Karnataka High Court
Shri.Ravi Shivappa Padasalagi vs Mahesh Iranagouda Kumatalli on 23 November, 2022
E.P.No.100001/2020
1
IN THE HIGH COURT OF KARNATAKA AT DHARWAD
DATED THIS THE 23RD DAY OF NOVEMBER 2022
BEFORE R
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
ELECTION PETITION NO.100001/2020
BETWEEN:
SRI RAVI SHIVAPPA PADASALAGI @ SAVADI
S/O SHIVAPPA PADASALAGI,
AGED ABOUT 42 YEARS,
OCC: SOFTWARE ENGINEER/SOCIAL WORKER,
INDEPENDENT CANDIDATE FOR ATHANI
LEGISLATIVE ASSEMBLY CONSTITUENCY,
R/O NO.196, 5TH MAIN, 2ND CROSS,
M.S.PALYA ROAD, SINGAPURA PARADISE,
VIDYARANYAPURA POST,
BENGALURU 560 097
...PETITIONER
(BY SRI SHIVARAJ C BELLAKKI & SRI S.G.CHAITANYA, ADVS)
AND:
1. MAHESH
S/O IRANAGOUDA KUMTALLI,
AGED ABOUT 58 YEARS,
Occ: BUSINESS AND FARMER,
BHARATIYA JANATA PARTY
CANDIDATE FOR ATHANI LEGISLATIVE
ASSEMBLY CONSTITUENCY,
R/O NO.4362, VIKRAMPURA, ATHANI,
TQ. ATHANI, DIST. BELGAVI 591 304.
2. SRI GAJANAN
S/O BHALACHANDRA MANGASULI,
AGED ABOUT 50 YEARS,
OCC: AGRICULTURE AND BUSINESS,
INDIAN NATIONAL CONGRESS PARTY
E.P.No.100001/2020
2
CANDIDATE FOR ATHANI,
LEGISLATIVE ASSEMBLY CONSTITUENCY,
R/O HOUSE NO.3413, MANGASULI GALLI,
NEAR SBI, ATHANI, TQ. ATHANI,
DIST. BELAGAVI 591 304
3. Dr.NAGANATH V YADGIR,
S/O VENKATRAO,
AGED ABOUT 36 YEARS,
OCC: DOCTOR,
UTTAM PRAJAKEEYA PARTY CANDIDATE
FOR ATHANI, LEGISLATIVE ASSEMBLY
CONSTITUENCY, R/O H NO.10-816,
MELINKERI BRAHMAPUR,
KALABURAGI 585 103.
4. VINAYAKA
S/O PARAYYA MATHAPATI,
AGED ABOUT 27 YEARS,
OCC; AGRICULTURAL LABOUR,
KARNATAKA JANTHA PAKSHA CANDIDATE
FOR ATHANI, STATE LEGISLATIVE
ASSEMBLY CONSTITUENCY,
R/O AT POST SAPTASAGAR,
TQ: ATHANI, DIST. BELAGAVI 591 304.
5. IMRAN
S/O MUKTAR AHMED PATEL
@ MUKTAR PATEL ,
AGED ABOUT 32 YEARS,
OCC; BUSINESS,
INDEPENDENT CANDIDATE FOR
ATHANI, STATE LEGISLATIVE
ASSEMBLY CONSTITUENCY,
R/O H.NO.3005/A,
HIPPARAGI GALLI, ATHANI,
TQ; ATHANI, DIST BELAGAVI 591 304.
6. RAJU
S/O PARASHURAM DAWARI,
AGED ABOUT 44 YEARS,
OCC: PRIEST,
INDEPENDENT CANDIDATE FOR
ATHANI, STATE LEGISLATIVE
ASSEMBLY CONSTITUENCY,
R/O AT POST DAVARI GALLI,
E.P.No.100001/2020
3
ATHANI, TQ: ATHANI,
DIST. BELAGAVI 591 304
7. SHRISHAIL,
S/O TUKKAPPA HALLADAMAL
@ HALLADAMALLI,
AGED ABOUT 40 YEARS,
OCC: AGRICULTURE & BUSINESS,
INDEPENDENT CANDIDATE FOR
ATHANI, STATE LEGISLATIVE
ASSEMBLY CONSTITUENCY,
R/O GAVISIDDANA MADDI,
ATHANI, TQ: ATHANI,
DIST. BELAGAVI 591 304
...RESPONDENTS
(BY SRI G.BALAKRISHNA SHASTRY, ADV. FOR R.1
R.2 TO R7 ARE SERVED AND UNREPRESENTED)
THIS ELECTION PETITION IS FILED UNDER SECTION 80-
A, 81, 84, 100(1)(a) and (d)(i) and (iv) and SECTION 101 OF
REPRESENTATION OF PEOPLE ACT, 1951 PRAYING TO SET
ASIDE THE ELECTION OF RESPONDENT NO.1 AS RETURNED
CANDIDATE TO THE CONSTITUENCY NO.3, ATHANI
CONSTITUENCY OF KARNATAKA LEGISLATIVE ASSEMBLY IN
THE ASSEMBLY ELECTION HELD ON 05.12.2019, DECLARED
VIDE FORM NO.21E DATED 09.12.2019 AS AT ANNEXURE-G.
THIS ELECTION PETITION PERTAINING TO DHARWAD
BENCH HAVING BEEN HEARD AND RESERVED ON 19.09.2022
COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT
SITTING AT KALABURAGI BENCH THROUGH VIDEO
CONFERENCE, DELIVERED THE FOLLOWING:
E.P.No.100001/2020
4
JUDGMENT
This petition is filed under Sections 80-A, 81, 84, 100(1)(a), 100(1)(d)(i), (iv) and Section 101 of the Representation of People Act, 1951 ('the Act' for short) to declare the election of first respondent to Constituency No.03, Athani Constituency of Karnataka Legislative Assembly as void and to declare the petitioner as duly elected candidate for the said seat.
2. The case of the petitioner in brief is as follows:
Since the seat of Member of Legislative Assembly ('MLA' for short) to Constituency No.3 of Athani Constituency fell vacant due to resignation of the elected representative i.e., first respondent, the Election Commission of India ('ECI' for short) issued notification dated 23.09.2019 for holding bye-election to the said constituency. As per the said notification the last date for filing nomination was 30.09.2019. As per Section 30 of the Act the last date for making the nomination shall be fixed on the 7th day from the date of publication of the notification. But the State Election Commission in violation of Section 30 of the Act issued a fresh notification dated E.P.No.100001/2020 5 27.09.2019 rescheduling dates of submission of nomination papers, scrutiny of nominations, withdrawal of nominations, date of holding polls and the date of completion of the election. Such act of the ECI is contrary to Section 30 of the Act and without authority of law. As on 30.09.2019 due to the disqualification order passed by the Speaker of the Karnataka Legislative Assembly on the ground of defection the first respondent was not eligible to submit his nomination to contest the election under notification dated 23.09.2019. The revised notification allowed him to file the nomination. As per the rescheduled calendar of events under the second notification the elections were held on 05.12.2019, counting was done on 09.12.2019 and result was declared on 09.12.2019. The first respondent was declared as the duly elected candidate. The first respondent had not declared the assets owned by his spouse and heirs in his nomination papers as required in column No.B(1) of the affidavit in Form No.26. Therefore, reception of his nomination was improper. Therefore, the election of first respondent was materially affected by the issuance of E.P.No.100001/2020 6 second notification and improper reception of the nomination of the first respondent. Hence the same is liable to be set aside. If the nominations submitted as per the first notification and if the votes secured by the candidates under the said nomination up to the cut off period of 30.09.2019 was taken into consideration, the petitioner was entitled to be declared as returned candidate.
3. Out of respondent Nos.1 to 7, only the first respondent contested the petition. His defence in brief is as follows:
The petition is not maintainable and liable to be dismissed in limine. There is no cause of action for the petitioner and the petition does not disclose the cause of action. The petition is defective one for not depositing the costs and not disclosing cause of action. The petition is bad for non-joinder of ECI as party to the petition. Section 30 does not bar the ECI from rescheduling the election or issuing fresh notification. Section 153 of the Act empowers the Election Commission to reschedule the elections, if there is sufficient cause for the same. The E.P.No.100001/2020 7 Speaker of the assembly had disqualified the first respondent and some other MLAs from the membership of the legislative assembly for the rest of their tenure of such membership. Therefore, the first respondent and others challenged the said order before the Hon'ble Supreme Court in W.P.(Civil) No.992/2019. The Hon'ble Supreme Court during hearing of the said matter on 26.09.2019 orally observed that it would be desirable for the ECI to defer to a subsequent date in respect of the vacant seats of Karnataka Legislative assembly to enable the Supreme Court to pass a final order in the matter. Accordingly, the ECI stated that they would defer the bye-elections notified under the notification dated 27.09.2019. Submission of incomplete nomination in Form No.26 by him was denied.
It was further denied that rescheduling of the election materially affected the election of the first respondent. The required particulars were disclosed and the allegations with regard to the same were denied. The petitioner has not challenged the notification dated 27.09.2019. Without challenging the said notification, he is estopped from E.P.No.100001/2020 8 challenging the election. Thus, he sought dismissal of the election petition.
4. On the basis of such pleadings, the following issues and additional issue are framed:
ISSUES
i) Does the petitioner proved that the notification of the Election Commission dated 27.09.2019 extending the date for filing the nomination for the bye-election of 03 Athani Constituency of the Karnataka State Legislative Assembly up to 11.11.2019 is contrary to the provisions of the Representation of the People Act, 1951 and the Constitution of India?
ii) Does the petitioner prove that first respondent did not furnish in Form No.26 filed along with nomination papers, the particulars of assets of his spouse and family members?
iii) Whether the petition is bad for non- joinder of necessary parties?
iv) Whether the petition is bad for non- compliance of Section 86(1) and Section 83 of the Representation of the People Act?
E.P.No.100001/20209
v) Whether the petition is hit by the
principle of estoppel since the petitioner
submitted his nomination without challenging the notification dated 27.09.2019?
vi) Whether the petitioner proves that the election of first respondent was materially affected by the improper reception of the nomination of first respondent?
vii) Whether the election of first respondent is liable to be set aside ?
viii) Whether the petitioner is entitled for declaration that he is the returned candidate ?
ix) What order or decree ?
ADDL. ISSUE
Whether first respondent proves that there was sufficient cause for extending the time under notification dated 27.09.2019 for conducting the elections ?
5. Issue No.3 with regard to petition being bad for non-joinder of necessary parties was heard and by order dated 22.12.2021, the preliminary issue was answered in favour of the petitioner.
E.P.No.100001/202010
6. In support of his case, the petitioner got examined himself as PW.1 and the Returning Officer as PW.2. On his behalf Exs.P1 to P22 were marked. The first respondent was examined as RW.1 and on his behalf Exs.R1 to R10 were marked.
On completion of the evidence, both the parties were heard.
7. Sri Shivaraj C. Bellakki and Sri Chaitanya S.G, learned counsel for the petitioner reiterating the grounds of the petition submits that the sole contention of the first respondent is that the Hon'ble Supreme Court had orally passed an order to defer the election, that was the sufficient cause for rescheduling the elections by issuing second notification. The said contention was not proved by adducing any tangible evidence. Ex.P4(a) clearly shows that the first respondent has not declared the assets of his spouse. Having regard to the same, the Returning Officer should have rejected his nomination paper. As on the date fixed in the first notification, the first respondent was disqualified to contest the election. Only because of the rescheduling of the elections, he gained eligibility to E.P.No.100001/2020 11 contest the elections. On that count also, the election on the revised date was materially affected.
8. In support of his submissions, he relies on the following judgments:
1. Michael B Fernandes Vs. C.K.Jaffar Sharief and Ors.1
2. Dr.Kanthi Rajashekar Kidiyappa Vs. P.H.Poojar and Ors.2
3. Jyoti Basu and Ors. Vs. Debi Ghosal and Ors.3
4. Mohinder Singh Gill and Anr. Vs. The Chief Election Commissioner New Delhi and Ors.4
5. Kishansingh Tomar Vs. Municipal Corporation of the city of Ahmedabad and Ors.5
6. N.P.Ponnuswamy Vs. The Returning Officer, Namakhal Constituency, Namakkal Salem Dist. And Ors.6
7. State of Maharashtra Vs. Ramdas Shrinivas Nayak and anr.7
9. Reiterating the defence in the statement of objections of first respondent and the other material on record, Sri G.Balakrishna Shastry, learned counsel for first respondent submits that Section 153 of the Act empowered the election commission to reschedule the election, if it finds sufficient cause. The evidence on 1 AIR 2002 SC 1041 2 2000 SCC Online Kar 264 3 AIR 1982 SC 983 4 (1978) 1 SCC 405 5 (2006) 8 SCC 352 6 AIR 1952 SC 64 7 AIR 1982 SC 1249 E.P.No.100001/2020 12 record shows that the Hon'ble Supreme Court on 26.09.2019 had made oral observations requiring the Election Commission to defer the bye-election of Karnataka Legislative assembly. That was the sufficient cause for the Election Commission to reschedule the election. Some other persons challenged the said notification in writ petition on the same grounds. The Hon'ble Supreme Court stayed the proceedings in Writ Petition (Civil) No.992/2019 accepting the contention that notification was issued based on the oral observation of the Supreme Court to defer the election. Therefore, there is no merit in the contention that the election was materially affected. The nomination submitted by the first respondent was in order and considering that, the Returning Officer accepted the same. At any rate there was no material to show that the alleged omission, if any, materially affected the election. The petitioner is in the habit of filing such petitions. The election petition lacks bonafides. Hence he sought dismissal of the same.
10. In support of his submissions, he relies on the following judgments:
E.P.No.100001/202013
1. Shrimanth Balasaheb Patil Vs. Hon'ble Speaker, 8 Karnataka Legislative Assembly and Ors.
2. Sayed Ahmed Vs. Brijendra Nath Pathak and Ors.9
3. Shri.Ravi Shivappa Padasalagi Vs. Sri.Paravatagouda10
4. Shri.Ravi Shivappa Padasalagi @ Savadi Vs. Iranna Kadadi 11
11. Both side submitted written synopsis of their arguments. On hearing both side the findings of the Court on the above issues are as follows:
Issue No.i : In the Negative
Issue No.ii : In the Negative
Issue No.iii : In the Negative
Issue No.iv : In the Negative
Issue No.v : In the Negative
Issue No.vi : In the Negative
Issue No.vii : In the Negative
Issue No.viii : In the Negative
Addl. Issue : In the Affirmative
Issue No.ix : As per final order for the following REASONS
12. On Issue No.1 and Additional issue:
Since these two issues have bearing on each other, they are taken up together for consideration. The Election 8 AIR 2019 SC (Supp) 2380 9 AIR 1998 Madhya Pradesh 293 10 E.P.100001/2019 D.D.25.02.2021 (HC-Dharward Bench) 11 E.P.No.1/2020 D.D.18.02.2021 E.P.No.100001/2020 14 Commission issued first notification Ex.P18 dated 23.09.2019 calling upon 03-Athani Constituency to elect the Member of Legislative Assembly of the State. The calendar of events appointed under Ex.P18 were as follows:
" a) the 30th September 2019 (Monday), as the last date for making nominations;
b) the 1st October, 2019 (Tuesday), as the date for the scrutiny of nominations;
c) the 3rd October, 2019 (Thursday), as the last date for the withdrawal of candidatures;
d) the 21st October, 2019 (Monday), as the date on which a poll shall, if necessary, be taken; and
e) the 27th October, 2019 (Sunday), as the date before which the election shall be completed."
13. Thereafter the ECI issued another notification as per Ex.P19 rescheduling the calendar of events of the election fixed under Ex.P18. The revised calendar of events were as follows:
" a) the 11th November 2019 (Monday), as the restarting date of making nominations;
b) the 18th November, 2019 (Monday), as the last date for making nominations;
c) the 19th November, 2019 (Tuesday), as the date for the scrutiny of nominations;E.P.No.100001/2020 15
d) the 21st November, 2019 (Thursday), as the last date for withdrawal of nominations;
e) the 5th December, 2019 (Thursday), as the date on which a polls shall, if necessary, be taken;
f) the 11th December, 2019 (Wednesday), as the date before which the elections shall be completed."
Ex.P19 was purportedly issued exercising the powers under Section 153 of Act.
14. The contention of the petitioner is that once the calendar of events are drawn under Section 30 of the Act, the same cannot be redrawn. He contends that therefore the second notification Ex.P19 was illegal and contrary to Section 30 of the Act. Section 30 of the Act reads as follows:
"30. Appointment of dates for nominations, etc.--As soon as the notification calling upon a constituency to elect a member or members is issued, the Election Commission shall, by notification in the Official Gazette, appoint --
(a) the last date for making nominations, which shall be the seventh day after the date of publication of the first-mentioned notification or, if that day is a public holiday, the next succeeding day which is not a public holiday;E.P.No.100001/2020 16
(b) the date for the scrutiny of nominations, which shall be the day immediately following the last date for making nominations or, if that day is a public holiday, the next succeeding day which is not a public holiday;
(c) the last date for the withdrawal of candidatures, which shall be the second day after the date for the scrutiny of nominations or, if that day is a public holiday, the next succeeding day which is not a public holiday;
(d) the date or dates on which a poll shall, if necessary, be taken, which or the first of which shall be a date not earlier than the fourteenth day after the last date for the withdrawal of candidatures; and
(e) the date before which the election shall be completed."
15. The reading of the above provision shows that Section 30 of the Act only prescribes intervals between the date of publication of the notification and the last date for making nominations (seventh day). It further prescribes intervals between the last date of nominations, the last date for scrutiny of the nominations, the last date for withdrawal of the candidatures (second day), the date of the poll and the date of withdrawal of candidatures E.P.No.100001/2020 17 (fourteenth day). The above sequence does not contain any provision barring the issuance of the second notification redrawing the calendar of events.
16. The provisions which deals with redrawing of the calendar of events or extension of time for completion of the election is Section 153 of the RP Act, which reads as follows:
"153. Extension of time for completion of election.--It shall be competent for the Election Commission for reasons which it considers sufficient, to extend the time for the completion of any election by making necessary amendments in the notification issued by it under section 30 or sub-section (1) of section 39."
(Emphasis Supplied)
17. The above provision shows that Election Commission is competent to extend the time for completion of any election by making necessary amendments in the notification issued by it under Section 30 or Section 39(1) of the Act. The only rider for extending time of the process of election is that there shall be sufficient cause for extending such time. In Section E.P.No.100001/2020 18 153 of the Act, notably the word 'shall' is employed which indicates that if there are sufficient reasons, the Commission has to exercise the power to extend the time for completion of election.
18. Further there should be sufficient reasons for such extension. Significantly, such sufficient reason is not the satisfaction of the other third party which shall be that of the election commission as the words used are 'Election Commission for reasons which it considers sufficient'. Therefore, such sufficient cause is as per the consideration of the Election Commission. Hence, there is no merit in the contention of the petitioner that Election Commission has no power at all to extend the time for completion of election.
19. Then the only question is whether there was sufficient reason for the ECI for extension of election time as contemplated under Section 153 of the Act. It is no doubt true that ECI is a Constitutional Body. Still the satisfaction of sufficient cause contemplated in Section 153 must be objective and bonafide. In the case at hand, E.P.No.100001/2020 19 according to the first respondent, the ECI extended the time by notification Ex.P.19 in view of the observations of the Hon'ble Supreme Court at interim stage in the case of Shrimanth Balasaheb Patil vs. Hon'ble Speaker, Karnataka Legislative Assembly and others12 to defer the bye-election notified by the ECI in respect of the vacant seats in Karnataka Legislative Assembly to a subsequent date so as to enable the Hon'ble Supreme Court to pass a final adjudication/order in the said matters. Therefore, the burden was on the first respondent to prove that the notification Ex.P19 was issued in view of the observations/order of the Hon'ble Supreme Court.
20. The ECI in the notification at Ex.P.19 quoting the order of Hon'ble Supreme Court dated 26.09.2019 invoked Section 153 of the R.P.Act claims to have amended / extended the notification Ex.P.18. There is no dispute that first respondent and some other members of the legislative assembly of the Karnataka State tendered their resignation to the post of Member of the Legislative 12 Writ Petition (civil) No.992/2019 E.P.No.100001/2020 20 Assembly in Karnataka. The Speaker of Karnataka Assembly had initiated disqualification proceedings against them. They challenged the same before the Hon'ble Supreme Court in W.P.(Civil) No.992/2019.
21. The petitioner himself has produced Ex.P.20 a copy of the order dated 26.09.2019 in the said case, which reads as follows:
"Arguments heard, which remained
inconclusive.
For further arguments, list the matters on Tuesday, the 22nd October 2019 for final disposal.
In the meantime, parties are directed to complete the pleadings latest by 15th October 2019."
22. Relying on Ex.P20 it was contended by the petitioner's counsel that there was no such oral order or observation of the Hon'ble Supreme Court to defer the elections. Therefore, it was contended that the justification given for extension of time under Ex.P19 cannot be accepted.
E.P.No.100001/202021
23. To prove that the ECI had sufficient reasons to extend the time of election, the first respondent tendered his evidence. Further he took summons to examine the Commissioner of Election Commission. However, he could not examine the Election Commissioner as the order summoning the Election Commissioner was challenged by the ECI and the same was set aside. That goes to show that he did all genuine efforts to prove the said justification by direct evidence. Therefore, he chose to lead other circumstantial evidence to show that though in Ex.P20 there is no written order directing the ECI to defer the elections, in fact there were such observations. To prove that he relied on Ex.R.4 and R.10.
24. Ex.R.4 is the order dated 23.10.2019 in W.P.(Civil) No.992/2019 and Ex.R.10 certified copy of the interim application filed by ECI in the said writ petition. There is no dispute that one Venkatesa Shetty and Dinesh Gundu Rao filed W.P.No.50205/2019 c/w 49956/2019 respectively against ECI before this Court seeking quashing of the notification Ex.P19 on the ground that the same is violative of Section 30 of the Act. They also E.P.No.100001/2020 22 sought interim stay of Ex.P19. In that scenario the ECI filed Ex.R10 IA No.162634/2019 before the Hon'ble Supreme Court in W.P.No.992/2019 though it was not a party to the said proceedings in W.P.No.50205/2019 c/w 49956/2019.
25. In the said application more particularly in Paras 3, 4 and 10, the ECI clearly stated that it has issued the second notification Ex.P19 in view of the oral observations of the Hon'ble Supreme Court dated 26.09.2019. It would be more beneficial to quote para 4 of the said application which reads as follows:
" 4. In view of the aforementioned oral observation of this Hon'ble Court, the counsel for the Election Commission of India, upon instructions, stated that the Election Commission of India would defer the bye-elections notified in respect of the vacant seats in the Karnataka Legislative Assembly to a subsequent date, so as to enable this Hon'ble Court to conclusively hear the above Writ Petitions and pass a final order therein. However, the same was not reflected in the aforementioned Order dated 26.09.2019 passed by this Hon'ble Court in W.P.(C) No.992/2019 (and other connected matters)."
(Emphasis supplied) E.P.No.100001/2020 23
26. In para 10 of the application the Election Commission made the same fact as the ground for seeking interim stay. The said application was supported by the affidavit of one Vijay Kumar Pandey, ECI. Ex.R.4 the order dated 23.10.2019 referred to the averments contained in the application, granted the stay of proceedings in W.P.No.50205/2019 c/w 49956/2019. The relevant portion of the order Ex.R4 reads as follows:
" Heard Mr.Rakesh Dwivedi, learned Senior Counsel appearing on behalf of the applicant - Election Commission of India and perused the averments contained in the above-mentioned application.
In view of the proceedings going on before this Court relating to the conduct of Bye-elections for the Karnataka Legislative Assembly vide Notification dated 27.09.2019, issued by the Election Commission of India, we think appropriate to stay the further proceedings in W.P.No.50205 of 2019 (Venkatesa Setty Vs. Election Commission of India & Ors.), pending adjudication before the High Court of Karnataka at Bengaluru."
(Emphasis supplied) The above order goes to show that accepting what was stated in Ex.R10 with reference to the oral observations of E.P.No.100001/2020 24 the Hon'ble Supreme Court in deferring the elections, the Hon'ble Supreme Court granted the interim stay.
27. In Illustration (e) of Section 114 of the Indian Evidence Act, 1872 there is a presumption that judicial and official acts have been regularly performed. That presumption stood substantiated by application Annexure-R.10 and the order of the Hon'ble Supreme Court at Annexure-R.4. The Hon'ble Supreme Court in para-7 of the judgment in case of State of Maharashtra Vs. Ramdas Srinivas Nayak & Anr13 has held as follows:
"So the judge's record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the judge, himself, but nowhere else."
28. In para-3 of the aforesaid judgment it was held that an enquiry cannot be launched as to what transpired in the High Court, as public policy bars and judicial decorum restrains from doing so. It was held that matters of judicial record are unquestionable and they are not open to doubt. The similar view was taken by the Hon'ble 13 AIR 1992 SC 1249 E.P.No.100001/2020 25 Supreme Court in the judgment in Bhagubai Dhanabhai Khalasi and & Anr. Vs. State of Gujrat and Ors.14 relied on by the learned counsel for the petitioner himself.
29. In the light of the aforesaid evidence and the judicial precedents, it can be held without any hesitation that first respondent has successfully proved that ECI had sufficient reasons to extend the time for election in question by issuing Ex.P19. The observations in para-8 of the judgment in Mohinder Sing Gill and Anr. Vs. The Chief Election Commissioner & Ors.15 and Chief Election Commissioner of India Vs. M.R. Vijayabhaskar & Ors.16 relied on by the learned counsel for the petitioner cannot be justifiably applied to the facts of the present case. Therefore Issue No.1 is answered in Negative and additional issue is answered in Affirmative. On issue Nos.2 and 6:
30. Since these two issues overlap on each other, they are taken up together for consideration. It is the 14 (2007) 4 SCC 241 15 (1978) 1 SCC 405 16 AIR 2021 SC 2238 E.P.No.100001/2020 26 contention of the petitioner that the first respondent in the affidavit filed in Form No.26 had not declared the particulars of assets of his spouse and his Hindu Undivided Family. He contends that the Returning Officer should not have accepted the said nomination of the first respondent. According to him, such acceptance of the nomination papers of first respondent has materially affected the election of first respondent warranting the setting aside of his election.
31. The other ground is that as on the date of the notification Ex.P18, the first respondent was not competent to submit the nomination papers due to his disqualification. It is contended that only because of extension of time under Ex.P19 by virtue of order of the Hon'ble Supreme Court in W.P.(Civil) No.992/2019, first respondent became eligible to submit his nomination. Therefore the second notification Ex.P19 materially affected the election of first respondent.
32. Ex.P.4 is the nomination paper of first respondent with Form No.26. The same is said to be E.P.No.100001/2020 27 submitted on 14.11.2019. According to first respondent he submitted another Form No.26 as per Ex.R.2 on 18.11.2019. It is suggested to R.W.1 that in Ex.P.4 and Ex.R.2, the first respondent has deleted the column meant for the declaration of the particulars of Hindu Undivided Family.
33. It is material to note that prior to 26.02.2019, the form prescribed under the Rules did not contain the column HUF (Hindu Undivided Family). The same was introduced by way of amendment SO1023(E) dated 26.02.2019 with effect from 26.02.2019. Though first respondent did not reveal in the column specified for HUF particulars introduced by way of amendment dated 26.02.2019, he has declared the assets of Hindu Undivided Family and his share in that. So far as the spouse, he has declared the wife's assets and value in column meant for the spouse.
34. It is true that he has not mentioned in Form No.26 the year of completion of his education, but the petitioner himself does not dispute that first respondent is E.P.No.100001/2020 28 the Bachelor of Engineering graduate in civil. It is not whispered in the petition or in the evidence how the above said omissions have materially affected the election of 1st respondent.
35. Assuming that non-mentioning of the aforesaid particulars in the specific column or non-mentioning of the year of completion of the education amount to irregularity, the question is whether the returning officer could reject the nomination papers on such ground.
36. Section 33 deals with the presentation of the nomination papers and requirement of filing nomination. Section 33A deals with the mandatory requirement of the candidate furnishing information with regard to his criminal antecedents. Section 34 states that unless the candidate deposits the prescribed amount, he shall not be deemed to be duly nominated. Section 35 requires the Returning Officer to inform the candidates about the date, time and place of scrutiny of the nominations and affix the nomination papers in some conspicuous place of his office. E.P.No.100001/2020 29 Section 36 deals with scrutiny of nomination and power of the Returning Officer to reject the nominations.
37. Sections 36 (1) to (4) which are relevant for the purpose of this case reads as follows:
"36. Scrutiny of nominations.--(1) On the date fixed for the scrutiny of nominations under section 30, the candidates, their election agents, one proposer 3 of each candidate, and one other person duly authorized in writing by each candidate, but no other person, may attend at such time and place as the returning officer may appoint; and the returning officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in section 33.
(2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds:--
(a) [that on the date fixed for the scrutiny of nominations the candidate] either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely:--E.P.No.100001/2020 30
Articles 84, 102, 173 and 191, [Part II of this Act, and sections 4 and 14 of the Government of Union Territories Act, 1963 (20 of 1963); or
(b) that there has been a failure to comply with any of the provisions of section 33 or section 34 ; or
(c) that the signature of the candidate or the proposer on the nomination paper is not genuine.
(3) Nothing contained in 10 clause (b) or clause
(c)] of sub-section (2) shall be deemed to authorize the [rejection] of the nomination of any candidate on the ground of any irregularity in respect of a nomination paper, if the candidate has been duly nominated by means of another nomination paper in respect of which no irregularity has been committed.
(4) The returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character."
38. The perusal of Section 36 (2) shows that in cases mentioned in Clause -(a) to (c), the Returning Officer has the discretion to reject the nomination either on objections of any candidate or on his own motion. It is not the case of the petitioner that the nomination of first respondent was hit by clause (a) or (c). Since he claims E.P.No.100001/2020 31 that in Form No.26 certain particulars were not declared i.e., covered under Section 33(1) of the Act.
39. Section 33(1) of the Act reads as follows:
"33. Presentation of nomination paper and requirements for a valid nomination. --(1) On or before the date appointed under clause (a) of section 30 each candidate shall, either in person or by his proposer, between the hours of eleven o'clock in the forenoon and three o'clock in the afternoon deliver to the returning officer at the place specified in this behalf in the notice issued under section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer:
Provided that a candidate not set up by a recognised political party, shall not be deemed to be duly nominated for election form a constituency unless the nomination paper is subscribed by ten proposers being electors of the constituency:
Provided further that no nomination paper shall be delivered to the returning officer on a day which is a public holiday:
Provided also that in the case of a local authorities' constituency, graduates' constituency or teachers' constituency, the reference to "an elector of the constituency as proposer" shall be construed as a reference to ten per cent. of the E.P.No.100001/2020 32 electors of the constituency or ten such electors, whichever is less, as proposers."
40. As already pointed out, though the first respondent declared his Hindu Undivided Family's assets and spouse's property details, according to the petitioner that was not in the prescribed format. Section 36(4) is the complete answer to the question whether such defect entails the rejection of the nomination. Section 36(4) as noted above clearly states that Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.
41. It is also to be noted that if the petitioner found such defect to be of substantial character, he could have objected the nomination on that ground as required under Section 33 of the Act. It is not his case that the Returning Officer had not notified the nomination papers of first respondent as required under Section 33 of the Act. Had he objected the nomination on such ground, first respondent would have got an opportunity to explain the same or rectify the alleged defect. Such conduct of the E.P.No.100001/2020 33 petitioner goes to show that he himself did not find such defect to be substantial in nature.
42. Even in the evidence the petitioner does not claim that the first respondent owns substantial properties in the name of his wife and HUF and fraudulently he has not disclosed them in Form No.26. Under the circumstances and in view of Section 36(4) of the Act, the returning officer was barred from rejecting the nomination of first respondent even assuming for the argument sake that some particulars were missing in that.
43. Further, mere improper acceptance of the nomination itself does not warrant the annulment of the election of the returned candidate. Section 100(1)(d) requires the petitioner to prove that the improper acceptance of nomination of the returned candidate has materially affected the election. Admittedly, first respondent secured 99203 votes. Respondent No.2/his next close competitor from Indian National Congress Party secured 59214 votes. Thus, he won the election by lead gap of 39989 votes compared to his next close E.P.No.100001/2020 34 competitor. The petitioner secured just 317 votes. Absolutely no evidence was adduced to demonstrate that the alleged omissions in Form No.26 and consequent acceptance of his nomination misled his 99203 voters in choosing him. In the absence of such evidence, in a democratic set up the choice of such majority number of voters cannot be overturned merely on the allegations of the petitioner.
44. Had first respondent omitted to disclose any information as contemplated under Section 33(A) (criminal antecedents) that could have been considered as a defect of substantial in nature. It is not even the case of the petitioner that the first respondent had any such antecedents and suppressed the same. Therefore there is no merit in the contention of the petitioner that the nomination of the first respondent was improperly accepted and that materially affected the election. Therefore the judgments in People's Union for Civil Liberties ( PUCL) and Ors. Vs. Union of India ( UOI) E.P.No.100001/2020 35 & Ors.17 and Kisan Shankar Kathore Vs. Arun Dattatray Sawant and Ors.18 relied on by the learned counsel for the petitioner are not applicable.
45. The Hon'ble Supreme Court in paras-14 and 21 of the judgment in Tek Chand Vs. Dile Ram19 held as follows:
"14. In an election petition where an election of a returned candidate is impeached under Section 100(1)(d)(i) of the RPA, it is not enough only to establish that the nomination of a candidate was improperly accepted. In addition, it has to be further established that such wrong acceptance of nomination paper has materially affected the result of the election insofar it concerned the returned candidate. In this view, in this case, having regard to facts and contentions, we think it is appropriate to take up the second point set forth above for consideration first."
* * *
21. This Court in Shiv Charan
Singh v. Chandra Bhan Singh [(1988) 2 SCC 12] after referring to Vashist Narain case [AIR 17 (2003) 4 SCC 399 18 AIR 2014 SC 2069 19 AIR 2001 SC 905 E.P.No.100001/2020 36 1954 SC 513 : (1955) 1 SCR 509] and Chhedi Ram v. Jhilmit Ram [(1984) 2 SCC 281] dealing with an election petition filed on the ground under Section 100(1)(d)(i) itself, has clearly stated that the burden of strict proof is on the election petitioner; it is not permissible to act on conjectures and surmises; mere fact that number of votes polled by a candidate, whose nomination was improperly accepted, was greater than the margin of votes polled by the returned candidate and the candidate securing the next highest number of votes not by itself was conclusive proof of the material effect on the election of the returned candidate......"
***
11. Indisputably, the election petitioners had failed to discharge the burden of proving the fact that the result of election of the appellant had been materially affected by reason of improper acceptance of the nomination paper of Kanhaiya Lal. In the absence of any positive evidence produced by the election petitioners, it was not open to the High Court to record findings that the result of the election was materially affected. The High Court's findings relating to the material effect on the result of the election are based on conjectures and surmises and not on any evidence. The legislature has, E.P.No.100001/2020 37 as noted earlier, placed a difficult burden on the election petitioner to prove that the result of the election was materially affected by reason of improper acceptance of nomination paper of a candidate (other than the returned candidate) and if such burden is not discharged the election of the returned candidate must be allowed to stand as held by this Court in Vashist Narain Sharma [AIR 1954 SC 513 :
(1955) 1 SCR 509] and in Paokai
Haokip case [Paokai Haokip
v. Rishang, AIR 1969 SC 663 : (1969)
1 SCR 637] . .............."
(Emphasis supplied)
Further in our country as the things stand, all voters do not belong to or are affiliated to one or the other political party. Large majority of them may be neutral or independent or not committed. In this case, Nikka Ram contested the election as an independent candidate, obviously, on a symbol other than those allotted to recognised political parties. Hence it cannot be said that all 2287 votes secured by Nikka Ram were from the common vote bank of BJP. May be, many out of those voters did not belong to any political party."
E.P.No.100001/202038
46. The Hon'ble Supreme Court in para-24 of the judgment in Kalyan Kumar Gogoi Vs. Ashutosh Agnihotri and another20 relied on by the learned for the petitioner himself regarding burden of the proof on the petitioner held as follows :
"24. It is well to remember that this Court has laid down in several reported decisions that the election of a returned candidate should not normally be set aside unless there are cogent and convincing reasons. The success of a winning candidate at an election cannot 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. That is why the scheme of Section 100 of the Act, especially clause (d) of sub-Section (1) thereof clearly prescribes that in spite of the availability of grounds contemplated by sub-clauses
(i) to (iv) of clause (d), the election of a returned candidate shall not be voided unless and until it is proved that the result of the election insofar as it concerns a returned candidate is materially affected. The volume of opinion expressed in judicial pronouncements, preponderates in favour of the view that the burden of proving that the votes not cast would have been distributed in such a manner between the contesting candidates as 20 (2011) 2 SCC 532 E.P.No.100001/2020 39 would have brought about the defeat of the returned candidate lies upon one who objects to the validity of the election. Therefore, the standard of proof to be adopted, while judging the question whether the result of the election insofar as it concerns a returned candidate is materially affected, would be proof beyond reasonable doubt or beyond pale of doubt and not the test of proof as suggested by the learned counsel for the appellant." (Emphasis supplied)
47. Sofar as the eligibility of first respondent to file nomination papers on the last date fixed under the first notification Ex.P18 dated 23.09.2019, it is already held that the time was extended to file the nomination paper under the second notification for valid reasons. By the time first respondent submitted his nomination during such extended time, the Hon'ble Supreme Court by judgment dated 13.11.2019 in W.P.(C) No.992/2019 and connected matters reported in AIR Online 2019 SC 1448 had quashed the Speaker's order disqualifying him for rest of the tenure. It can also be said that such order of the Hon'ble Supreme Court dates back to the order of the Speaker. Therefore that contention of the petitioner is also E.P.No.100001/2020 40 unsustainable. Hence issue Nos.2 and 6 are answered in the Negative.
On issue No.4:
48. First respondent contended that the petition was bad for non-compliance of Section 86(1) and 83 of the Act. It was contended in the objection statement that the petition lacks particulars as required under Section 83 of the Act. Section 86(1) of the Act states that the High Court shall dismiss an election petition which does not comply with the provisions of Sections 81 or 82 or 117 of the Act.
49. Section 81 deals with presentation of the petitions within the time prescribed therein and furnishing the required number of copies to the respondents. Section 82 speaks of who are necessary parties to the petition. Section 117 deals with the requirement of deposit of Rs.2000/- as security for the costs of the petition. First respondent did not lead any evidence to show that the petition was not in accordance with Section 81 or 117 of the Act. The contention of ECI being the necessary party E.P.No.100001/2020 41 to the petition was rejected by this court by answering issue No.3 as preliminary issue.
50. As per the first respondent, the petitioner has not complied Section 83 of the Act. Section 83 of the Act reads as follows:
83. Contents of petition.-- (1) An election petition--
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) 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 the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:
[Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.] E.P.No.100001/2020 42 (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.]
51. The petitioner has not sought the setting aside the election on the ground of corrupt practice. Therefore Section 83(1)(b) does not apply. The perusal of the petition shows that it contains the concise statement of material fact on which the petitioner relies. The petition is verified and signed by the petitioner as required under Code of Civil Procedure for verification of the pleadings. It is material to note that touching the challenge of the first respondent with reference to Section 83 of the Act neither the petitioner was cross-examined nor the respondent led any evidence. Therefore it has to be held that petition does suffer any such infirmity. Hence, this issue was answered in the Negative.
On issue No.5:
52. It is contended that the petitioner has filed the nomination paper without challenging the notification dated 27.09.2019, therefore petition is hit by principle of E.P.No.100001/2020 43 estoppel. The principle of estoppel is enumerated in Section 115 of the Evidence Act which reads as follows:
"115 Estoppel. --When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing."
(Emphasis supplied)
53. The above provision shows that to invoke the principle of estoppel the petitioner should have permitted by his act or omission, the first respondent to act to his detriment and first respondent should have acted on such representation of the petitioner. It is not the case of the first respondent that had the petitioner challenged the notification dated 27.09.2019, he would not have submitted his nomination and by submission of nomination paper his interest is affected. Therefore the principle of estoppel cannot be claimed.
54. Section 80 of the Act bars calling in question an election except by an election petition presented under E.P.No.100001/2020 44 Section 100 of the Act. To buttress the arguments, learned counsel for the petitioner relied on the judgment of the Hon'ble Supreme Court in N.P. Ponnuswamy Vs. Returning Officer, Namakkal Constituency & Ors.21 and Mohinder Singh Gill's case. Therefore the said contention is not maintainable. Hence, issue No.5 is answered in the Negative.
Issue Nos.7 and 8:
55. The petitioner sought setting aside of the election of the first respondent and for declaration that he is the returned candidate on the ground that the election notification dated 27.09.2019 was illegal and that the nomination of first respondent was wrongfully accepted. During the course of the discussions of relevant issues, this court has rejected those contentions. In the light of the above discussions, the other judgments relied on both side require no reference. The petitioner is not entitled to the reliefs sought for. Hence, issue Nos.7 and 8 are answered in the Negative.
21
AIR 1952 SC 64 E.P.No.100001/2020 45 Issue No.9:
56. In view of the above findings, the election petition has to be rejected. During the course of the arguments, relying on the judgments of this court dated 25.02.2021 in Election Petition No.100001/2019 between Shri Ravi Shivappa Padasalagi Vs. Paravatagouda and Anr. and another judgment dated 18.02.2021 reported in 2021 (3) AKR 603 : AIR Online 2021 KAR 1225, it was contended that the petitioner abusing the process of the court is in the habit of filing frivolous election petitions. The above judgments show that the election petition of the petitioner in those cases were dismissed and one of them was dismissed with compensatory costs. The Hon'ble Supreme Court in Civil Appeal No.5002/2021 confirmed the judgment of this court between Ravi Shivappa Padasalagi @ Savadi Vs Iranna Kadadi and Anr. By such of his activities the petitioner has not only harassed the other side but abused the process of the court and diverted the resources of the court and the judicial time on undeserving litigations. E.P.No.100001/2020 46 Therefore the petition is liable to be dismissed with heavy costs. Hence the following:
ORDER The petition is dismissed with cost of Rs.1,00,000/-(Rupees One Lakh only) payable to the Karnataka State Legal Services Authority.
The petitioner shall deposit the said cost within 30 days from the date of this judgment failing which the same shall be recovered by the KSLSA in accordance with law.
Communicate the copy of this judgment to the Election Commission and Speaker of the Karnataka State Legislature as required under Section 103 of the Representative of the People Act, 1951.
Sd/-
JUDGE Akc/BL