representation of the People Act, 1951 since the High Court had held in that case that 3 Civil Appeal No.4615/2023 DD- 09.04.2024
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NC: 2024:KHC-K:7677 MFA No. 202019 of 2022 C/W MFA No. 202020 of 2022 the failure to disclose the ownership of the three vehicles amounted to a 'corrupt practice' under Section 100(1)(d)(i) of the Representation of the People Act, 1951.
68. However, in this case, the Trial Court has rightly found that the appellant has been guilty of corrupt practice and on a re-assessment of the evidence, this Court has also come to the conclusion that the appellant had indulged in 'corrupt practice' by furnishing false information regarding the bank accounts held by his wife, the properties owned by his parents (who were stated to be the dependents by the appellant), and himself in his affidavit and declaration.
69. In view of the above, I find no reason to entertain the appeals, and the same are thus dismissed.
Sd/-
(N.S.SANJAY GOWDA) JUDGE SN, List No.: 19 Sl No.: 2