Karnataka High Court
Smt. Kasturi @ Kasturbaa vs Smt. Sonabayi on 6 February, 2018
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 06 T H DAY OF FEBRUARY 2018
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
M.F.A.NO.9801/2017 (MPA)
BETWEEN :
SMT.KASTURI @ KASTURBAA,
W/O MALLESHAPPA @ MALLESH
BANDIWADDDAR,
AGED ABOUT 36 YEARS,
OCC: HOUSEHOLD WORK,
R/O WADDAR SEVA SANGHA,
VIKAS NAGAR, S.V.ROAD,
PASCHIMA JOGESHWARI,
MUMBAI-400 102.
NOW RESIDING AT : WARD NO.12,
AMINGAD, TALUK HUNGUND,
DIST: BAGALKOT-587112.
... APPELLANT
(BY SRI S.B.HEBBALLI, ADVOCATE.)
AND:
1. SMT.SONABAYI
W/O LALAPPA LAMANI,
AGED ABOUT 43 YEARS,
OCC: HOUSEHOLD WORK,
R/O WARD NO.5, AMINGAD,
TALUK HUNGUND,
DIST.BAGALKOT-587112.
2
M.F.A.No.9801/2017
2. SMT.RENUKA
W/O PANDURANGA RATHOD,
AGED ABOUT 42 YEARS,
OCC: HOUSEHOLD WORK,
R/O WARD NO.12, AMINGAD,
TALUK HUNGUND,
DIST. BAGALKOT-587112.
3. SMT.GANGAVVA,
W/O NEMAPPA LAMANI,
AGED ABOUT 62 YEARS,
OCC: HOUSEHOLD WORK,
R/O WARD NO.12, AMINGAD,
TALUK HUNGUND,
DISTRICT. BAGALKOT-587112.
4. THE ELECTION OFFICER,
TAHASILDAR OF HUNGUND TALUK,
TALUKL HUNGUND,
DIST: BAGALKOT.
... RESPONDENTS
(BY SRI K.L.PATIL, ADVOCATE FOR R.1)
(RESPONDENT NO.2 & 3 : SERVED)
(BY SMT.AMARAVATHI H.R., HCGP FOR R.4)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 27 OF THE KARNATAKA
MUNICIPALITIES ACT, 1964 PRAYING TO SET ASIDE
THE IMPUGNED JUDGMENT AND DECREE DATED
04.12.2017, PASSED IN ELE.P.NO.02/2016 ON THE
FILE OF THE SENIOR CIVIL JUDGE, HUNGUND, AND
DISMISS THE PETITION AS DEVOID OF MERITS AND
ETC.
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M.F.A.No.9801/2017
THIS APPEAL COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:
JUDGMENT
Heard.
2. The appellant and respondents No.1 to 3 contested the election to the post of the Councilor of Ward No.12 of Amingad Town Panchayath held on 10.07.2016. On 13.07.2016, the appellant was declared as the returned candidate.
3. The 1st respondent challenged the election of the appellant, before the Senior Civil Judge and Election Tribunal, Hungund in Election Petition No.2/2016 under Section 21 of the Karnataka Municipalities Act. In the said petition, she sought to set aside the election of the appellant and for declaration that she is the returned candidate.
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4. Present respondents No.2 to 4 are respondents No.2 to 4 before the trial court and the appellant is the 1st respondent. For the purpose of convenience, parties will be referred to with their ranks before the Tribunal.
5. The petitioner sought annulling of election of the 1 s t respondent on several grounds. For the purpose of this appeal, the material ground is that, reception of the nomination of the 1 s t respondent by the 4 t h respondent was illegal/ improper. The petitioner contended that while submitting the nomination, in her declaration the 1 s t respondent suppressed the pendency of the criminal case which she was required to disclose. She contended that while filing the nomination/declaration the criminal case in Crime No.84/2012 was registered against the 1st respondent in Amingad Police Station for the offences punishable under Section 323, 324 and 5 M.F.A.No.9801/2017 504 of IPC, the cognizance was taken and charges were framed and matter was pending in C.C.No.879/2012.
6. The 1 s t respondent in paragraph 5B of her statement of objections contended that the said criminal case was between the family members and was not an offence against the society or heinous offence. She further contended that the case was about to be compromised, therefore she did not declare the same in her declaration.
7. The parties adduced evidence before the Tribunal. On behalf of the petitioner, PW.1 is examined and Exs.P.1 to P.26 are marked. On behalf of the respondents RWs.1 and 2 are examined and Exs.R.1 to R.5 are marked.
8. The Tribunal after hearing the parties held that the non-disclosure of the pendency of CC.No.879/2012 amounts to suppression of 6 M.F.A.No.9801/2017 material facts and thereby the reception of the nomination is illegal/improper. The Tribunal relying on the judgment of the Supreme Court in Krishnamoorthy Vs. Shivakumar and others [(2015) 3 SCC 467] held that such non- disclosure of the criminal antecedents of the returned candidate amounts to undue influence and corrupt practice. Thus, by the impugned order dated 04.12.2017 annulled the election of the 1 s t respondent and declared the petitioner as the returned candidate with effect from 13.07.2016.
9. Sri S.B.Hebballi, the learned counsel for the petitioner seeks to assail the order on the following grounds.
a) The prescribed form of declaration Ex.P.8 required the petitioner to declare the criminal case registered within preceeding six months before the date of filing of the nomination and 7 M.F.A.No.9801/2017 therefore non disclosure of pendency of CC.No.879/2012 does not amount violation of the notification or the nomination paper.
b) The judgment in Krishnamoorthy's case is not applicable as the discussion made therein and the conclusion drawn therein are under the Representation of the People Act.
c) Even on annulling the election of the 1 s t respondent the Tribunal should not have declared the petitioner as returned candidate.
In support of his contention he relies on the judgment of this court in Bazil D'Souza and Another Vs. Anil Kumar & Others [2015 0 Supreme (Kar) 418].
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10. As against that, Sri K.L.Patil, learned counsel for the petitioner (1 s t respondent) seeks to justify the order on the following grounds.
a) Admittedly as on the date of the filing of the nomination/declaration, C.C.No.879/ 2012 was pending against the 1st respondent before the Additional Civil Judge & JMFC, Hungund.
b) The interpretation that the cases registered within six months immediately preceeding the date of the declaration alone are to be disclosed is incorrect.
c) Such suppression of the material fact influences the voters and that amounts corrupt practices and wielding undue influence as held by Krishnamoorthy's case.9
M.F.A.No.9801/2017
d) When the election is set aside on the ground of illegal/improper reception of the nomination due to suppression of the pendency of the criminal case, that amounts to corrupt practice. Therefore, the judgment in Bazil D'Souza's case is not application.
11. Having regard to the rival contentions of the parties the point that arises for consideration is:
"Whether the impugned judgment of the election tribunal in annulling the election of the 1st respondent and declaring the petitioner as returned candidate is sustainable under law?"
12. Some undisputed facts of the case are as follows;
a) That the petitioner and respondent No.1 to 3
submitted their nomination for election to the post of councilor of Ward No.12 of Amingad. A 10 M.F.A.No.9801/2017 notification was issued for such election based on the orders of the State Election Commission dated 14.07.2003 bearing No.SEC /11/EUB/ 2002. The notification required the candidates to furnish affidavit or declaration with regard to the following aspects.
1) "Whether the candidate is convicted/ acquitted/discharged of any criminal offence in the past; if any, whether he is punished with imprisonment or fine?
2) Prior to six months of filing of nomination, whether the candidate is accused in any pending case of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the court of law, if so, the details thereof. 11 M.F.A.No.9801/2017
3) The assets (immovable, movable, bank balances etc) of a candidate and of his/her spouse and that of dependants.
4) Liabilities, if any, particularly whether there are any over dues of any public financial institution or government dues.
5) The educational qualifications of the candidate."
b) The said notification was issued pursuant to the judgment of the Supreme Court in Union of India Vs. Association for Democratic Reforms and Another. In pursuance of the said notification, the 1 s t respondent submitted her declaration Ex.P.8. The caption of Sl.No.3 of Ex.P.8 is as follows;
"Prior to six months of filing of nomination, whether the candidate is 12 M.F.A.No.9801/2017 accused in any pending case of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the court of law, if so, the details thereof."
In that column the 1 s t respondent did not mention anything and she just put a dash mark against each item.
c) By that time on the complaint of one Giriyavva Bandiwaddar, Crime No.84/2012 was registered against the petitioner for the offences punishable under Sections 504, 323 and 324 of IPC as per Ex.P.16-FIR. The charge sheet was also filed. Ex.P.15 copy of the order sheet. In that case the Magistrate took cognizance of the matter and registered the case in C.C.No.879/2012. The charges were framed on 06.03.2013.
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d) Out of the offences for which the charges are framed against the first respondent, the punishment prescribed for offence punishable under Section 324 of IPC is imprisonment for three years and Section 504 of IPC is imprisonment for two years.
13. In the light of the above admitted facts, the question arises whether there is violation of the prescription in declaring the pending cases as stipulated at Sl.No.3 of Ex.P.8.
14. The learned counsel for the 1st respondent seeks interpret clause (3), as if the 1 s t respondent required to furnish the information only, if the case is registered within six months preceeding the date of filing of the nomination and not otherwise. But the reading of caption of Sl.No.3 makes it very clear that the candidate was required to declare the information of pending criminal case prior to six months of filing of 14 M.F.A.No.9801/2017 nomination where the charge is framed or cognizance is taken. That clause exempts only declaration of the criminal cases in which the cognizance is not taken or charges are not framed. The Interpretation sought to be made by petitioner's counsel is in the reverse order.
15. In the similar circumstance the Hon'ble Supreme Court in Krishnamoorthy's case referred to supra has held that the non disclosure of the pending case amounts to suppression of the material facts and violation of the prescription of filing of the nomination. The Hon'ble Supreme Court further held that such suppression amounts to wielding undue influence on the voters and that amounts to the corrupt practice.
16. The Election itself was declared based on the order of State election Commission dated 14.07.2003. Taking advantage of the same notification and accepting the forms of nomination 15 M.F.A.No.9801/2017 and declaration, the 1 s t respondent submitted her nomination and declaration. Therefore, now it is not open to the 1 s t respondent to contend that the said forms are notification are derived from the Representation of the Peoples Act and that cannot be made applicable to the election of the Town Panchayath after participating in the said election process. The matter on hand is squarely covered by Krishnamoorthy's case referred to supra.
17. Then the question is whether the Tribunal was justified in declaring the petitioner as the returned candidate. Admittedly, in the election the score of the parties are as follows;
a) Petitioner-180,
b) 1 s t respondent-181,
c) 2 n d respondent-156 and
d) 3 r d respondent-9.
16M.F.A.No.9801/2017 Therefore, the difference between the petitioner and the 1 s t respondent was only one vote.
18. In Bazil D'Souza's case it was held that there was no allegations of corrupt practice and only where election is set aside on allegation of corrupt practice, the votes secured by such candidates are to be treated as invalid. It was further held that in such situation the next candidate securing the highest votes has to be declared as returned candidate, otherwise fresh election has to be conducted.
19. Whereas in Krishnamoorthy's case referred to supra the Hon'ble Supreme Court has held that even suppression of criminal antecedents of the candidates amount to undue influence as fallout of corrupt practice. Paragraph No.86 of the said judgment reads as follows;
17M.F.A.No.9801/2017
"86. In view of the above, we would like to sum up our conclusions:
(a) Disclosure of criminal antecedents of a candidate, especially, pertaining to heinous or serious offence or offences relating to corruption of moral turpitude at time of filing of nomination paper as mandated by law is a categorical imperative.
(b) When there is non-disclosure of the offences pertaining to the areas mentioned in the preceeding clause, it creates an impediment in the free exercise of electoral right.
(c) Concealment or suppression of this nature deprives the voters to make an informed and advised choice as a consequence of which it would come within the compartment of direct or indirect interference or attempt to interfere with the free exercise of the right to vote by the electorate, on the part of the candidate.
18 M.F.A.No.9801/2017 (d) As the candidate has the special knowledge of the pending cases
where cognizance has been taken or charges have been framed and there is a non-disclosure on his part, it would amount to undue influence and, therefore, the election is to be declared null and void by the Election Tribunal under Section 100(1)(b) of the 1951 Act.
(e) The question whether it materially affects the election or not will not arise in a case of this nature.
Therefore, it is clear that the act of the 1 s t respondent suppressing the criminal antecedents amounts to corrupt practice.
20. In Bazil D'Souza's case, the judgment of the Hon'ble Supreme Court in Krishnamoorthy's case is not referred to. Having regard to judgment in Krishnamoorthy's case votes secured by respondent No.1 have to be treated as invalid votes. In such event the 19 M.F.A.No.9801/2017 judgment in Bazil D'Souza's case is not helpful to the 1st respondent in contending that the declaration of the petitioner as returned candidate is unlawful. There is no merit in the appeal. Therefore dismissed with costs.
Sd/-
JUDGE E M/ -