Telangana High Court
Ajmera Shyam vs Smt.Kova Laxmi on 25 October, 2024
Author: K. Lakshman
Bench: K. Lakshman
IN THE HIGH COURT FOR THE STATE OF TELANGANA
AT: HYDERABAD
CORAM:
* HON'BLE SRI JUSTICE K. LAKSHMAN
+ ELECTION PETITION No.10 OF 2024
% Delivered on: 25-10-2024
Between:
# Mr. Ajmera Shyam S/o Bheelya Naik .. Election Petitioner
Vs.
$ Mrs. Kova Laxmi W/o Kova Sone Rao & others .. Respondents
! For Election Petitioner : Mr. C. Raghu, Ld. Sr. Counsel
rep. Mr. R. Giri Kumar,
^ For Respondent No.1 : Mr. J. Ramachandra Rao, Ld.
Sr. Counsel representing Mr.
S. Santosh Kumar.
^ For Respondent Nos.2 to 16 & 19 : ---
< Gist :
> Head Note :
? Cases Referred :
1. (2002) 5 SCC 294 14. (2015) 3 SCC 467
2. (2003) 4 SCC 399 15. (1954) 2 SCC 32
3. 2024 SCC OnLine SC 519 16. (1954) 2 SCC 881
4. (2018) 4 SCC 699 17. (1969) 3 SCC 622
5. (2014) 14 SCC 189 18. (2020) 7 SCC 1
6. (2014) 14 SCC 162 19. (2018) 14 SCC 1
7. 2022 SCC OnLine SC 1218 20. 2023 SCC OnLine SC 573
8. (2017) 2 SCC 487 21. 2024 MPHC-JBP 41862
9. (2012) 11 SCC 390 22. 2024 SCC OnLine Pat. 3134
10. (2012) 3 SCC 314 23. E.P. 4 of 2019, decided on 24.08.2023
11. (2002) 1 SCC 160 24. E.P. 31 of 2019, decided on 25.07.2023
12. (2003) 7 SCC 709 25. 2024 SCC OnLine SC 509
13. (2001) SCC OnLine Cal. 144 (DB) 26. 1986 SCC (Supp.) 315
27. AIR 1954 SC 210
2
KL,J
E.P. No.10 of 2024
HON'BLE SRI JUSTICE K. LAKSHMAN
ELECTION PETITION No.10 OF 2024
ORDER:
Heard Mr. C. Raghu, learned Senior Counsel representing Mr. R. Giri Kumar, learned counsel for Election Petitioner and Mr. J. Ramachandra Rao, learned Senior Counsel representing Mr. S. Santosh Kumar, learned counsel appearing for respondent No.1 - Returned Candidate.
2. This Election Petition is filed by the Election Petitioner under Sections - 11 (a), 33, 33(A), 34, 80, 80A, 81, 83, 84, 100 (1) (a) (b) (d), 101, 123 and 125 (a) of the Representation of the People Act, 1951 (hereinafter referred to as 'Act, 1951'), to set aside the election of respondent No.1 as the Member of Telangana Legislative Assembly from 005-Asifabad Assembly Constituency (ST), Kumurambheem - Asifabad District (which is hereinafter referred to as 'subject constituency') and to declare the election petitioner as duly elected candidate to the subject Constituency.
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KL,J E.P. No.10 of 2024
3. CONTENTIONS OF THE ELECTION PETITIONER:
i. Respondent No.1 failed to comply with the provisions with regard to submission of nomination as prescribed under the Act, 1951, Conduct of Election Rules, 1961 (hereinafter referred to as 'Rules, 1961') and the Orders made thereunder by the Election Commission.
ii. Submission of nomination by respondent No.1 along with Form -
26 was incomplete as she has not submitted five (05) years Income Tax Returns i.e., 2022-23, 2021-22, 2020-21, 2019-20 and 2018-19 and she has submitted only one year Income Tax Returns i.e., 2022-23, and it amounts to suppression of information to the voters of the subject constituency.
iii. Respondent No.1 also contested the General Election, 2018 to the subject constituency wherein she has filed Form - 26 showing her income for the year 2017-18 as Rs.5,40,000/- only. Having shown that much income for the year 2017-18, she deliberately suppressed her income for the years 2022-21, 2021-20, 2020-19 and 2019-18.
4
KL,J E.P. No.10 of 2024 iv. Respondent No.1 also contested to the Zilla Parishad Territorial Constituency (ZPTC), Jainoor, Kumurambheem - Asifabad District in the year 2019 by showing her income as Rs.5,40,000/- for the year 2017-18, and she was elected as ZPTC Member, Jainoor and thereafter as Zilla Parishad Chairman of Kumurambheem - Asifabad District. Vide G.O.Ms.No.53, dated 24.06.2015, honorarium of Chairperson of Zilla Parishad, ZPTC, MPTC and Sarpanches were enhanced. As per the said G.O., respondent No.1 was drawing Rs.1,00,000/- per month which comes to Rs.12,00,000/- per annum. The income as Chairman and pension itself amounts to Rs.15,60,000/-. Despite the same, respondent No.1 showing her income as NIL for the years 2021- 22, 2020-21, 2019-20, 2018-19 and 2017-18 and this amounts to suppressing of information, and thereby she committed a corrupt practice under Section - 123 (2) of the Act, 1951. v. Without considering the said aspects, the Returning Officer accepted the nomination of respondent No.1 improperly. vi. Thus, the result of the election of returned candidate has been materially affected.
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KL,J E.P. No.10 of 2024
4. CONTENTIONS OF RESPONDENT No.1:
i. Election Petition is silent as to how the result was materially affected.
ii. The election petition is not maintainable as per Section - 100 of the Act, 1951.
iii. The election petition was filed without compliance with the requirement in Form 25 as the same shall be accompanied with an affidavit in the prescribed form in support of allegation of corrupt practice.
iv. The election petition has to be dismissed on the grounds of false and frivolous allegations made therein.
v. Respondent No.1 has disclosed her source of income along with PAN No.BMHPK4335E, movable and immovable assets, liabilities and pending Government dues etc. Thus, neither there is suppression of her income, nor misguiding the people/voters of the subject constituency.
vi. The election petitioner did not raise any objection during scrutiny of nominations.6
KL,J E.P. No.10 of 2024 vii. After being elected as Chairman, Zilla Parishad, Kumurambheem
- Asifabad District between 04.07.2019 and 03.12.2023, she has not drawn Ex-Legislator pension.
viii. The averments in the election petition are purely hyper-technical. ix. Section - 36 (4) of the Act, 1951 contemplates that the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. x. There is no cause of action for filing the present election petition.
5. ISSUES:
Basing on the aforesaid pleadings and the draft issues filed by both learned counsel for the election petitioner and learned counsel for respondent No.1, this Court has framed the following fourteen (14) issues on 01.08.2024 and re-settling issue No.(ix) on 07.08.2024 :
i) Whether the affidavit in Form-26 filed under Rule 4A of the Conduct of the Election Rules, 1961 by the 1st respondent is defective for the reason that she has not shown her income for the year 2018-19, 2019-20, 2020-21 & 2021-22 and it constitutes suppression of income as she mentioned 'NIL' for the said years?
ii) Whether mentioning of PAN Number by respondent No.1 would not make necessary for her to disclose her income for the years 7 KL,J E.P. No.10 of 2024 2018-19, 2019-20, 2020-21 & 2021-22 though it is mentioned as 'NIL'?
iii) Whether the receipt of monthly honorarium by respondent No.l as Zilla Parishad Chairperson would not obligate her to disclose the said amount as income by merely disclosing PAN Number and mentioning the income as 'NIL'?
iv) Whether suppression of income for the years 2018-19, 2019-20, 2020- 21 & 2021-22 in Form-26 affidavit attracts disqualification under the provisions of Representation of Peoples Act, 1951?
v) Whether the acts of respondent No.1 in mentioning her income for the years 2018-19, 2019-20, 2020-21 & 2021-22 as 'NIL' in Form-26 affidavit would amount to suppression of her income during the said period?
vi) Whether the election of the 1st respondent for Asifabad Assembly Constituency (005) is to be declared as void for the reason of suppression of income in Form-26 affidavit?
vii) Whether the Election Petitioner has made out any case to maintain the present Election Petition within the grounds enunciated under Section - 100 of the Representation of Peoples Act, 1951?
viii) Whether the Election Petition is maintainable on the ground of corrupt practices under Section - 123 (2) of the Representation of Peoples Act, 1951 without compliance to the mandatory requirement in Form-25 (Rule 94-A of the Conduct of Election 8 KL,J E.P. No.10 of 2024 Rules, 1961) and Section - 83 of the Representation of the Peoples Act, 1951?
ix) Whether the acceptance of nomination of the Election Petitioner is in any way in violation of Section - 36 of the Representation of Peoples Act, 1951?
x) Whether the Election Petitioner is entitled to file the present Election Petition without filing objections during the scrutiny of nominations?
xi) Whether the Election Petitioner is entitled to maintain the Election Petition having committed irregularities in filing his nomination and were there any bona fides on his part to continue the Election Petition?
xii) Whether there is any cause of action for the Election Petitioner to file the present Election Petition?
xiii) Whether the Election Petitioner is entitled to declare him as elected candidate for 005-Asifabad Assembly Constitution (ST), Kumuram Bheem - Asifabad District, Telangana State as he secured next highest votes?
xiv) To What relief?
6. After re-settling issue No.(ix) on 07.08.2024, this Court appointed Mr. Y. Govinda Reddy, Retired District Judge, as Commissioner, to record the evidence of parties. Pursuant to the same, learned Commissioner recorded the evidence of the election petitioner as PW.1 and got exhibited / marked the documents as Exs.A1 to A8 and 9 KL,J E.P. No.10 of 2024 Ex.R1 (Form 26 of the petitioner) was marked during his cross-
examination. He also recorded the evidence of respondent No.1 as RW.1 and got marked Ex.R2 - non-drawl certificate dated 20.06.2024 issued by Legislature (Pensions), Secretariat of Telangana Legislature.
7. ANALYSIS AND FINDINGS ON ISSUE Nos.(i) to (xiii):
Since issue Nos.(i) to (xiii) are interconnected and, therefore, to avoid repetition, the same are being taken up for discussion together:
i). The election petitioner filed the aforesaid election petition, mainly on the ground that respondent No.1 - returned candidate did not mention four (04) years of income tax returns in Ex.A4 - affidavit in Form 26 filed by her.
ii) As per the pleadings, the election petitioner contested as a candidate put up by the Indian National Congress from the subject constituency in the general election held in the month of November, 2023. As per the election schedule, polling was held on 30.11.2023.
Seventeen (17) candidates contested from the subject constituency. Respondent No.1 contested in the said elections on behalf of Bharat Rashtra Samithi (BRS). There is no dispute that the election petitioner and respondent Nos.1 to 16 contested in the subject elections. 10
KL,J E.P. No.10 of 2024 Respondent No.1 got 83,036 votes, whereas the election petitioner got 60,238 votes. Thus, respondent No.1 succeeded with a margin of 22,798 votes.
iii) In the light of the same, it is apt to note that Section - 100 of the Act, 1951 deals with 'grounds for declaring election to be void'. Clause (d) (iv) of the said provision deals with non-compliance with the provisions of the Constitution or of the Act, 1951 or any Rules or Orders made thereunder.
iv) Section - 123 of the Act, 1951 deals with corrupt practices, and Section 123 (2) reads "undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right. Thus, Section - 100 of the Act, 1951 deals with 'grounds for declaring election to be void and it includes corrupt practices.
v) In the present case, it is the specific contention of the election petitioner that respondent No.1 - returned candidate did not mention four (04) years of income tax returns in Ex.A4 - affidavit in Form 26 and, therefore, respondent No.1's election is liable to be set aside. As 11 KL,J E.P. No.10 of 2024 discussed above, non-disclosure of income tax returns in the affidavit filed in Form 26 is not a ground to declare the election of respondent No.1 as void in terms of Section - 100 of the Act, 1951.
8. LEGAL POSITION:
i) The Constitution Bench of the Hon'ble Supreme Court in Union of India (UOI) v. Association for Democratic Reforms 1 and People's Union of Civil Liberties v. Union of India 2 categorically held regarding filing of affidavits and giving detailed particulars in affidavit in Form 26. The said direction is being given just to ensure that false declarations are not being given by returned candidate, nor nomination forms are being submitted making false declarations. The Apex Court also held that right to know about the candidate standing for election has been brought within the sweep of Article - 19 (1) (a). There can be no doubt that by doing so, a new dimension has been given to the right embodied in Article - 19 (1) (a) of the Constitution of India through a creative approach dictated by the need to improve and refine the political process of election. In carving out this right, the Court had not traversed a beaten track but took a fresh path. It must be noted that the right to 1 . (2002) 5 SCC 294 2 . (2003) 4 SCC 399 12 KL,J E.P. No.10 of 2024 information evolved by the Apex Court in the said case is qualitatively different from the right to get information about public affairs or the right to receive information through press and electronic media, though to a certain extent, there may be overlapping. The right to information of a voter/citizen is sought to be enforced against an individual who intends to become a public figure and the information relates to his personal matters. A decision-making process of a voter would include his right to know about public functionaries who are required to be elected by him.
Till a candidate gets elected and enters the House, it would not be appropriate to refer to him as a public functionary. Therefore, the right to know about a public act done by a public functionary is not the same thing as the right to know about the antecedents of the candidate contesting the election. Nevertheless, the conclusion reached by the Court that the voter has such a right and that the right falls within the realm of freedom of speech and expression guaranteed by Article - 19 (1) (a) can be justified on good and substantial grounds.
ii) In People's Union of Civil Liberties2, the Apex Court referring to the provisions of the Act, 1951 etc., laid down certain conclusions, which are relevant and the same are extracted hereunder: 13
KL,J E.P. No.10 of 2024 "V. Conclusions
123. Finally, the summary of my conclusions:
(1) Securing information on the basic details concerning the candidates contesting for elections to Parliament or the State Legislature promotes freedom of expression and therefore the right to information forms an integral part of Article 19(1)(a). This right to information is, however, qualitatively different from the right to get information about public affairs or the right to receive information through the press and electronic media, though, to a certain extent, there may be overlapping.
(2) The right to vote at the elections to the House of the People or Legislative Assembly is a constitutional right but not merely a statutory right; freedom of voting as distinct from right to vote is a facet of the fundamental right enshrined in Article 19(1)(a). The casting of vote in favour of one or the other candidate marks the accomplishment of freedom of expression of the voter.
(3) The directives given by this Court in Union of India v. Assn. for Democratic Reforms [Ed.: See full text at 2003 Current Central Legislation, Pt. II, at p.
3] were intended to operate only till the law was made by the legislature and in that sense "pro tempore" in nature. Once legislation is made, the Court has to make an independent assessment in 14 KL,J E.P. No.10 of 2024 order to evaluate whether the items of information statutorily ordained are reasonably adequate to secure the right of information available to the voter/citizen. In embarking on this exercise, the points of disclosure indicated by this Court, even if they be tentative or ad hoc in nature, should be given due weight and substantial departure therefrom cannot be countenanced.
(4) The Court has to take a holistic view and adopt a balanced approach in examining the legislation providing for right to information and laying down the parameters of that right.
(5) Section 33-B inserted by the Representation of the People (Third Amendment) Act, 2002 does not pass the test of constitutionality, firstly, for the reason that it imposes a blanket ban on dissemination of information other than that spelt out in the enactment irrespective of the need of the hour and the future exigencies and expedients and secondly, for the reason that the ban operates despite the fact that the disclosure of information now provided for is deficient and inadequate.
(6) The right to information provided for by Parliament under Section 33-A in regard to the pending criminal cases and past involvement in such cases is reasonably adequate to safeguard the right to information vested in the voter/citizen. However, 15 KL,J E.P. No.10 of 2024 there is no good reason for excluding the pending cases in which cognizance has been taken by the Court from the ambit of disclosure.
(7) The provision made in Section 75-A regarding declaration of assets and liabilities of the elected candidates to the Speaker or the Chairman of the House has failed to effectuate the right to information and the freedom of expression of the voters/citizens. Having accepted the need to insist on disclosure of assets and liabilities of the elected candidate together with those of the spouse or dependent children, Parliament ought to have made a provision for furnishing this information at the time of filing the nomination. Failure to do so has resulted in the violation of guarantee under Article 19(1)(a). (8) The failure to provide for disclosure of educational qualification does not, in practical terms, infringe the freedom of expression.
(9) The Election Commission has to issue revised instructions to ensure implementation of Section 33- A subject to what is laid down in this judgment regarding the cases in which cognizance has been taken. The Election Commission's orders related to disclosure of assets and liabilities will still hold good and continue to be operative. However, Direction 4 of para 14 insofar as verification of assets and liabilities by means of summary enquiry and rejection of 16 KL,J E.P. No.10 of 2024 nomination paper on the ground of furnishing wrong information or suppressing material information should not be enforced."
iii) The Apex Court in Karikho Kri v. Nuney Tayang 3 placing reliance on the said judgments further held that the direction given by the Apex Court to file affidavits by giving detailed particulars in Form 26 does not mean that if the complete information is being given in the affidavit annexing an Annexure to it, the same cannot be said to be the non-compliance. The allegation against Sri Karikho Kri, a returned candidate was that he has suppressed the fact of owning three (03) vehicles and non-submission of no due certificate in the context of electricity and water charges in respect of Government accommodation occupied by him, the Apex Court held the contention of the election petitioner that such non-disclosure is a defect of substantial character cannot be accepted since in that circumstance it is not a case of improperly accepted nomination, it certainly has not materially affected the result of the election as contemplated in Section - 100 (1) (d) (i)
(iv) of the Act, 1951. Even if the object with which the Apex Court in Association for Democratic Reforms1 has required the disclosure of 3 . 2024 SCC OnLine SC 519 17 KL,J E.P. No.10 of 2024 assets is kept in view, the facts involved therein would indicate that the allegation therein cannot be taken as non-disclosure though it could have been open for the appellant therein to indicate such aspect in the affidavit, but in any event, it is not a substantial defect so as to materially affect the result of the election in the facts and circumstances of the said case.
iv) In Association for Democratic Reforms1 and Lok Prahari through its General Secretary v. Union of India 4, the Apex Court held that for effective exercise of his fundamental right under Article - 19 (1)
(a), the voter is entitled to have all the relevant information about candidates at an election which would include criminal antecedents, if any, of the candidate, his/her spouse and dependants assets and liabilities, their educational qualifications etc.
v) Thus, the voter has the right to know about the candidate standing for election has been brought within the ambit of Article - 19 (1) (a) of the Constitution of India. The right to information of the voter is sought to be enforced against an individual who intends to become a 4 . (2018) 4 SCC 699 18 KL,J E.P. No.10 of 2024 public figure and the information relates to his personal matters including the details of spouse and dependants.
vi) As discussed above, in Karikho Kri3, a returned candidate, suppressed about owning of three (03) vehicles and that he has not furnished no due certificate in the context of electricity and water charges since he has occupied Government accommodation in MLA Cottage No.1. Considering the same, the Apex Court held that such non- disclosure cannot, by any stretch of imagination, be treated as an attempt on his part to unduly influence the voters, thereby inviting the wrath of Section - 123(2) of the Act 1951. The said Karikho Kri had declared the value of the movable assets of his dependent family members and himself as Rs.8,41,87,815/-. The value of the three vehicles in question, by comparison, would be a mere miniscule of this figure. In any event, suppression of the value of these three vehicles would have no impact on the declaration of wealth by Karikho Kri and such non-disclosure could not be said to amount to 'undue influence'.
a) In Resurgence India v. Election Commission of India 5, a 3- Judge Bench of the Apex Court observed that if the Election 5 . (2014) 14 SCC 189 19 KL,J E.P. No.10 of 2024 Commission accepts nomination papers in spite of blank particulars therein, it would directly violate the fundamental right of the citizen to know the criminal antecedents, assets, liabilities and educational qualifications of the candidate. It was observed that accepting an affidavit with such blanks would rescind the verdict in Association for Democratic Reforms1. An affidavit with blank particulars would render the affidavit nugatory.
b) In Kisan Shankar Kathore v. Arun Dattatray Sawant 6, the Apex Court considered the issue of non-disclosure of certain government dues in the nomination and whether it amounts to a material lapse impacting the election of the returned candidate. The Apex Court held that non-disclosure of electricity and municipal dues was not a serious lapse as there was a dispute raised in the context thereof. The Apex Court clarified that it would depend upon the facts and circumstances of each case as to whether such non-disclosure would amount to a material lapse or not. Material lapses by the returned candidate, inasmuch as he had failed to disclose the bungalow standing in the name of his wife and also a vehicle owned by her. He had also failed to disclose his 6 . (2014) 14 SCC 162 20 KL,J E.P. No.10 of 2024 interest/share in a partnership firm which amounted to a very serious and major lapse.
c) Paragraph No.43 of the said judgment is relevant and the same is extracted as under:
43. When the information is given by a candidate in "
the affidavit filed along with the nomination paper and objections are raised thereto questioning the correctness of the information or alleging that there is non-disclosure of certain important information, it may not be possible for the Returning Officer at that time to conduct a detailed examination. Summary enquiry may not suffice. The present case is itself an example which loudly demonstrates this. At the same time, it would not be possible for the Returning Officer to reject the nomination for want of verification about the allegations made by the objector. In such a case, when ultimately it is proved that it was a case of non-disclosure and either the affidavit was false or it did not contain complete information leading to suppression, it can be held at that stage that the nomination was improperly accepted. Ms. Meenakshi Arora, learned Senior Counsel appearing for the Election Commission, rightly argued that such an enquiry can be only at a later stage and the appropriate stage would be in an election petition as in the instant case, when the 21 KL,J E.P. No.10 of 2024 election is challenged. The grounds stated in Section 36 (2) are those which can be examined there and then and on that basis the Returning Officer would be in a position to reject the nomination. Likewise, where the blanks are left in an affidavit, nomination can be rejected there and then. In other cases where detailed enquiry is needed, it would depend upon the outcome thereof, in an election petition, as to whether the nomination was properly accepted or it was a case of improper acceptance. Once it is found that it was a case of improper acceptance, as there was misinformation or suppression of material information, one can state that question of rejection in such a case was only deferred to a later date. When the Court gives such a finding, which would have resulted in rejection, the effect would be same, namely, such a candidate was not entitled to contest and the election is void. Otherwise, it would be an anomalous situation that even when criminal proceedings under Section 125-A of the Act can be initiated and the selected candidate is criminally prosecuted and convicted, but the result of his election cannot be questioned. This cannot be countenanced."
d) In Lok Prahari4, the Apex Court held that non-disclosure of assets and sources of income of candidates and their associates would 22 KL,J E.P. No.10 of 2024 constitute a corrupt practice falling under the heading 'undue influence' as defined under Section - 123 (2) of the Act 1951.
e) In Rukmini Medagowda v. State Election Commission 7, a 3- Judge Bench of Apex Court held that a false declaration with regard to the assets of a candidate, his/her spouse or dependents, would constitute a corrupt practice irrespective of its impact on the election of the candidate as it may be presumed that a false declaration would impact the election.
f) In Mairembam Prithviraj @ Prithviraj Singh v. Pukhrem Sharatchandra Singh 8, the Apex Court had an occasion to consider the difference between improper acceptances of the nomination of a returned candidate as opposed to improper acceptance of the nomination of any other candidate. It was held that a mere finding that there has been an improper acceptance of a nomination would not be sufficient for a declaration that the election is void under Section - 100 (1) (d) (i) of the Act, 1951 and there has to be further pleading and proof that the result of the election of the returned candidate was materially affected, but there would be no necessity of any such proof in the event of the nomination 7 . 2022 SCC OnLine SC 1218 8 . (2017) 2 SCC 487 23 KL,J E.P. No.10 of 2024 of the returned candidate being declared as having been improperly accepted, especially in a case where there are only two candidates in the fray.
g) In Kisan Shankar Kathore6, the Apex Court considered two facets that are required consideration i.e., (i) whether there is substantial compliance in disclosing requisite information in the affidavits filed along with the nomination and (ii) whether non-disclosure of information on identified aspects materially affected the result of the election, on examination of the facts, the Apex Court held that non-disclosure of the electricity dues in that case was not a serious lapse, despite the fact that there were dues outstanding, as there was a bona fide dispute about the same. Similar observation was made in relation to non-disclosure of municipal dues, where there was a genuine dispute as to revaluation and re-assessment for the purpose of tax assessment.
h) In Sambhu Prasad Sharma v. Charandas Mahant 9, the Apex Court held that nomination paper is not considered sacrosanct and what is to be seen is whether there is substantial compliance with the requirement as to form and every departure from the prescribed format 9 . (2012) 11 SCC 390 24 KL,J E.P. No.10 of 2024 cannot, therefore, be made a ground for the rejection of the nomination paper.
i) On consideration of the aforesaid judgments, in Karikho Kri3 at paragraph No.44 the Apex Court held as follows:
"44. Though it has been strenuously contended before us that the voter's 'right to know' is absolute and a candidate contesting the election must be forthright about all his particulars, we are not inclined to accept the blanket proposition that a candidate is required to lay his life out threadbare for examination by the electorate. His 'right to privacy' would still survive as regards matters which are of no concern to the voter or are irrelevant to his candidature for public office. In that respect, non-disclosure of each and every asset owned by a candidate would not amount to a defect, much less, a defect of a substantial character. It is not necessary that a candidate declare every item of movable property that he or his dependent family members owns, such as, clothing, shoes, crockery, stationery and furniture, etc., unless the same is of such value as to constitute a sizeable asset in itself or reflect upon his candidature, in terms of his lifestyle, and require to be disclosed. Every case would have to turn on its own peculiarities and there can be no hard and fast or straitjacketed rule as to when the non-disclosure of a 25 KL,J E.P. No.10 of 2024 particular movable asset by a candidate would amount to a defect of a substantial character. For example, a candidate and his family who own several high-priced watches, which would aggregate to a huge figure in terms of monetary value, would obviously have to disclose the same as they constitute an asset of high value and also reflect upon his lavish lifestyle. Suppression of the same would constitute 'undue influence' upon the voter as that relevant information about the candidate is being kept away from the voter. However, if a candidate and his family members each own a simple watch, which is not highly priced, suppression of the value of such watches may not amount to a defect at all. Each case would, therefore, have to be judged on its own facts."
j) In Mangani Lal Mandal v. Bishnu Deo Bhandari 10, wherein a returned candidate is alleged to be guilty of non-compliance with the provisions of the Constitution or the Act 1951 or any Rules or Orders made thereunder and his election sought to be declared as void on that ground, the Apex Court held that it is essential for the election petitioner to aver, by pleading material facts, that the result of the election insofar as it concerned the returned candidate has been materially affected by such breach or non-observance. It is only on the basis of such pleading 10 . (2012) 3 SCC 314 26 KL,J E.P. No.10 of 2024 and proof that the Court would be in a position to form an opinion and record a finding that such breach or non-compliance has materially affected the result of the election before election of the returned candidate could be declared void. Mere non-compliance or breach of the Constitution or the statutory provisions, as stated above, would not result in invalidating the election of the returned candidate under Section
- 100 (1) (d) (iv) as the sine qua non for declaring the election of a returned candidate to be void on that ground under Clause - (iv) of Section - 100 (1) (d) is further proof of the fact that such breach or non- observance has resulted in materially affecting the election of the returned candidate. For the election petitioner to succeed on such ground, viz., Section - 100 (1) (d) (iv), there is heavy onus to not only plead and prove the breach but also show that the result of the election, insofar as it concerned the returned candidate, has been materially affected thereby.
k) The sum and substance of the aforesaid judgments is that every case would have to turn on its own peculiarities and there can be no hard and fast or straitjacketed rule as to when the non-disclosure of a particular aspect including assets, income tax returns by a candidate 27 KL,J E.P. No.10 of 2024 would amount to a defect of a substantial character. This Court has to examine facts of each and every case, basing on the evidence, both oral and documentary, come to a conclusion with regard to non-compliance and as to whether the said non-compliance is substantial character in nature.
l) As discussed above, in Karikho Kri3, a returned candidate, did not disclose three (03) vehicles and no due certificate in the context of electricity and water charges in respect of the Government accommodation occupied by him, the Apex Court held that non- disclosure of the same will not affect the election materially and the said non-disclosure is not of a substantial character in nature.
vii) In the light of the aforesaid principle laid down by the Apex Court and discussion, coming to the facts of the present case, according to the election petitioner, respondent No.1 - returned candidate did not mention four (04) years of income tax returns in Ex.A4 - Form 26. It is not a ground to declare the election of respondent No.1 - returned candidate as void in terms of Section - 100 of the Act, 1951. She has to mention the same in the affidavit filed in Form 26 in terms of the 28 KL,J E.P. No.10 of 2024 principle laid down by the Apex Court in Association for Democratic Reforms1.
9. In the light of the above, it is relevant to note that, the affidavit in Form 26 to be filed under Rule - 4A of the Rules, 1961. Clause - 4 says with regard to the details of permanent account number (PAN) and Status of filing of Income Tax Returns. It contains tabular form consists of serial number, names, PAN Number, the financial year for which the last income tax return has been filed and total income shown in Income Tax Return for the last five (05) financial years completed as on 31st March.
i) In Ex.A4 - Form 26, respondent No.1 - returned candidate mentioned as follows:
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a) Thus, she has disclosed PAN Number and Income Tax Returns for the year 2022-23 as Rs.11,15,000/-, and in respect of preceding four (04) years, she has mentioned as 'NIL'. However, she has disclosed income tax returns of her husband for the five years.
b) In Ex.A4, affidavit in Form 26 itself, it is mentioned as follows:
"Note: It is mandatory for PAN holder to mention PAN and in case of no PAN, it should be clearly stated "No PAN allotted".
c) As per Clause - 7 of the said affidavit, respondent No.1 - returned candidate has to disclose her movable and immovable assets. She has disclosed the same. There is no dispute with regard to the same.
d) It is also apt to note that as per Clause - 9 of the said affidavit, respondent No.1 - returned candidate shall disclose the details of profession or occupation. In Ex.A4 - Form 26, she has disclosed the same, which is as follows:
"(9) Details of profession or occupation:
(a) Self : Zilla Parishad Chairperson - Kumram Bheem Asifabad
(b) Spouse : Government Teacher (9A) Details of source (s) of income:
(a) Self : Honorarium 30 KL,J E.P. No.10 of 2024 (b) Spouse : Salary
(c) Source of income, if any, of dependents : Not Applicable."
e) As per Part-B of the said Form 26, Clause - 11 of the said affidavit, respondent No.1 - returned candidate has to mention the abstract of details given in Serial Nos.1 to 10 of Part-A, which includes description of bank account, PAN Number, year for which last income tax return filed, total income shown, movable and immovable assets including herself and her spouse and dependents. She has disclosed the same.
f) Thus, respondent No.1 - returned candidate did not mention four (04) years of income tax returns in the tabular form of Clause - (4) of Ex.A4 - affidavit. She has disclosed her PAN Number, assets and liabilities etc.
g) Whether on the ground of non-mentioning of four (04) years income tax returns prior to 2022-23, the election of respondent No.1 - returned candidate can be set aside declaring it as substantial character in nature is the only point for consideration in the present election petition. 31
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ii) It is not in dispute that respondent No.1 - returned candidate worked as Chairman of Zilla Parishad, Kumurambheem - Asifabad District for the period from 04.07.2019 to 03.12.2023 and she has received an amount of Rs.1,00,000/- honorarium from the Government. It is also not in dispute that she was a Member of Legislative Assembly from Asifabad Constituency for the period from 2014-2018 and she received salary of Rs.1,50,000/- initially and later it was enhanced to Rs.3.00 lakhs. The said facts were also admitted by respondent No.1 - returned candidate in her cross-examination.
iii) The election petitioner as PW.1 deposed in his chief- examination that he was the official candidate put up by the Indian National Congress, while respondent No.1 was the nominee of BRS from the subject constituency. Respondent No.1 failed to comply with the provisions regarding the submission of nomination as prescribed under the Act, 1951, Rules, 1961 and the Orders made thereunder by the Election Commission. As per Form 26, respondent No.1 has to submit five years Income Tax Returns i.e., 2022-23, 2021-22, 2022-21, 2019-20 and 2018-19. She has submitted affidavit with incomplete information as she has mentioned only one year income tax returns i.e., 2022-23. 32
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a) He further deposed that respondent No.1 contested the General Elections, 2018 to the subject constituency by submitting Form 26 showing her income for the year 2017-18 as Rs.5,40,000/- only. Thus, respondent No.1 showing her income tax returns for the year 2017-18 in Form 26 in 2018 Elections, deliberately suppressed her income for the years 2022-21, 2021-20, 2020-19 and 2019-18. She concealed her income of the preceding four years.
b) PW.1 further deposed that respondent No.1 contested the Zilla Parishad Territorial Constituency, Jainoor, Komrumbheem - Asifabad District in the year 2019. At the time of submission of nomination for the ZPTC, she filed an affidavit showing her income as Rs.5,40,000/- for the year 2017-18. In the said elections, she was elected as ZPTC Member, Jainoor and, thereafter, was elected as Chairman of Zilla Parishad and continued as such till November, 2023. She was drawing Rs.1,00,000/- per month which comes to Rs.12,00,000/- per year. Apart from the said honorarium as Chairman, Zilla Praja Parishad, respondent No.1 was drawing monthly MLA Pension of Rs.30,000/- for her being a Member of Legislative Assembly from 2014-18. The said pension was enhanced to Rs.50,000/- vide G.O.Ms.No.28, dated 30.03.2021. 33
KL,J E.P. No.10 of 2024 Respondent No.1 suppressed the said income also deliberately. Therefore, the election of respondent No.1 and declaration to that effect made by the Returning Officer on 03.12.2023 from the subject constituency is liable to be declared as void.
c) In cross-examination, PW.1 admitted that nomination of respondent No.1 is in the conformity with Form 2B. He has no grievance with Form 26 of respondent No.1 (Ex.A4) in any aspect except the one that relates to income shown by her as 'NIL' for previous four years. There is a mention in Ex.A4 with regard to PAN number of respondent No.1 and the income for the year 2022-23. Form 26 was filed in accordance with Section - 33A of the Act, 1951. He also admitted that the Election Returning Officer has displayed the affidavit and nomination papers of all contestants including respondent No.1 in the notice board and the same were uploaded on the website of the Election Commission of India. At the time of scrutiny of nomination papers of contestants, his election agent was present on his behalf and he raised an objection with regard to non-submission of income tax returns for four years preceding to nomination orally. The returning officer refused to take written objection. There is no mention either in his 34 KL,J E.P. No.10 of 2024 election petition or in his evidence affidavit about the rejection of his objection by the Election Officer.
iv) Respondent No.1 as RW.1 deposed in her chief examination that she contested as a candidate from the subject constituency in General Election held in the month of November, 2023. As per the election schedule, polling was held on 30.11.2023. She was declared elected from the subject constituency by a majority of 22798 votes. She submitted Form 26 disclosing her source of income along with PAN number, bank balance including account details, movable and immovable assets and liabilities by furnishing all the required information. The said nomination was duly scrutinized and accepted by the Returning Officer and there were no objections at the time of scrutiny. Her nomination form was in compliance with the requirements of the Act, 1951 and the Rules, 1961.
a) She further deposed that she contested in the General Elections, 2018 from the subject constituency. She also contested in the year 2019 to the ZPTC and subsequently was elected as Chairman of Zilla Praja Parishad and continued in the said post till December, 2023. She has mentioned in Form 26, source of income column as 'honorarium as ZP 35 KL,J E.P. No.10 of 2024 Chairperson. Between 04.07.2019 to 03.12.2023, she has not drawn any Ex-Legislator Pension as certified by the Assistant Secretary to the State Legislature.
b) In the cross-examination, RW.1 admitted that she knows the particulars of column No.4 of Ex.A4 and the particulars to be filled up by her. She also admitted that in the said column, she has mentioned her income for the year 2022-23 only i.e., Rs.11,50,000/- and for the years 2018-19, 2019-20, 2020-21, 2021-22, she has mentioned as 'Nil'. However, she stated that she has submitted income tax returns.
v) The aforesaid deposition of RW.1 would reveal the fact that she was the Member of the subject constituency from 2014-18 and she was Chairman of Zilla Praja Parishad, Kumurambheem - Asifabad District for the period from 04.07.2019 to 03.12.2023. She filed her nomination from the subject Constituency in November, 2023. Except for non-mentioning four (04) years income tax returns prior to 2022-23 financial year, she has disclosed her PAN number, details of assets and liabilities, both movable and immovable including bank deposits, fixed deposits, vehicles, jewellery etc. She has also disclosed the details of movable and immovable properties of her husband. 36
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vi) During cross-examination, the election petitioner (PW.1) categorically admitted that "R1 has been in political life for the year 25 years and that she served as MPP President, Sarpanch, MLA, ZP Chairman and that she knows the election process and procedure."
vii) As stated above, respondent No.1 - returned candidate has to mention the said facts including income tax returns for five (05) years in the affidavit in Form 26 as per the directions of the Apex Court in Association for Democratic Reforms1, and non-mentioning of her four (04) years income tax prior to 2022-23 is not a ground to declare her election as void as per Section - 100 of the Act, 1951. In the counter, she has specifically contended that she has disclosed her source of income along with PAN number, movable and immovable assets and liabilities. Therefore, there is no deliberate suppression of the same by her and it does not amount to corrupt practice and it is not an undue influence.
viii) It is apt to note that she is a public representative and she was the Member of Assembly Constituency from 2014-18 and the Chairman of Zilla Parishad, Kumurambheem - Asifabad District for the period from 04.07.2019 to 03.12.2023. For the second time, she has filed nomination from the very same Constituency. Therefore, this Court 37 KL,J E.P. No.10 of 2024 is of the considered view that non-mentioning of income tax details for four (04) years prior to financial year 2022-23 in column No.4 of Ex.A4
- Form 26 does not render her election as void.
ix) It is relevant to note that there should be purity of election at every stage. Election process is sacrosanct. Free and fair election is the sacrosanct thread that weaves our Country's democratic fabric. In the election petition, the verdict and mandate of electorate in a democratic party is a sacrosanct one and cannot be lightly set at naught, unless grounds upon which the same is sought to be challenged and established convincingly and clinchingly.
x) In Santosh Yadav v. Narender Singh 11, the Apex Court held that the success of a winning candidate at an election should not be lightly interfered with. This is all the more so, when the election of a successful candidate is sought to be set aside for no fault of his but of someone else. The Apex Court also summed up the law and the grounds as regards the result of the election petition having been materially affected in case of improper acceptance of nomination. In Harsh 11 . (2002) 1 SCC 160 38 KL,J E.P. No.10 of 2024 Kumar v. Bhagwan Sahai Rawat 12, the Apex Court reiterated the said principle.
xi) In Jyoti Priya Mallick v. State of West Bengal 13, the Division Bench of the Calcutta High Court also held that the election is very sacrosanct in democracy and if the election process is being polluted by persons who are entrusted to conduct the election impartially, then the same will affect the sustainance of Indian Democracy.
xii) It is also apt to note that in People's Union of Civil Liberties2, the Apex Court held that voter has the right not to vote and in compliance with the same order, the Election Commission of India made a provision not to vote in EVMs i.e., NOTA. Thus, voter has right not to vote.
xiii) In the present case, respondent No.1 - returned candidate got 83,036 votes, whereas the election petitioner got 60,238 votes. Thus, respondent No.1 - returned candidate stood elected with a margin of 22,798 votes. Therefore, voters of the said constituency reposed confidence on her. The said election of respondent No.1 - returned 12 . (2003) 7 SCC 709 13 . (2001) SCC OnLine Cal. 144 (DB) 39 KL,J E.P. No.10 of 2024 candidate cannot be lightly interfered with unless there are grounds to set aside her election in terms of Section - 100 of the Act, 1951, and there should be non-disclosure of material facts in the affidavit in Form 26 which should be substantial in nature. The object of filing of the said affidavit in Form 26 by disclosing all the details including criminal antecedents, assets and liabilities of the candidate, spouse and dependents etc., is that the voter should know such particulars of a contesting candidate before taking a decision to vote in favour of a particular candidate. It became part and parcel of Article - 19 (1) (a) of the Constitution of India. Therefore, this Court is of the considered view that non-mentioning of four (04) years of income tax returns prior to financial year 2022-23 by respondent No.1 - returned candidate in the affidavit in Form 26 is not substantial in nature and on the said ground, this Court cannot set aside the election of respondent No.1, more particularly when she has disclosed her PAN number, details of bank accounts, deposits, assets and liabilities including movable and immovable etc. 40 KL,J E.P. No.10 of 2024
xiv) It is relevant to note that in Krishnamoorthy v. Sivakumar 14, the Apex Court held that non-disclosure of assets and source of income of the candidates and their associates would constitute a corrupt practice falling under heading "undue influence" as defined under Section - 123 (2) of the Act, 1951. In the present case, respondent No.1 - returned candidate has disclosed her assets, both movable and immovable, liabilities and also her spouse. Therefore, there is disclosure. Thus, there is no undue influence as contended by the election petitioner.
xv) Mr. J. Ramachandra Rao, learned senior counsel representing Mr. S. Santosh Kumar, learned counsel for respondent No.1 - returned candidate, would contend that the election petitioner did not submit any objection with regard to non-mentioning of four years of income tax returns by respondent No.1 at the time of scrutiny in terms of Section - 36 of the Act, 1951. Therefore, the election petitioner cannot raise such contention and file the present election petition.
xvi) Section - 36 of the Act, 1951 deals with 'scrutiny of nomination'. During the said scrutiny and while accepting nomination, 14 . (2015) 3 SCC 467 41 KL,J E.P. No.10 of 2024 Returning Officer will only see as to whether the candidate filled all the columns or not and he will ensure that there would not be any column kept blank. During scrutiny, he cannot conduct roving enquiry. The said principle was also laid down by the Apex Court in Resurgence India5, Kisan Shankar Kathore6 and Karikho Kri3.
xvii) In the present case also, the only allegation against respondent No.1 by the election petitioner is that she did not mention income tax returns for the four (04) financial years prior to the financial year 2022-23 and has mentioned as NIL. Therefore, according to the election petitioner, he has obtained information and filed the present election petition. In the light of the said submission, the contention of Mr. J. Ramachandra Rao, learned senior counsel appearing on behalf of respondent No.1 - returned candidate that the election petitioner failed to raise such objection, is untenable.
xviii) Mr. J. Ramachandra Rao, learned senior counsel also contended that the election petitioner did not mention all the material facts in terms of Section - 83 of the Act, 1951. It is apt to note that Section - 83 of the Act, 1951 deals with 'contents of petition', and it says election petition shall contain a concise statement of the material facts, 42 KL,J E.P. No.10 of 2024 on which the petitioner relies, shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of commission of each such practice etc. xix) It is relevant to note that the election petitioner has specifically contended that respondent No.1 - returned candidate did not mention the income tax returns for four (04) financial years prior to the financial year 2022-23. Thus, he has to plead and prove the same, he examined himself as PW.1 and got marked Exs.A1 to A8. Therefore, the said contention of learned senior counsel appearing for respondent No.1 is also untenable.
xx) Mr. J. Ramachandra Rao, learned senior counsel would also contend that the Returning Officer accepted the nomination of respondent No.1 - returned candidate, which itself would disclose that there is no defect in the nomination including Form 26, and there is no non-disclosure of any fact.
43
KL,J E.P. No.10 of 2024 xxi) In this regard, it is relevant to note that in Vashist Narain Sharma v. Dev Chandra 15, a 3-Judge Bench of the Apex Court held that the burden of proving that the improper acceptance of a nomination has materially affected the result of an election would arise in one of three ways: (i) where the candidate whose nomination was improperly accepted had secured less votes than the difference between the returned candidate and the candidate securing the next highest number of votes,
(ii) where the person referred to above secured more votes, or (iii) where the person whose nomination has been improperly accepted is the returned candidate himself. It was further held that in the first case the result of the election would not be materially affected because if all the wasted votes were added to the votes of the candidate securing the next highest votes, it would make no difference to the result and the returned candidate would retain the seat. However, in the other two cases, the result may be materially affected and insofar as the third case is concerned, it may be readily conceded that such would be the conclusion.
15 . (1954) 2 SCC 32 44 KL,J E.P. No.10 of 2024 xxii) In Hari Vishnu Kamath v. Syed Ahmad Ishaque 16 a Constitution Bench of 7-Judges considered the scope of enquiry under Section - 100 (1) (d) of the Act 1951. It was held that the said provision required before an order setting aside an election could be made, that two conditions be satisfied. It must, firstly, be shown that there has been improper reception or refusal of a vote or reception of any vote which is void, or non-compliance with the provisions of the Constitution or the Act 1951, or any Rules or Orders made thereunder, relating to the election or any mistake in the use of the prescribed form and it must further be shown that, as a consequence thereof, the result of the election has been materially affected. The Bench observed that the two conditions are cumulative and must both be established. The burden of establishing them is on the person who seeks to have the election set aside.
xxiii) The said principle was followed by a 3-Judge Bench of the Apex Court in Kamta Prasad Upadhyaya v. Sarjoo Prasad Tiwari 17.
xxiv) In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal 18, a 3-Judge Bench of the Apex Court in a similar vein to the 16 . (1954) 2 SCC 881 17 . (1969) 3 SCC 622 45 KL,J E.P. No.10 of 2024 view taken in Vashist Narain Sharma15 held that where a person whose nomination has been improperly accepted is the returned candidate himself, it may be readily conceded that the conclusion has to be that the result of the election was 'materially affected' without there being any necessity to plead and prove the same.
xxv) In Madiraju Venkata Ramana Raju v. Peddireddigari Ramachandra Reddy 19, a 3-Judge Bench of the Apex Court reiterated that if there are more than two candidates and if the nomination of one of the defeated candidates has been improperly accepted, a question might arise as to whether the result of the election of the returned candidate has been materially affected by such improper reception but that would not be so in the case of challenge to the election of the returned candidate himself on the ground of improper acceptance of his nomination.
xxvi) Considering the said principle, in Karikho Kri3 the Apex Court held that if acceptance of the nomination of returned candidate is shown to be improper, it would automatically mean that the same materially affected the result of the election and nothing more needs to be pleaded or proved.
18 . (2020) 7 SCC 1 19 . (2018) 14 SCC 1 46 KL,J E.P. No.10 of 2024 xxvii) As discussed above, in the present case, nomination of respondent No.1 - returned candidate was accepted and there is no improper acceptance. As stated above, at the time of receiving the nomination, Returning Officer will only verify as to whether candidate filled all the columns or not. He cannot conduct a roving enquiry at the stage of scrutiny of nomination in terms of Section - 36 of the Act, 1951. Moreover, in the present case, the election petitioner did not raise any objection with regard to non-mentioning of income tax returns for four (04) financial years prior to the financial year 2022-23. Therefore, this Court is of the considered opinion that the contention of the election petitioner that the nomination of respondent No.1 - returned candidate was accepted improperly is unsustainable.
xxviii) In Kanimozhi Karunanidhi v. A. Santhana Kumar 20, the returned candidate has not disclosed the payment of income tax of her spouse in the affidavit in Form 26 and, thus, she has intentionally suppressed and not disclosed the same to the electors. Considering the same, the Apex Court held that such non-disclosure is not substantial character in nature and it will not render election of returned candidate as invalid.
20. 2023 SCC OnLine SC 573 47 KL,J E.P. No.10 of 2024 xxix) It is also apt to note that in Rakesh Kumar Pandey v. Ajay Arjun Singh 21, the Madhya Pradesh High Court relying on the principle laid down in the aforesaid judgments, held that mere minor differences in the nomination form or non- disclosure of some information regarding dues, as in the present case cannot be said to be a substantial defect so as to materially affect the result of the election.
xxx) In Syed Abu Dojana v. Dilip Ray 22, the Patna High Court relying on the principle laid down by it and also on examination of facts therein, held that non-disclosure is not substantial in nature and on that ground election of returned candidate cannot be set aside. It was further held that the said non-disclosure depend upon the facts and circumstances of each case and suppression of information as to the assets of returned candidate and his/her spouse and non-disclosure of the same would amount to material lapses by the returned candidate or not. It was further held that the law as to the disqualification of a candidate demands that there must be substantial non-compliance of statuary provisions. Mere procedural irregularities are not sufficient to declare an 21 . 2024 MPHC-JBP 41862 22 . 2024 SCC OnLine Pat. 3134 48 KL,J E.P. No.10 of 2024 election void. However, if such irregularities lead to corruption, an election may be declared as void.
xxxi) In Smt. D.K.Aruna @ Arundhathi v. Bandla Krishna Mohan Reddy 23, where there are suppression of three (03) bank accounts by the returned candidate and also considering the fact that respondent No.1 - returned candidate did not enter his appearance in the said election petition to disprove the same, this Court set aside the election of returned candidate. However, it is brought to the notice of this Court that the said order was stayed by the Apex Court and the matter is pending. Whereas in the present case, there is no suppression of movable and immovable assets by respondent No.1 - returned candidate of herself and her spouse.
xxxii) In Jalagam Venkat Rao v. Mr. Vanama Venkateswara Rao 24, wherein the returned candidate suppressed the details of Rythu Bandhu and that he did not enter appearance to disprove said suppression, this Court declared the election of the returned candidate as void. It is brought to the notice of this Court that the returned candidate approached the Apex Court and filed SLP and the Apex court granted 23 . E.P. No.4 of 2019, decided on 24.08.2023 24 . E.P. No.31 of 2019, decided on 25.07.2023 49 KL,J E.P. No.10 of 2024 stay. The matter is pending. Whereas in the present case, as already discussed above, there is no suppression of any information and it is only non-mentioning of income tax returns for four (04) financial years prior to the financial year 2022-23 by respondent No.1 - returned candidate. However, she has disclosed the details of movable and immovable assets of herself and her spouse.
xxxiii) In Karim Uddin Barbhuiya v. Aminul Haque Laskar 25, the Apex Court on examination of the facts of the said case where election petitioner made only bald and vague allegations in the Election Petition without stating the material facts in support thereof as required to be stated under Section - 83 (1) (a) of the Act, 1951, and that none of the allegations with regard to the false statements, suppression and misrepresentation of facts allegedly made by election petitioner with regard to his educational qualification or with regard to his liability in respect of the loan availed by him for his partnership firm or with regard to his default in depositing the employer's contribution to provident fund, would fall within the definition of "corrupt practice" or "undue influence" as envisaged in Section - 123 (2) of the Act, 1951. The election petition also lacks concise statement of "material facts" as 25 . 2024 SCC OnLine SC 509 50 KL,J E.P. No.10 of 2024 contemplated in Section - 83 (a) of the Act, 1951. The election petitioner did not raise any objection in writing against the nomination filed by the returned candidate. Thus, the facts of the said case are different to the facts of the present case.
xxxiv) In Lok Prahari4, there was non-disclosure of assets and source of income of candidate and his associate, the Apex Court held that it amounts to 'corrupt practice' and 'undue influence'. Since it is an attempt to suppress, effort to misguide and keep the voter in dark. Whereas in the present case, there is no suppression of fact including assets and liabilities of the respondent No.1 and her spouse. Therefore, the facts of the said case are different to the facts of the present case.
xxxv) In Rukmini Medagowda7, returned candidate, who contested for the post of Mayor, Council of Mysore Municipal Corporation, failed to disclose his assets, and it amounts to undue influence in terms of Section - 123 of the Act, 1951. But, in the present case, there is no suppression of any fact including assets, both movable and immovable and liabilities, criminal antecedents, educational qualifications etc., of herself and her spouse by the returned candidate. 51
KL,J E.P. No.10 of 2024 xxxvi) It is also apt to note that Mr. J. Ramachandra Rao, learned senior counsel appearing for respondent No.1 - returned candidate, would contend that there is suppression on the part of the election petitioner in the affidavit filed in Form 26 (Ex.R1). He has suppressed with regard to subsisting Government Contract. In view of the said submission, it is relevant to note that during cross-examination, the election petitioner (PW.1) categorically admitted that "it is true that there is no mention in my form 26 about my availment of Government Accommodation while in service and whether any dues to the Government by me and the relevant column is kept blank."
xxxvii) The election petitioner is seeking a consequential relief to declare him as returned candidate from the subject constituency on setting aside the election of respondent No.1 - returned candidate. If the non-mentioning of four years income tax returns in Ex.A4 - affidavit in Form 26 prior to 2022-23 by respondent No.1 amounts to non-disclosure which is of substantial in nature, the aforesaid non-disclosure by the election petitioner would also amount to non-disclosure of substantial in nature. Therefore, on the said ground also, the election petitioner is not 52 KL,J E.P. No.10 of 2024 entitled to any relief, much less the relief sought in the present election petition.
xxxviii) With regard to contention of respondent No.1 - returned candidate that the election petitioner did not disclose cause of action in the election petition and, therefore, it has to be dismissed. As discussed above, it is the specific contention of the election petitioner that respondent No.1 - returned candidate did not mention four years of her income tax returns prior to 2022-23 in Ex.A4 - affidavit in Form 26 and it amounts to suppression, renders the election of respondent No.1 as void. The election petitioner has pleaded and to prove the same, he has examined himself as PW.1 and filed Exs.A1 to A8. In the light of the same, the aforesaid contention of respondent No.1 is unsustainable.
xxxix) In Azhar Hussain v. Rajiv Gandhi 26, the Apex Court observed that the sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Litigation has to be end at the earliest and the concerned litigants are relieved of the psychological burden of the litigation so as to be free to follow their ordinary pursuits and discharge their duties. So long as the sword of Damocles of the 26 . 1986 SCC (Supp.) 315 53 KL,J E.P. No.10 of 2024 election petition remains hanging an elected member of the Legislature would not feel sufficiently free to devote his whole-hearted attention to matters of public importance which clamour for his attention in his capacity as an elected representative of the concerned constituency. The time and attention demanded by his elected office will have to be diverted to matters pertaining to the contest of the election petition. Instead of being engaged in a campaign to relieve the distress of people in general and of the residents of his constituency who voted him into office, and instead of resolving their problems, he would be engaged in a campaign to establish that he has in fact been duly elected. Instead of discharging his functions as the elected representative of the people, he will be engaged in a struggle to establish that he is indeed such a representative, notwithstanding the fact that he has in fact won the verdict and confidence of the electorate at polls. He will not only have to win the vote of the people and mandate but also win the vote of the Court in a long drawn-out litigation before he can whole-heartedly engage himself in discharging the trust reposed in him by the electorate. Pendency of election petition would also act as a hindrance if he were entrusted with some public office in his elected capacity. He may even 54 KL,J E.P. No.10 of 2024 have occasions to deal with the representatives of foreign powers who may wonder whether he will eventually succeed and hesitate to deal with him. The fact that an election petition calling into question his election is pending may, in a given case, act as a psychological fetter and may not permit him to act with full freedom. Even if he is made of stern metal, the constraint introduced by the pendency of an election petition may have some impact on his sub-conscious mind without his ever being or becoming aware of it. Under the circumstances, there is greater reason why in a democratic set-up, in regard to a matter pertaining to an elected representative of the people which is likely to inhibit him in the discharge of his duties towards the Nation, the controversy is set at rest at the earliest, if the facts of the case and the law so warrant.
xl) In Jagan Nath v. Jaswant Singh 27, the Apex Court held that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. It is always to be borne in mind that though the election of a successful candidate is not to be lightly interfered with, one of the essentials of that law is also to safeguard the purity of the election 27 . AIR 1954 SC 210 55 KL,J E.P. No.10 of 2024 process and also to see that people do not get elected by flagrant breaches of that law or by corrupt practices.
xli) May be with the aforesaid intention, the Legislature was conscious in mentioning the timelines to dispose of election petition within six (06) months in Section - 86 (7) of the Act, 1951.
xlii) In view of the aforesaid discussion, the election petitioner failed to make out any ground to set aside the election of respondent No.1 - returned candidate. Therefore, all these issues are decided against the election petitioner.
10. CONCLUSION (ISSUE No.(xiv):
i) In the light of the aforesaid discussion, this election petition fails and the same is liable to be dismissed.
ii) The present Election Petition is accordingly dismissed. In the circumstances of the case, there shall be no order as to costs.
iii) Considering the timeline mentioned in Section - 86 (7) of the Act, 1951, Legislative intent and principle laid down by the Apex Court, this Court made an endeavour to dispose of the present election petition within the aforesaid timeline so that people would repose confidence on the System. In the present case, the election petition was filed on 56 KL,J E.P. No.10 of 2024 06.01.2024, and after conclusion of evidence, the matter was posted to 01.10.2024 for hearing of the election petition and it was adjourned to 14.10.2024 on which date, the matter was heard on behalf of the election petitioner and adjourned to 16.10.2024 to hear respondent No.1. On 16.10.2024 both senior counsel made their submissions. Therefore, this Court decided the present election petition today, within nine (09) months 20 days (as on 23.10.2024). Thus, this Court places its appreciation for the assistance rendered by Mr. C. Raghu, learned senior counsel assisted by Mr. R. Giri Kumar, learned counsel appearing on behalf of the election petitioner and Mr. J. Ramachandra Rao, learned Senior Counsel assisted by Mr. S. Santosh Kumar, learned counsel appearing on behalf of respondent No.1, on record.
As a sequel thereto, miscellaneous petitions, if any, pending in this Election Petition, stands closed.
_________________ K. LAKSHMAN, J 25th October, 2024 Mgr APPENDIX OF EVIDENCE WITNESSES EXAMINED For Petitioner:
PW.1: Mr. Ajmera Shyam (Election Petitioner) For Respondents:
RW.1: Mrs. Kova Laxmi (Returned Candidate & R-1) 57 KL,J E.P. No.10 of 2024 DOCUMENTS MARKED ON BEHALF OF ELECTION PETITIONER Exhibit Date Description of document Ex.A1 30.12.2023 Copy of declaration made by the Returning Officer.
Ex.A2 03.12.2023 Copy of Form No.20 of 005 - Asifabad Assembly Constituency (ST) published by the Returning Officer.
Ex.A3 -- Copy of Form 2-B.
Ex.A4 09.11.2023 Copy of Form No.26 filed by respondent No.1.
Ex.A5 2018 Copy of Form No.26 filed along with nomination
papers by respondent No.1.
Ex.A6 -- Copy of Nomination in Form-IV.
Ex.A7 24.06.2015 Copy of G.O.Ms.No.53 enhancing the
honorarium of Chairperson of Zilla Parishad, ZPTC, MPTC and Sarpanches.
Ex.A8 30.03.2021 Copy of G.O.Ms.No.28, Law Department.
RESPONDENT No.1 Exhibit Date Description of document Ex.R1 -- Form No.26 of the Election Petitioner Ex.R2 20.06.2024 Non-drawl Certificate issued by Legislature
(Pensions), Secretariat of Telangana Legislature issued in favour of respondent No.1.
_________________ K. LAKSHMAN, J 25th October, 2024 Note: L.R. copy be marked.
(B/O.) Mgr