Karnataka High Court
Laxmireddy S/O Siddappa Bhandari vs Nagaraj S/O Mallappa Myatri & Ors on 3 September, 2012
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 3RD DAY OF SEPTEMBER, 2012
BEFORE:
THE HON'BLE MR. JUSTICE A.S.PACHHAPURE
WRIT PETITION No.84106 OF 2012 (LB-ELE)
BETWEEN:
Laxmireddy,
S/o. Siddappa Bhandari,
Age: 30 years,
Occ: Member of Gram Panchayath,
R/o. Kalmala,
Tq. & Dist. Raichur-586 101. ... PETITIONER/S
(By Sri.Ashok S.Kinagi, Adv.)
AND:
1. Nagaraj,
S/o. Mallappa Myatri,
Age: 30 years,
Occ: Agriculture,
2. Chandrakala,
W/o. Nagaraj,
Age: 27 years,
Occ: household,
3. Chandappa,
S/o. Pyatappa,
Age: 32 years,
Occ; Agriculture,
4. Tayamma,
W/o. Revansiddappa,
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Age: 24 years,
Occ: Household,
5. Nallappa,
S/o. Tippanna Aragidda,
Age: 37 years,
Occ: Agriculture,
6. Nagappa,
S/o. Dodda Narasappa,
Age: 34 years,
Occ: Agriculture,
7. Nagesh Naik,
S/o. Chidanandappa,
Age: 32 years,
Occ: Agriculture,
8. Basavaraj,
S/o. Nagappa,
Age: 37 years,
Occ: Agriculture,
9. Basavaraj,
S/o. Mallappa,
Age: 42 years,
Occ: Agriculture,
10.Mahadevamma,
w/o. Basavarajappa,
age: 37 years,
Occ: Household,
11.K.Ranjitkumar,
S/o. Rajababu,
Age: 27 years,
Occ: Agriculture,
12.Ramanna Naik,
S/o. Earanna,
Age: 38 years,
Occ: Agriculture,
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13.Vasanthamma,
W/o. K.H.Hajappa,
Age: 38 years,
Occ: Household,
14.Shambulinga,
S/o. B. Basapa,
Age: 32 years,
Occ: Agriculture,
15.Sanna Banamma,
W/o. Srikant,
Age: 27 years,
Occ. Household,
16.Hanumantha Bevin,
S/o. Bhimanna Bevin,
Age: 47 years,
Occ: Agriculture,
17.Huligemma,
W/o. Kareppa,
Age: 42 years,
Occ: Household,
R1 to 17 are R/o. Kalmala village,
Tq. & Dist. Raichur-586 101.
18.The Election Officer,
Gam Panchayat,
Kalmala-IV Constituency,
Kalmala,
Tq. & Dist. Raichur-586 101. ... RESPONDENT/S
(By Sri. Ameet Kumar Deshpande, Adv. for R1.
Notice to R2 to 17 are dispensed with.
Sri. Shivakumar R.Tengli, AGA., for R18.)
***
This writ petition is filed under Articles 226 and 227 of
the Constitution of India praying to quash the impugned Order
dated 17.08.2012, passed in Election Petition No.10/2010 by
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the Prl. Civil Judge and JMFC., Raichur, as per Annexure-"G"
and consequently reject the election petition under reference.
This Writ Petition having been heard and reserved for
Orders, this day the Court pronounced the following:
ORDER
The petitioner has challenged the Order dated 17.08.2012 passed by the Prl. Civil Judge and JMFC-II, Raichur, allowing the election petition of the 1st respondent and declaring that the result announced by respondent No.18 is null and void and that the 1st respondent is duly elected to the 4th constituency of Kalmala village of Raichur village.
2. The facts relevant for the purpose of this petition in brief are as under:
The parties are referred to as per their rank before the trial Court for the sake of convenience.
The petitioner herein is the 1st respondent, whereas the 1st respondent herein is the petitioner and that respondent No.18-Election Officer, Gram Panchayat, Kamala is same as respondent No.18 before the trial Court. The 1st respondent was declared elected in the panchayat elections held on 5 WP 84106/12 08.05.2010. Respondent Nos.2 to 17 have also contested in the said election. Respondent No.18 is the Election Officer, Gram Panchayat.
Before the trial Court the petitioner [respondent No.1 herein] averred there is improper acceptance of the nomination and declaration of result is wholly illegal and erroneous. So also, he states that the 1st respondent [petitioner herein] gave a false information about his assets and liabilities and that respondent No.18 could have rejected his nomination.
The counting of the election was held on 17.05.2010 and the petitioner claims that counting was not properly done. Despite filing an application for recounting, the difference of votes between the petitioner and respondent No.1 is only 7 votes and it is due to improper and erroneous counting of the votes. He states that the names of the dead persons have been included in the voters' list and many persons gave two votes and in the names of the dead persons. Hence he submits that respondent No.18 be given an opportunity to recount the votes as the petitioner was defeated by only 7 votes and sought for setting aside the election.
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The 1st respondent filed objection statement denying the allegations made. It is his contention that the result declared by the Election officer is legal and valid and that whenever information was needed was given to the Election Officer at the time of his nomination. So also it is his contention that there was proper counting of the votes and he denied the further allegation that many persons in the name of the dead persons have voted in the election. Denying all other contentions, he has sought for dismissal of the petition.
The trial Court recorded the evidence, wherein the petitioner was examined as P.W.1 and in his evidence, documents Exs.P1 to 20 were got marked. The 1st respondent was examined as R.W.1 and two witnesses R.Ws.2 and 3. In their evidence, no documents were got marked. The trial Court after hearing learned counsel for the parties and on appreciation of the material on record has allowed the petition declaring that the declaration of the result of election of respondent No.1 by respondent No.18 is null and void and further declared that the petitioner is duly elected to the 4th Constituency of Kalmala village, Raichur. Aggrieved by the Order, the present petition has been filed.
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3. I have heard learned counsel for both the parties.
4. The point that arises for my consideration is:
Whether the Order of the trial Court setting aside the election and declaring respondent No.1 as elected is erroneous and illegal?
5. It is the contention of learned counsel for the petitioner herein that there is no pleading and the grounds accepted by the trial Court for setting aside the election and further the grounds stated in the order have not been proved. He submits that the grounds alleged under Section 19(b) of the Karnataka Panchayat Raj Act, 1993 [hereinafter called as "the Act of 1993" for short] has not materially affected the result of the election. Therefore, he claims that the Court below committed an error in setting aside the election of the petitioner. It is also his submission that the Election Officer has properly accepted the nomination and respondent No.1 has not proved any corrupt practice and therefore, he claims that the impugned Order is illegal.
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Per contra, it is the submission of learned counsel for respondent No.1 herein that he has proved the grounds under Section 19(b) of the Act of 1993 and the Election Officer having improperly accepted the nomination of the petitioner, the Court below is right in setting aside the election as void and in declaring the 1st respondent as elected. So also, he claims that the material placed on record would be sufficient to prove the ground under Section 19(b) of the Act of 1993.
Learned Government Pleader for respondent No.18 herein contends that the Court below has taken a right decision on the basis of the material placed on record.
6. As could be seen from the provisions of Section 19(b) of the Act of 1993, which reads thus;
"Grounds for declaring election to be void.-
(1) Subject to the provisions of sub-section (2) if the [Civil Judge (Junior Division)] is of opinion-
(a) xxxxx
(b) xxxxx
(c) xxxxx 9 WP 84106/12
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected,-
(i) by the improper acceptance of any
nomination; or
(ii) xxxxx
(iii) xxxxx
(iv) xxxxx
the Civil Judge (Junior Division) shall declare the election of the returned candidate to be void."
7. The trial Court has relied upon the aforesaid provision while holding that the petitioner has not furnished the material information relating to the assets and liabilities and further though criminal case was pending against him for the offence under Section 506 IPC and other offences, the petitioner did not disclose the pendency of the case and therefore, the Court below set aside the election.
8. At the outset, it is relevant to refer the grounds made out by the 1st respondent in his petition for setting aside the 10 WP 84106/12 election. In para 4, he states that respondent No.1 has given false information regarding his assets and liabilities and therefore respondent No.18 instead of rejecting the nomination has accepted the same illegally. In para 4(c) he states that respondent No.1 suppressed the material fact in answering the questions in nomination form regarding assets and involvement of criminal cases. Except this averment in the petition, the rest of the averment relates to illegality in counting the votes. He states that difference of votes between respondent No.1 and the petitioner is only 7 votes and that though 150 voters are dead, the 1st respondent brought about 150 persons, who voted in the name of the dead persons. Any how, the trial Court has held that the 1st respondent has not proved the ground relating to illegal counting or voting in the name of the dead persons. It has set aside the election solely on the grounds that the petitioner has not given material information with regard to his assets and liabilities and pending of a criminal case against him.
9. As could be seen from the provisions of Section 16 of the Act of 1993, the 1st respondent in his election petition has to make an averment i.e., a concise statement of material fact 11 WP 84106/12 on which he relies on. It is relevant to note that 1st respondent in his petition has not averred as to what information actually is not furnished by the 1st respondent and the details of the properties of which the 1st respondent has not informed the Election Officer. In the absence of the pleadings relating to these properties, a general and vague allegation that the 1st respondent has given false information relating to his assets and liabilities during the submission of the nomination papers is not sufficient. So also, the 1st respondent has not given the particulars of the criminal case including its number, the offence for which he is charged, the Court in which the case is pending and as to whether it was really pending on the date when the nomination was submitted by the 1st respondent. A vague averment in the petition that respondent No.1 is involved in a criminal case cannot be accepted.
10. The aforesaid two grounds are incorporated by the Election Commission in pursuance of the Order dated 28th June 2002 as directed by the Apex Court, under Article 324 of the Constitution. These grounds relates to the election to the parliament and to legislative assembly/legislative council of the State. No such direction has been given by the Apex Court and 12 WP 84106/12 no order has been passed by the Election Commission so far as the election to the local body are concerned. In Clause (iv) of the Order issued by the Election Commission, it provides that a wrong or incomplete information or suppression of any material information by any candidate in or from the affidavit made or so result in rejection of his nomination papers, where such wrong or incomplete information or suppression material information is considered by the returning officer to be a defect of substantial character, apart from inviting penal consequences under the Indian Penal Code. So, as could be seen from the aforesaid order, the Election Commission, if any incomplete information is given by the candidate, it shall be a ground for rejection of the nomination and if the suppression of the material information is of a substantial character, the candidate invites penal consequences. Anyhow, as could be seen from the aforesaid grounds in Clause (iv) of the Order reveal that the grounds stated by the petitioner can be used by the Election Officer either in rejecting the nomination or initiating a criminal complaint against the returned candidate, who has suppressed the material information. These two aforesaid grounds cannot be the grounds for setting aside the elections. The trial Court has relied upon the aforesaid Order of the Election Commission 13 WP 84106/12 and has held that the incomplete information is a ground to set aside the election. This approach of the trial Court is both erroneous and illegal.
11. Furthermore, while enacting the Act of 1993, care has been taken by the State to include the grounds for declaring the election to be void under Section 19 of the said Act. Clause (i) of Section 19(b) of the Act of 1993 has no relevance in a case where a candidate withholds or suppress material information. This Court in a decision reported in AIR 2004 Kar. 471 [Bashiruddin Halhipparaga Vs. Rajashekhar Basavaraj Patil and Ors.] has considered the instructions given by the Election Commission and held that the model code of conduct is for the guidance of the political parties and the candidates and the said guidance do not say what would be the consequence if any of the guidance has been violated by the political parties and the candidates. Further, it held that though such guidance was issued by the Election Commission of India, there is no corresponding amendment to Section 100 of the Representation of the People Act, 1950.
12. The Apex Court in Civil Appeal No.10728/2011, an unreported Judgment dated 01.02.2012 has referred to the 14 WP 84106/12 earlier decisions reported in [2002]5 SCC 294 and (2) [2003]4 SCC 399 and held that it is essential for the election petitioner to aver by pleading material facts that the result of the election insofar as it is concerned, the returned candidate has been materially affected by such breach or non-observance. It is relevant to note that none of the provisions of Section 19 of the Act of 1993 provide that withholding or suppression of material facts relating to the assets and liabilities or pendency of a criminal case as on the date of the nomination is a ground to set aside the election and as could be seen from the Order of the Election Commission referred to supra, it could be a ground for the Election Commission to initiate criminal action against such candidate. It is necessary for the petitioner to establish that such suppression or pendency of a criminal case has materially affected the result of the returning candidate.
13. Therefore, as the petitioner neither pleaded the ground under Section 19(d)(i) of the Act of 1993 nor established the fact that the improper acceptance of nomination has been materially affected, setting aside the election on the aforesaid ground is improper and erroneous.
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14. As could be seen from the petition, apart from the returned candidate i.e., respondent No.1, the petitioner and respondent Nos.2 to 17 have also contested the election. Though the difference of votes between the petitioner and respondent No.1 is only 7 votes, as to whom the voters could have voted in the election in the absence of the petitioner cannot be anticipated. When there were more than 2 candidates for a single seat and only one is disqualified, the voters not being aware of the disqualification, it cannot be assumed that they would have voted in favour of the 1st respondent herein if he was disqualified. Therefore, this Court in a decision reported in ILR 2009 Kar. 3429 [Smt. K.K.Banu Vs. Smt. R.Bhagirathy and another] held as stated above and declaring that respondent No.1 as the returned candidate is proper. The principle laid-down in the decision referred to above was also accepted in the Division Bench decision reported in ILR 2007 Kar. 491 [T.S.Patil Vs. The Joint Registrar of Co- operative Societies and Others].
15. In substance, the petitioner has not pleaded the grounds accepted by the Court below for setting aside the elections and though pleaded that there is erroneous counting 16 WP 84106/12 of the votes, there is no evidence in this behalf. Hence it could be said that in the absence of the pleadings, any amount of evidence cannot be accepted to set aside the election and any pleading in the absence of evidence is also not sufficient. In that view of the matter, the Order passed by the trial Court setting aside the election of returned candidate and declaring the 1st respondent herein has elected is both erroneous and illegal.
In the result, the petition is allowed, setting aside the Order dated 17.08.2012 in Election Petition No.10/2010 passed by the Court below, the copy of which has been produced at Annexure-"G", consequently the election petition filed by the 1st respondent before the trial Court is dismissed. No costs.
Sd/-
JUDGE Ksm*