Karnataka High Court
Samiulla vs Ansar Pasha on 30 August, 2024
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NC: 2024:KHC:35082
MFA No. 2937 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
MISCELLANEOUS FIRST APPEAL NO. 2937 OF 2024 (MPA)
BETWEEN:
SAMIULLA
S/O LATE ABDUL KAREEM SAB
AGED ABOUT 53 YEARS,
R/AT WARD NO.7,
SHARIFF MOHALL,
KUNIGAL TOWN
TUMAKURU DISTRICT
...APPELLANT
(BY SRI. SHIVCHARAN R., ADVOCATE)
AND:
1. ANSAR PASHA
S/O LATE SYED RAHIM
AGED ABOUT 53 YEARS,
R/AT TANJAVOOR MOHALLA,
Digitally MADDUR ROAD, KUNIGAL TOWN
signed by TUMAKURU DISTRICT
SUVARNA T
2. THE RETURNING OFFICER / TAHSILDAR
Location: WARD NO.1-8, KUNIGAL MUNICIPALITY
HIGH ELECTION OFFICERS OFFICE
COURT OF
KUNIGAL TALUK
KARNATAKA
TUMAKURU DISTRICT
...RESPONDENTS
(BY SRI. SHAHBAAZ HUSAIN, ADVOCATE
MS.RASHI SINGH, ADVOCATE FOR R1
SRI.R.A.MACHAKANUR, AGA FOR R2)
THIS MFA FILED U/S.27 OF THE KARNATAKA MUNICIPALITIES
ACT, 1964, AGAINST THE JUDGMENT DATED: 27.04.2024 PASSED IN
E.P.NO.02/2019 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
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NC: 2024:KHC:35082
MFA No. 2937 of 2024
JUDGE AND JMFC, KUNIGAL, ALLOWING THE PETITION FILED U/S.21
OF KARNATAKA MUNICIPALITIES ACT, 1964.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
ORAL JUDGMENT
Aggrieved by the order passed in EP.No.02/2019 dated 27.04.2024 by the Additional Senior Civil Judge and JMFC, Kunigal, the appellant is before this Court.
2. The respondent No.1 herein had filed a petition under Section 21 of the Karnataka Municipalities Act, 1964 with a prayer to set aside Election of the appellant herein elected from ward No.7, Shariff Mohalla, Kunigal Town, Tumkuru by holding the Election as void and to declare that the respondent No.1 herein has been duly elected councilor from ward No.7, Shariff Mohalla, Kunigal Town, Tumkuru District.
3. It is the case of the respondent No.1 herein that the Government of Karnataka vide Government order dated 02.05.2019 directed elections to be held to various municipalities in the state of Karnataka. A notification was -3- NC: 2024:KHC:35082 MFA No. 2937 of 2024 given for conducting the election of councillors to the municipal councils of Tumkuru District on 09.05.2019. Subsequent to the said notification, respondent No.1 and the appellant have filed their nominations in the prescribed forms along with the affidavit with State Election Commission as candidates for ward No.7, Shariff Mohalla of Kunigal Municipality. On the date of scrutiny, the nomination form of the appellant was published on the notice board of State Election Office in Kunigal Town and upon perusing the nomination form, respondent No.1 noticed the suppression of material facts and misrepresentation of the facts by the appellant herein and the appellant has not disclosed fact of pending criminal case against him. Immediately, the respondent No.1 informed the returning officer, who is respondent No.2 herein about the falsity of information submitted by the appellant in his affidavit and appraised him of criminal case filed against him in CC.No.1313/2018 pending on the file of Principal Civil Judge and JMFC, Kunigal which came to be filed on 11.12.2018.
4. It is his case that Respondent No.2 refused to take action against the appellant stating that he had already concluded the scrutiny of nomination between 11:37 am to -4- NC: 2024:KHC:35082 MFA No. 2937 of 2024 11:46 am and he cannot revisit the same and he directed respondent No.1 to file complaint before the competent forum in accordance with law. The Election of Municipal Council in the state of Karnataka was held on 29.05.2019 and the results were declared on 31.05.2019 and the appellant was declared as elected candidate. Thereafter, the present election petition was filed.
5. The contention of the appellant herein before the trial Court was that the petition under Section 21 of the Karnataka Municipalities Act, 1964 contemplates only the candidates to be arrayed as parties and the petition is liable to be dismissed for arraying respondent No.2, who is the returning officer as party. The petition is bad for mis-joinder of unnecessary parties which is outside the jurisdiction of Section 21 of the Karnataka Municipalities Act, 1964. The appellant has furnished correct information in the nomination paper and has given proper declaration in affidavits as required under law. According to the appellant respondent No.1, has not mentioned the criminal cases registered against him and he had suppressed them. The person who comes before the Court shall come with clean hands and the respondent No.1 has not disclosed all the -5- NC: 2024:KHC:35082 MFA No. 2937 of 2024 relevant facts. Basing on the pleadings of the parties, the trial Court had framed the following issues:
"ISSUES
1. Whether the petitioner proves that, the respondent No.1 has played fraud on the electorate and caused undue influence on the voters to cast their votes by indulging in corrupt practice of falsifying the information on pending criminal case against the respondent No.1 ?
2. Whether the petitioner further proves that, the respondent No.2 has refused to take action in furtherance of complaint of the petitioner?
3. Whether the petitioner is entitle for the reliefs as sought for?
4. What order?"
6. In order to prove his case, respondent No.1 examined himself as PW.1 and got marked Exs.P-1 to 14. Ex.P-10 is the certified copy of charge filed against the appellant under Sections 143, 144, 148, 323, 506, 149 of IPC and the maximum punishment for the offences alleged against the appellant is 7 years.
7. The trial Court had allowed the Election Petition filed by the respondent No.1 under Section 21 of Karnataka Municipalities Act, 1964 and declared the election of appellant -6- NC: 2024:KHC:35082 MFA No. 2937 of 2024 herein which was held on 29.05.2019 to ward No.7 of Shariff Mohalla, Kunigal Town, Tumkur as void and the same was set aside. Consequently, respondent No.1 was declared as duly elected candidate for ward No.7 of Kunigal Town Corporation. While passing such an order, the trial Court had observed that during the course of cross examination of RW-1, it was elicited that CC.No.1313/2018 is pending on the file of the Principal Civil Judge Court which supports the case of respondent No.1 as to non-disclosure of the said case in the nomination. It was argued by the appellant herein that the said case being registered on the basis of a private complaint, he had no knowledge of the pendency of the case. But during the course of arguments, a memo was filed with order sheet of the said case issued by the concerned court and the trial Court observed that the court can take judicial notice of the same since the document is a public document. According to the said order sheet, the appellant herein on 25.04.2019 even before filing of the nomination by appearing before the court has obtained bail and the said fact is not disclosed in the nomination which goes to show that the appellant intentionally had not disclosed the said fact. Even during the course of cross examination, the said -7- NC: 2024:KHC:35082 MFA No. 2937 of 2024 aspect was put into the witness stating that column No.7 of page No.3 of Ex.P-4, he has not disclosed correct information for which it is deposed that he did not have the knowledge of pendency of the said case. Once the bail is obtained, the question of appellant having no knowledge of the said case does not arise and it appears that only to escape from the clutches of law he is deposing falsely. Further, in the cross examination, he admitted that on 13.05.2019, he filed the nomination and he has obtained the bail on 25.04.2019. Considering the facts and the submissions of the respondent No.1 that there are criminal cases pending against the appellant and he did not furnish correct information with regard to his avocation, family details and property details and respondent No.1 had produced documents Exs.P-4, 8 and 14 to show that the appellant had not disclosed correct information with regard to pendency of the case, as such, his selection as a councillor was declared as void. The respondent No.2 based on the complaint lodged by the respondent No.1 as per Ex.P-1 has not taken any action in furtherance of the complaint and issued endorsement as per Ex.P-3 as such on this count also the election of the appellant herein is liable to be set aside. The -8- NC: 2024:KHC:35082 MFA No. 2937 of 2024 trial Court held that as there is suppression of the fact that there is a criminal case registered against the appellant and charge sheet is filed against him, the election of the appellant was declared as void.
8. The trial Court has also discussed about the aspect of limitation and on that issue, it is observed that the election of the councillors came to be notified by the Government on 09.05.2019. The election petition was being presented for adjudication to the Court within 30 days from the date of publication of result as required under the Act. So on perusal of the material on record, there is an improper acceptance of nomination and non-compliance of the provisions of the KMC Act and Rules as well as orders made by the Karnataka State Election Commission. The trial Court observed that to bring transparency in the process of election, each candidate has to furnish their past history, family backgrounds, education, age, marital status, assess and liabilities, movable and immovable properties held by the candidate and their family members at the time of filing nomination papers for any election with full and complete information. Accordingly, the trial Court had -9- NC: 2024:KHC:35082 MFA No. 2937 of 2024 allowed the petition filed by respondent No.1 herein. Aggrieved thereby, the appellant is before this Court.
9. Learned counsel appearing for the appellant submits that respondent No.1 herein has not disclosed all the relevant factors and also about the criminal cases that are pending against him and with regard to the details of the family members and all the relevant details was not furnished by him. In that case, he is not entitled to be declared as an elected candidate. It is submitted that the plea of the appellant that he was not aware of the pending criminal case was not considered by the trial Court. Learned counsel submits that the trial Court ought not to have declared the election of the appellant as void and without considering his plea, and the allegations on respondent No.1 has declared respondent no.1 as duly elected candidate for ward No.7, which is not correct and contrary to law.
10. Learned counsel appearing for respondent No.1 submits that he has not suppressed any of the material facts and he is the one who has questioned the election of the appellant herein and considering Ex.P-10, the trial Court had
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NC: 2024:KHC:35082 MFA No. 2937 of 2024 rightly come to the conclusion that there is suppression and misrepresentation of facts and rightly allowed the petition filed under Section 21 of the Karnataka Municipalities Act, 1964. It is submitted that if it is the case of the appellant that respondent No.1 has suppressed any material fact that the criminal cases are pending against him, he should have brought all those things on record. Learned counsel submits that these contentions are raised before this Court and in that regard no issue is framed by the trial Court and the appellant herein has never insisted upon the trial Court to frame such an issue. Now, he cannot raise such an issue before this Court. He submits that the trial Court had rightly considered all the issues and no grounds are made out seeking interference with the well considered order passed by the trial Court.
11. Having heard the learned counsels on either side, perused the entire material on record. The whole dispute about the fact that whether there is suppression or misrepresentation of facts and whether the appellant had disclosed the relevant details as required in the nomination form, it is undisputed fact that the candidates have to disclose the pending cases against them and also the cases where the charge sheet is filed and the
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NC: 2024:KHC:35082 MFA No. 2937 of 2024 sentence for the offences is above 2 years. A charge sheet is filed against the appellant in CC.No.1313/2018 on the Principal Civil Judge, under Sections 143, 144, 148, 323, 506, 149 of IPC and the maximum punishment is about 7 years. In that case, it is incumbent upon the appellant to disclose all the details which he failed to do and the trial Court had rightly held that Section 21 of the Karnataka Municipalities Act, 1964 is attracted and declared the election of the appellant as void and the same was set aside.
12. Coming to the contention that respondent No.1 had not disclosed certain details and certain complaints are pending against him, for that evidence is required and no such evidence is adduced before the trial Court and no issue is framed by the court. In such case, it is not open for the appellant to raise all those issues before this Court.
13. In the concerned opinion of this Court, the trial Court had rightly dealt with the issue and set aside the election of the appellant and this Court finds no reasons to interfere with the order passed by the trial Court. Hence, this Court is passing the following:
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NC: 2024:KHC:35082
MFA No. 2937 of 2024
ORDER
i. Accordingly, the appeal is dismissed.
ii. All I.As. in the appeal shall stand closed.
SD/-
(LALITHA KANNEGANTI) JUDGE MEG List No.: 1 Sl No.: 16