IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE G. NARENDAR WRIT PETITION No.22578/2018 (LB-ELE) BETWEEN SMT. TANUJA W/O SHIVASHANKAR, AGED ABOUT 40 YEARS, IPPADI VILLAGE, HUTTARI DURGA HOBLI, KUNIGAL TALUK TUMKUR DISTRICT-572111.
... PETITIONER (BY SRI NAGARAJAPPA A, ADV.) AND 1. SRI DEVARAJ I N S/O NAGARAJ I P AGED ABOUT 43 YEARS, R/AT IPPADI VILLAGE, 2ND BLOCK, HUTTARI DURGA, KUNIGAL TALUK, TUMKUR DISTRICT-572111.
2. THE CHIEF SECRETARY GOVERNMENT OF KARNATAKA VIDHANA SOUDHA, BENGALURU - 560001 3. THE DEPUTY COMMISSIONER TUMKUR DISTRICT TUMKUR – 572111.
4. THE TAHASILDAR KUNIGAL TALUK, KUNIGAL TUMKUR DISTRICT-572111.
5. THE CHIEF ELECTION OFFICER, RETURNING OFFICER, IPPADI VILLAGE, HUTTARI DURGA HOBLI, KUNIGAL TALUK, TUMKUR DISTRICT-572111.
... RESPONDENTS (BY SRI NITHYANANDA MURTHY.P, ADV. FOR R1, SRI M.A.SUBRAMANI, HCGP FOR R2 TO R5.) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER OF THE SENIOR CIVIL JUDGE AND JMFC, AT KUNIGAL IN E.P.NO.2/2016 DATED 21.04.2018 MARKED AT ANNEXURE-E ETC.
THIS WRIT PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 11.07.2019, COMING ON FOR PRONOUNCEMENT OF ORDERS , THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER 1. Heard the learned Counsel for the petitioner, the learned HCGP and the learned Counsel for respondent No.1.
2. Facts of the case:
Elections were notified to the Ippadi Gram Panchayath of Kunigal Taluk, Tumakuru District. Elections were held on 02.06.2015. The petitioner contested the elections from the constituency reserved for women (G) i.e., Block-I of Ippadi Gram Panchayat. The petitioner was returned as the successful candidate with a huge margin in the elections held on 02.06.2015. The respondent No.1 on 01.07.2015 preferred an Election Petition in the Court of Civil Judge, Kunigal, the same came to be numbered as E.P.No.2/2015. The petition is filed invoking the provisions of Sections 12, 15, 16, 18, 19, 20 & 22 of the Karnataka Grama Swaraj and Panchayat Raj Act, 1993.
3. The petition pleadings consisted of four paragraphs.
The first paragraph details the respondents and narrates the date of election and the election of the petitioner. In paragraph 2, it is contended that as per the Circular issued by the Election Commission, every candidate is required to file a declaration detailing the candidate's educational qualification, the source of income, assets and liabilities and criminal history as on the date of filing of the nomination. That petitioner has not furnished any details in the declaration form at Col. No.4(A) and 4(B) regarding assets and income of her dependants and her income details. That respondent No.4 colluding with the petitioner illegally accepted the nomination form despite the absence of particulars in the declaration form and hence, the election of the petitioner is required to be declared as null and void. In paragraph 3, it is alleged that respondent No.4 has accepted the nomination despite she having not declared the enormous extent of agricultural lands in the name of her family members in Ippadi village and despite the family holding large tracts of land, respondent No.4 has accepted the nomination. That the petitioner has suppressed the fact of land held by her family. That she has also suppressed the source of income of her family as required under Col. No.4(B) of the Declaration Form. That she has merely mentioned her educational qualification as SSLC and place of study as Sira and has not furnished any particulars in Col. No.5(A)(4) pertaining to payment of taxes. That in Col. No.4(A)(B) she has not revealed the name of her dependants. Paragraph 4 narrates that respondent No.1 - petitioner therein is a resident of Ippadi village and he is a voter in the election held for Block-I of Ippadi Gram Panchayat and that the petition is preferred to demonstrate the wrongful acceptance of the petitioner's nomination and that the petitioner was not eligible to contest the elections and paragraph 4 is followed by the prayer column.
4. In the examination-in-chief also, respondent No.1 - petitioner therein has merely reiterated the allegations in the petition pleadings i.e., Col. No.4(A) & 4(B) are not filled in and that the petitioner has not furnished the details of her dependants. Despite the suppression, the respondent No.4 has wrongfully accepted the nomination form. That she has not furnished the details of her bank account and the balance available in her bank account and hence the acceptance is illegal. That she has not furnished the details of assets held by her family members and thereby she has furnished false information. That she has not detailed her sources of income. That she has not furnished the details of the house owned by her in Kempegowdanagar, Bengaluru. That she has not detailed her educational qualification and the place of study. That she has not given full and complete information and hence, the acceptance of the nomination form is illegal and consequently, her election is required to be declared as null and void. He got marked Exs.P-1 to P-9 being the RTCs to demonstrate the holding of lands by the petitioner's family. Ex.P-10 is the nomination form and the declaration form is produced and marked as Ex.P-11.
5. The petitioner resisted the petition by filing a detailed objections to the election petition and has denied the allegations that she has not provided details. She has also denied the fact of owning any lands or property. Further, in paragraph 4, it is denied that respondent No.1 is a permanent resident of Ippadi village and he is not a registered voter of the said village. That all material information and documents have been furnished to the Returning Officer and after careful scrutiny of the same, the nomination has been accepted and was she elected by polling the maximum number of votes. That the petition is filed at the instigation of rival politicians.
6. The Designated Court framed the following points for determination:
1. whether the petitioner satisfied that respondent No.5 has deliberately withhold/suppress relevant information in declaration for No.4(A) & (B)?
2. If so, whether he further satisfied that the election of respondent No.5 from Ippadi Grama Panchayat block No.1 is null and void?
3. What order?
7. The Court has taken both the points for determination together. The Court held that the crux of the dispute is twofold i.e., respondent No.5 did not fill in the mandatory columns at Sl. No.4 and respondent No.4 being under an obligation to scrutinize the same, has illegally accepted it. It has looked into Exs.P-1 to P-9 the RTCs in respect of different lands, Ex.P-10 the nomination form and Ex.P-11 declaration form. The court below has observed that Exs.P-1, P-2, P-6 & P-7 are relevant as they are standing in the name of RW-2, her mother-in-law i.e., mother-in-law of the writ petitioner. The other RTCs are standing in the name of the natural mother of RW-1 i.e., the petitioner. The Court below taking note of the admission of the petitioner in the cross-examination about her holding 150 grams of gold jewellery and there being an LIC policy in the name of her daughter and her further admission that she ought to have declared the same, and after taking note of the properties standing in the name of petitioner's mother, petitioner's elder brother-in-law and petitioner's mother-in-law, proceeded to presume that her husband also had a share and that she has not placed any documents to demonstrate the allotment of property in her husband's name. It further drew a presumption that the separate ration cards issued is only to take advantage of the free grains that is being issued by the Government and that it does not demonstrate that they are living separately. It further proceeded to presume that RW-2 is the Kartha and that the witnesses and the petitioner and her husband and family constitute Hindu Undivided family. It further proceeded to presume that in Hindu Undivided families though they reside separately, they own the properties jointly. That the stand of the petitioner that all the members of the family have separated and are living separately is only to mislead the court and the above said discussion and presumptions, proceeded to hold that the petitioner has suppressed information regarding her individual assets and her husband's family. Then it posed a query to itself as to why she had left the columns 4(A) & (B) blank and answered it by saying that it could be presumed that she has done it out of inadvertence. It proceeded to hold that there is overwhelming evidence to demonstrate suppression of information by the petitioner and based on the above discussion, proceeded to declare the election of the petitioner as null and void. The said order is impugned in the instant writ petition.
8. It is contended by the learned Counsel for the petitioner that the Court has adopted a cavalier approach and failed to even consider the maintainability of the petition. The Court failed to see that respondent No.1 - Election Petitioner has not placed any material to demonstrate that he is a registered voter in the constituency and eligible to vote in the election conducted to the Ippadi Gram Panchayat. That an election petition can only be preferred either by a candidate in the election or by a voter who is qualified to vote in such election, meaning thereby in the election to the Ippadi Gram Panchayat. That there is absolutely no material placed on record by respondent No.1 despite the petitioner having raised a specific objection. It is contended that none of the revenue records pertain to the petitioner or her family members i.e., her husband and daughter. He would contend that neither the pleadings nor the deposition of respondent No.1 nowhere states that the properties are the properties which are held on behalf of the petitioner's husband much less the petitioner or that they are joint family properties. He would further contend that it is not even the case of respondent No.1 that the petitioner is a member of Hindu Undivided Family and that RW-2 is the kartha of the Hindu Undivided Family. Neither in the pleadings nor in the examination-in-chief has the election petitioner deposed in those terms. In the absence of pleadings and evidence in support of the said fact, the presumption drawn by the court is without basis, speculative and illegal. That the court having drawn an inference that the failure to fill the information could be due to inadvertence and thereby having concluded that it has not materially affected the election, ought not to have declared the election of the petitioner as null and void. That the election dispute has been accepted and allowed despite the non-compliance with the provisions of Sections 15 & 16, he would contend that in the event of failure to comply with Section 15, the election petition is liable to be dismissed as mandated under Section 17(1). That failure to comply with the provisions of Section 15(1) goes to the very root of the matter and on that ground alone election petition was liable to be rejected. That none of the grounds set out under Section 19 have been made out and that the election can be set aside only on the grounds set out in Section 19 and not on any other ground. It is contended that the impugned order nowhere records a satisfaction of the designated court with regard to the violations of Section 19 and that on this ground alone, the impugned order is liable to be interfered with. He would further contend that the pleadings have not been verified and hence, the very initiation of the petition itself is bad in law. That the court below has not been able to distinguish between a disqualification suffered and disqualified from contesting the election. That the court below has adopted a mechanical approach. He would contend that failure to declare is not material enough warranting setting aside of the election. That the objections regarding the nomination having not been raised and the subsequent election petition is not maintainable.
9. Per contra, the learned Counsel for respondent No.1 would contend that the declaration of information is mandatory and the Circular has been issued pursuant to a ruling of the Hon'ble Apex Court in the case of UNION OF INDIA VS ASSOCIATION FOR DEMOCRATIC REFORMS & ANOTHER - (2002) 5 SCC 294. He would contend that the elections stood vitiated on account of the non-declaration of information and failure to furnish the information has vitiated the acceptance of the nomination. He would invite the attention of the Court to paragraph 48 which reads as under:
“48. The Election Commission is directed to call for information on affidavit by issuing necessary order in exercise of its power under Article 324 of the Constitution of India from each candidate seeking election to Parliament or a State Legislature as a necessary part of his nomination paper, furnishing therein, information on the following aspects in relation to his/her candidature:
(1) Whether the candidate is convicted/ acquitted/discharged of any criminal offence in the past – if any, whether he is punished with imprisonment or fine.
(2) Prior to six months of filing of nomination, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the court of law. If so, the details thereof.
(3) The assets (immovable, movable, bank balance, etc.) of a candidate and his/her spouse and that of dependants.
(4) Liabilities, if any, particularly whether there are any overdues of any public financial institution or government dues.
(5) The educational qualifications of the candidate.”
10. From a reading of the above paragraph, it is apparent that a direction is issued to the Election Commission to call for information in exercise of its power under Article 324 in respect of candidates and its seeking election to State or Parliament. Further, the ratio behind the judgment is the right of the voter to know which inturn is enshrined as a fundamental right under Article 19(1)(a). There can be no quarrel with the proposition of the ratio laid down by the Hon'ble Apex Court. He would fairly concede that the Apex Court under the said judgment has nowhere held that the omission to furnish all the information would result in annulling the election of the candidate.
11. He would further place reliance on the ruling of the Apex Court in the case of RESURGENCE INDIA VS ELECTION COMMISSION OF INDIA & ANOTHER, to buttress his argument that no column can be left blank and that the same would render the affidavit nugatory and hence, the acceptance of the nomination form is illegal. The said writ petition was moved under Article 32 for a specific direction to effectuate meaningful implementation of the directions issued by the Court in the case of UNION OF INDIA VS ASSOCIATION FOR DEMOCRATIC REFORMS & ANOTHER – (2002)5 SCC 294 and also to direct the Returning Officers to ensure that affidavits filed by the contestants are complete in all respects and to reject affidavits having blank particulars. The Full Bench of the Hon'ble Apex Court after examining the observations and the law laid down in PUCL’s case and the Association for Democratic Reforms and after examining the provisions of 33A, 125A and also the consequences of not filling all the information, as held by the Apex Court in the case of SHALIGRAM SHRIVASTAVA VS NARESH SINGH PATEL – (2003)2 SCC 176, proceeded to hold as under:
“15) Although, the grounds of contention may not be exactly similar to the case on hand but the reasoning rendered in that verdict will come in aid for arriving at a decision in the given case. In order to arrive at a conclusion in that case, this Court traversed through the objective behind filing the proforma. The proforma mandated in that case was required to be filed as to the necessary and relevant information with regard to the candidate in the light of Section 8 of the RP Act. This Court further held that at the time of scrutiny, the Returning Officer is entitled to satisfy himself whether the candidate is qualified and not disqualified, hence, the Returning Officer was authorized to seek such information to be furnished at the time or before scrutiny. It was further held that if the candidate fails to furnish such information and also absents himself at the time of the scrutiny of the nomination papers, then he is obviously avoiding a statutory inquiry being conducted by the Returning Officer under Section 36(2) of the RP Act relating to his being not qualified or disqualified in the light of Section 8 of the RP Act. It is bound to result in defect of a substantial character in the nomination. This Court further held as under:-
“17. In the case in hand the candidate had failed to furnish such information as sought on the pro forma given to him and had also failed to be present personally or through his representative at the time of scrutiny. The statutory duty/power of Returning Officer for holding proper scrutiny of nomination paper was rendered nugatory. No scrutiny of the nomination paper could be made under Section 36(2) of the Act in the light of Section 8 of the Act. It certainly rendered the nomination paper suffering from defect of substantial character and the Returning Officer was within his rights in rejecting the same.”
16) It is clear that the Returning Officers derive the power to reject the nomination papers on the ground that the contents to be filled in the affidavits are essential to effectuate the intent of the provisions of the RP Act and as a consequence, leaving the affidavit blank will in fact make it impossible for the Returning Officer to verify whether the candidate is qualified or disqualified which indeed will frustrate the object behind filing the same. In concise, this Court in Shaligram (supra) evaluated the purpose behind filing the proforma for advancing latitude to the Returning Officers to reject the nomination papers.
17) In the light of the above reasoning, now let us assess the facts of the given case. In Association for Democratic Reforms (supra), this Court arrived at a decision that the members of a democratic society should be sufficiently informed so that they may influence intelligently the decisions which may affect themselves and it would include their decision of casting votes in favour of a particular candidate. This Court further held that if there was a disclosure by a candidate with regard to his criminal antecedents, assets and liabilities and educational qualification, then it would strengthen the voters in taking appropriate decision of casting their votes. This Court further stated as under:-
“38. If right to telecast and right to view to sport games and right to impart such information is considered to be part and parcel of Article 19(1)(a), we fail to understand why the right of a citizen/voter - a little man - to know about the antecedents of his candidate cannot be held to be a fundamental right under Article 19(1)(a). In our view, democracy cannot survive without free and fair election, without free and fairly informed voters. Votes cast by uninformed voters in favour of X or Y candidate would be meaningless. As stated in the aforesaid passage, one- sided information, disinformation, misinformation and non-information, all equally create an uninformed citizenry, which makes democracy a farce. Therefore, casting of vote by a misinformed and non-informed voter or a voter having one-sided information only is bound to affect the democracy seriously. Freedom of speech and expression includes right to impart and receive information, which includes freedom to hold opinions. Entertainment is implied in freedom of 'speech and expression' and there is no reason to hold that freedom of speech and expression would not cover right to get material information with regard to a candidate who is contesting election for a post which is of utmost importance in the democracy.
46. …4. To maintain the purity of elections and in particular to bring transparency in the process of election, the Commission can ask the candidates about the expenditure incurred by the political parties and this transparency in the process of election would include transparency of a candidate who seeks election or re- election. In a democracy, the electoral process has a strategic role. The little man of this country would have basic elementary right to know full particulars of a candidate who is to represent him in Parliament where laws to bind his liberty and property may be enacted.
…7. Under our Constitution, Article 19(1)(a) provides for freedom of speech and expression. Voters's speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is a must. Voter's (little man-citizen's) right to know antecedents including criminal past of his candidate contesting election for MP or MLA is much more fundamental and basic for survival of democracy. The little man may think over before making his choice of electing law-breakers as law-makers.”
18) Thus, this Court held that a voter has the elementary right to know full particulars of a candidate who is to represent him in the Parliament and such right to get information is universally recognized natural right flowing from the concept of democracy and is an integral part of Article 19(1)(a) of the Constitution. It was further held that the voter's speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is a must. Thus, in unequivocal terms, it is recognized that the citizen’s right to know of the candidate who represents him in the Parliament will constitute an integral part of Article 19(1)(a) of the Constitution of India and any act, which is derogative of the fundamental rights is at the very outset ultra vires.
19) With this background, Section 33A of the RP Act was enacted by Act 72 of 2002 with effect from 24.08.2002. Thus, the purpose of the Act 72 of 2002 was to effectuate the right contemplated in Association for Democratic Reforms (supra). However, the legislators did not incorporate all the suggestions as directed by this Court in the above case but for mandating all the candidates to disclose the criminal antecedents under Section 33A by filing an affidavit as prescribed along with the nomination paper filed under Section 33(1) of the RP Act so that the citizens must be aware of the criminal antecedents of the candidate before they can exercise their freedom of choice by casting of votes as guaranteed under the Constitution of India. As a result, at present, every candidate is obligated to file an affidavit with relevant information with regard to their criminal antecedents, assets and liabilities and educational qualifications.
20) Let us now test whether the filing of affidavit stating that the information given in the affidavit is correct but leaving the contents blank would fulfill the objective behind filing the same. The reply to this question is a clear denial. The ultimate purpose of filing of affidavit along with the nomination paper is to effectuate the fundamental right of the citizen under Article 19(1)(a) of the Constitution of India. The citizens are required to have the necessary information at the time of filing of the nomination paper in order to make a choice of their voting. When a candidate files an affidavit with blank particulars, it renders the affidavit itself nugatory.
21) For that purpose, the Returning Officer can very well compel a candidate to furnish information relevant on the date of scrutiny. We were appraised that the Election Commission already has a standard draft format for reminding the candidates to file an affidavit as stipulated. We are of the opinion that along with the above, another clause may be inserted for reminding the candidates to fill the blanks with the relevant information thereby conveying the message that no affidavit with blank particulars will be entertained. We reiterate that it is the duty of the Returning Officer to check whatever the information required is fully furnished at the time of filing of affidavit with the nomination paper since such information is very vital for giving effect to the ‘right to know’ of the citizens. If a candidate fails to fill the blanks even after the reminder by the Returning Officer, the nomination paper is fit to be rejected. We do comprehend that the power of Returning Officer to reject the nomination paper must be exercised very sparingly but the bar should not be laid so high that the justice itself is prejudiced.
22) We also clarify to the extent that in our coherent opinion the above power of rejection by the Returning Officer is not barred by Para 73 of People’s Union for Civil Liberties (PUCL) (supra) which reads as under:-
“73. While no exception can be taken to the insistence of affidavit with regard to the matters specified in the judgment in Assn for Democratic Reforms case, the direction to reject the nomination paper for furnishing wrong information or concealing material information and providing for a summary enquiry at the time of scrutiny of the nominations, cannot be justified. In the case of assets and liabilities, it would be very difficult for the Returning Officer to consider the truth or otherwise of the details furnished with reference to the 'documentary proof'. Very often, in such matters the documentary proof may not be clinching and the candidate concerned may be handicapped to rebut the allegation then and there. If sufficient time is provided, he may be able to produce proof to contradict the objector's version. It is true that the aforesaid directions issued by the Election Commission are not under challenge but at the same time prima facie it appears that the Election Commission is required to revise its instructions in the light of directions issued in Assn for Democratic Reforms case and as provided under the Representation of the People Act and its third Amendment.”
23) The aforesaid paragraph, no doubt, stresses on the importance of filing of affidavit, however, opines that the direction to reject the nomination paper for furnishing wrong information or concealing material information and providing for a summary inquiry at the time of scrutiny of the nominations cannot be justified since in such matters the documentary proof may not be clinching and the candidate concerned may be handicapped to rebut the allegation then and there. This Court was of the opinion that if sufficient time is provided, the candidate may be in a position to produce proof to contradict the objector's version. The object behind penning down the aforesaid reasoning is to accommodate genuine situation where the candidate is trapped by false allegations and is unable to rebut the allegation within a short time. Para 73 of the aforesaid judgment nowhere contemplates a situation where it bars the Returning Officer to reject the nomination paper on account of filing affidavit with particulars left blank. Therefore, we hereby clarify that the above said paragraph will not come in the way of the Returning Officer to reject the nomination paper if the said affidavit is filed with blank columns. The candidate must take the minimum effort to explicitly remark as ‘NIL’ or ‘Not Applicable’ or ‘Not known’ in the columns and not to leave the particulars blank, if he desires that his nomination paper be accepted by the Returning Officer.
24) At this juncture, it is vital to refer to Section 125A of the RP Act. As an outcome, the act of failure on the part of the candidate to furnish relevant information, as mandated by Section 33A of the RP Act, will result in prosecution of the candidate. Hence, filing of affidavit with blank space will be directly hit by Section 125A(i) of the RP Act. However, as the nomination paper itself is rejected by the Returning officer, we find no reason why the candidate must again be penalized for the same act by prosecuting him/her.
25) If we accept the contention raised by Union of India, viz., the candidate who has filed an affidavit with false information as well as the candidate who has filed an affidavit with particulars left blank should be treated at par, it will result in breach of fundamental right guaranteed under Article 19(1)(a) of the Constitution, viz., ‘right to know’, which is inclusive of freedom of speech and expression as interpreted in Association for Democratic Reforms (supra).
26) In succinct, if the Election Commission accepts the nomination papers in spite of blank particulars in the affidavits, it will directly violate the fundamental right of the citizen to know the criminal antecedents, assets and liabilities and educational qualification of the candidate. Therefore, accepting affidavit with blank particulars from the candidate will rescind the verdict in Association for Democratic Reforms (supra). Further, the subsequent act of prosecuting the candidate under Section 125A(i) will bear no significance as far as the breach of fundamental right of the citizen is concerned. For the aforesaid reasons, we are unable to accept the contention of the Union of India.
27) What emerges from the above discussion can be summarized in the form of following directions:
(i) The voter has the elementary right to know full particulars of a candidate who is to represent him in the Parliament/Assemblies and such right to get information is universally recognized. Thus, it is held that right to know about the candidate is a natural right flowing from the concept of democracy and is an integral part of Article 19(1)(a) of the Constitution.
(ii) The ultimate purpose of filing of affidavit along with the nomination paper is to effectuate the fundamental right of the citizens under Article 19(1)(a) of the Constitution of India. The citizens are supposed to have the necessary information at the time of filing of nomination paper and for that purpose, the Returning Officer can very well compel a candidate to furnish the relevant information.
(iii) Filing of affidavit with blank particulars will render the affidavit nugatory.
(iv) It is the duty of the Returning Officer to check whether the information required is fully furnished at the time of filing of affidavit with the nomination paper since such information is very vital for giving effect to the ‘right to know’ of the citizens. If a candidate fails to fill the blanks even after the reminder by the Returning Officer, the nomination paper is fit to be rejected. We do comprehend that the power of Returning Officer to reject the nomination paper must be exercised very sparingly but the bar should not be laid so high that the justice itself is prejudiced.
(v) We clarify to the extent that Para 73 of People’s Union for Civil Liberties case (supra) will not come in the way of the Returning Officer to reject the nomination paper when affidavit is filed with blank particulars.
(vi) The candidate must take the minimum effort to explicitly remark as ‘NIL’ or ‘Not Applicable’ or ‘Not known’ in the columns and not to leave the particulars blank.
(vii) Filing of affidavit with blanks will be directly hit by Section 125A(i) of the RP Act However, as the nomination paper itself is rejected by the Returning Officer, we find no reason why the candidate must be again penalized for the same act by prosecuting him/her.
28) The Writ Petition is disposed of with the above directions.”
12. From a reading of the above, it is apparent that the Apex Court has been pleased to hold that leaving blanks would render the affidavit nugatory and would empower the Returning Officer to reject the nomination of the candidate and would also leave the candidate liable for prosecution under Section 125A(1). The said rulings have been laid down keeping in view the larger interest of the democratic process and to ensure purity in administration.
13. On a query to the learned Counsel whether similar provisions are enacted under the Karnataka Gram Swaraj and Panchayat Raj Act, 1993, enabling the rejection or as to whether any provision has been enacted under the Act which would invalidate the election of a candidate or which would render the candidate liable for prosecution, his answer is in the negative.
14. This Court has perused the Circular issued by the election commission. No doubt, the Election Commission has issued the Circular placing reliance on the judgment of the Apex Court in the case of UNION OF INDIA VS ASSOCIATOIN FOR DEMOCRATIC REFORMS & ANOTHER. The Circular instructs the Returning Officers that a similar declaration shall be obtained from the candidates. But, it does not specify the consequences of filing an incomplete declaration or whether the omission to completely fill up the declaration form in all respects would invalidate the election.
15. This Court has perused the provisions of both the Act and the Rules. Neither the Act nor the Rules provide for a declaration as mandated by the Apex Court. Admittedly, the said reformative directions emanated in the background of the elections to the Parliament and the State Legislatures. In the instant case, the election is to the Gram Panchayath and the fact remains that sometimes even illiterates contest the elections and after a careful reading of the above rulings, it is seen that the Court has held that the blanks left in the declaration form would render it nugatory and would empower the Returning Officer to reject the nomination and improper acceptance of any nomination is a ground for declaring the election void. Section 19(1)(d)(i) reads as under:
“(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.”
16. In the above circumstances, the point that falls for consideration is, whether the election petitioner/ respondent No.1 has pleaded and proved, that the improper acceptance of the nomination has materially affected the result of the returned candidate?
17. On a reading of the rulings placed before the Court, it is apparent that the rulings have been rendered in the background of Sections 33A and 125A of the R.P.Act, 1951. The Hon’ble Apex Court interpreting the provisions of Section 33A was pleased to hold that the provision enables the electorate to be enlightened about the candidates who be desired to elect in the elections to follow. Section 125A provides for prosecuting any candidate who with the intention of getting elected fails to furnish the information as mandated under Section 33A or gives false information which he knows or has reason to believe to be false or conceals any information. Thus, even under the R.P.Act, the candidate could be penalized only if there is a failure to furnish the information under sub-section (1) of Section 33A or furnishes the information which he knows or reason to believe is false or conceals any information. It is further relevant to note that sub-section (2) of Section 33A specifically stipulates the filing of an affidavit sworn to by the candidate and the same shall be in the prescribed form and further stipulates that the information specified therein shall be verified by the candidate.
18. Having perused the Act and Rules, this Court does not find any corresponding provisions. Be that as it may, the principle laid down by the Apex Court in the case of Association for Democratic Reforms & another, as clarified by the Apex Court in Resurgence’s case, would only entail in the rejection of the nomination at the worst. It is a moot question as to whether even prosecution as provided under Section 125A is permissible in respect of the candidates contesting in the Gram Panchayat elections. Even the Circular upon which heavy reliance is placed by the respondent is conspicuously silent on the aspect of the effects of an incomplete declaration form. This Court has perused the provisions of Rule 7 which pertains to General duty of the Returning Officer, Rule 14 & Rule 17 pertaining to scrutiny of nominations. None of the Rules provides for any consequence as contended and prayed for by the election petitioner.
19. This Court has adverted to the pleadings in the election petition. Though it is pleaded that the acceptance of the nomination is illegal, no particulars are provided nor pleaded to demonstrate that the improper acceptance of the nomination has materially affected the result of the election in so far as the returned candidate is concerned. There is not even a plea as to how the same has materially affected. Section 19(1)(d)(i) could be invoked only if the election petitioner is able to point out the effect that the incomplete declaration form had on the result of the elected candidate. Leave alone producing proof, there is not even a whisper in the election petition or in the evidence let in with regard to this aspect. Nothing is stated in the evidence or in the pleadings as to how the result of the elected candidate got affected by the improper acceptance. In the absence of such pleadings, the designated Court seriously erred in allowing the petition. It is also relevant to note that the designated court has nowhere stated as to which ground is invoked for unseating the elected candidate. The pleadings nowhere disclose as to on which ground of Section 19, the election of returned candidate is sought to be declared as null and void. That apart, the designated court has proceeded to decide the matter on assumptions and presumptions which are not corroborated by any evidence. The observation of the Court that the returned candidate – the instant petitioner, is a member of the Hindu Undivided Family is mere wishful and fanciful thinking and the same is contrary to the material on record by way of evidence. The other reasoning that the separate ration cards are merely an eyewash and cannot be the ground to believe that they are residing separately is not even a case that is canvassed by the election petitioner. The observation of the designated court and the appreciation of the evidence placed before it, to state the least, is perverse. The respondent No.1 – election petitioner apart from placing the various revenue documents has not even whispered as to how the petitioner or her husband are entitled to or have a right and interest in the said lands. The records reveal that the same are in the name of various other persons i.e., the mother, mother-in-law and brother- in-law of the instant petitioner. The burden of demonstrating the petitioner’s or her husband’s share in the properties was squarely on the shoulders of the respondent No.1 – election petitioner. There is not even a whisper that all these members constitute a joint family. The perversity in the reasoning is made apparent by the fact of the designated court drawing a presumption that the mother of the petitioner constitutes a member of the family or a dependent of the petitioner. It is absurd that the mother of a married daughter becomes a member of the joint family. The respondent No.1 has not placed a single piece of evidence worth its while, which demonstrates that the petitioner has either concealed any information or suppressed or screened any information or has furnished any false information.
20. The onus in an election petition is squarely on the election petitioner who approaches the designated court to demonstrate the fact of breach of the law which provides for unseating the elected candidate. In the instant case, it is the provisions of Section 19. The pleadings in the election petition do not in any manner demonstrate any of the grounds as set out under Section 19. Any election petition can succeed only if the petitioner is able to demonstrate the ground which enables the designated court to pass an order declaring the election as null and void.
21. Learned Counsel for the petitioner has placed reliance on the ruling in the case of VIRENDAR NATH GAUTAM VS SATPAL SINGH & OTHERS – (2007)3 SCC 617. The Apex Court distinguishing material facts and full particulars, as has been held by the Apex Court in paragraphs 29 to 35 as follows:
“29. From the relevant provisions of the Act reproduced hereinabove, it is clear that an election petition must contain a concise statement of “material facts” on which the petitioner relies. It should also contain “full particulars” of any corrupt practice that the petitioner alleges including a full statement of names of the parties alleged to have committed such corrupt practice and the date and place of commission of such practice. Such election petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”) for the verification of pleadings. It should be accompanied by an affidavit in the prescribed form in support of allegation of such practice and particulars thereof.
30. All material facts, therefore, in accordance with the provisions of the Act, have to be set out in the election petition. If the material facts are not stated in a petition, it is liable to be dismissed on that ground as the case would be covered by clause (a) of sub-section (1) of Section 83 of the Act read with clause (a) of Rule 11 of Order 7 of the Code.
31. The expression “material facts” has neither been defined in the Act nor in the Code. According to the dictionary meaning, “material” means “fundamental”, “vital”, “basic”, “cardinal”, “central”, “crucial”, “decisive”, “essential”, “pivotal”, “indispensable”, “elementary” or “primary”. [Burton's Legal Thesaurus (3rd Edn.), p. 349]. The phrase “material facts”, therefore, may be said to be those facts upon which a party relies for his claim or defence. In other words, “material facts” are facts upon which the plaintiff's cause of action or the defendant's defence depends. What particulars could be said to be “material facts” would depend upon the facts of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by the party.
32. In the leading case of Philipps v. Philipps [(1878) 4 QBD 127 : 48 LJQB 135 : (1874-80) All ER Rep Ext 1684 (CA)] , Cotton, L.J. stated:
“What particulars are to be stated must depend on the facts of each case. But in my opinion it is absolutely essential that the pleading, not to be embarrassing to the defendants, should state those facts which will put the defendants on their guard and tell them what they have to meet when the case comes on for trial.”
33. In Bruce v. Odhams Press Ltd. [(1936) 1 KB 697 : (1936) 1 All ER 287 (CA)] , Scott, L.J. referring to Philipps v. Philipps [(1878) 4 QBD 127 : 48 LJQB 135 : (1874-80) All ER Rep Ext 1684 (CA)] observed: (All ER p. 294) “The cardinal provision in Rule 4 is that the statement of claim must state the material facts. The word ‘material’ means necessary for the purpose of formulating a complete cause of action; and if any one ‘material’ statement is omitted, the statement of claim is bad; it is ‘demurrable’ in the old phraseology, and in the new is liable to be ‘struck out’ under RSC Order 25 Rule 4 (see Philipps v. Philipps [(1878) 4 QBD 127 : 48 LJQB 135 : (1874-80) All ER Rep Ext 1684 (CA)] );
or ‘a further and better statement of claim’ may be ordered under Rule 7.”
34. A distinction between “material facts” and “particulars”, however, must not be overlooked. “Material facts” are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. “Particulars”, on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. “Particulars” thus ensure conduct of fair trial and would not take the opposite party by surprise.
35. All “material facts” must be pleaded by the party in support of the case set up by him. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial.
22. As discussed above, the only fact pleaded by the petitioner is that the acceptance of the nomination accompanied by a inchoate declaration form is illegal. No other fact or particular is either pleaded or proved before the Court below. Mere production of the documents would not partake the character of evidence. The onus was on the election petitioner not only to speak about the said documents, but a duty was cast on him to demonstrate the fact as to the nature of the right the petitioner or her husband or daughter had in the said properties. The material in this regard is conspicuous by its absence.
23. As held by the Apex Court in the case of MAIREMBAM PRITHVIRAJ ALIAS PRITHVIRAJ SINGH VS PUKHREM SHARATCHANDRA SINGH - (2017)2 SCC 487, it would not suffice if merely a finding is recorded that there has been an improper acceptance of the nomination but there has to be a further pleading and proof that the result of the elected candidate was materially affected. The exception to demonstrate such a fact would be a situation when there are only two candidates. Admittedly, the election petitioner is not a candidate in the elections nor does the pleadings disclose as to how many candidates contested from the said Block-I constitutency. The Apex Court after placing reliance on its own judgments in the case of DURAI MUTHUSWAMI VS N.NACHIPPAN – (1973)2 SCC 45 and JAGJIT SINGH VS DHARAM PAL SINGH – 1995 SUPP. (1) SCC 422, was pleased to observe and hold in paragraphs 23 to 26 as under:
“23. It is clear from the above judgment in Durai Muthuswami [Durai Muthuswami v. N. Nachiappan, (1973) 2 SCC 45] that there is a difference between the improper acceptance of a nomination of a returned candidate and the improper acceptance of nomination of any other candidate. There is also a difference between cases where there are only two candidates in the fray and a situation where there are more than two candidates contesting the election. If the nomination of a candidate other than the returned candidate is found to have been improperly accepted, it is essential that the election petitioner has to plead and prove that the votes polled in favour of such candidate would have been polled in his favour. On the other hand, if the improper acceptance of nomination is of the returned candidate, there is no necessity of proof that the election has been materially affected as the returned candidate would not have been able to contest the election if his nomination was not accepted. It is not necessary for the respondent to prove that result of the election insofar as it concerns the returned candidate has been materially affected by the improper acceptance of his nomination as there were only two candidates contesting the election and if the appellant's nomination is declared to have been improperly accepted, his election would have to be set aside without any further enquiry and the only candidate left in the fray is entitled to be declared elected.
24. The judgment of this Court in Durai Muthuswami [Durai Muthuswami v. N. Nachiappan, (1973) 2 SCC 45] was referred to in Jagjit Singh v. Dharam Pal Singh [Jagjit Singh v. Dharam Pal Singh, 1995 Supp (1) SCC 422] , in which it was held as follows: (Jagjit Singh case [Jagjit Singh v. Dharam Pal Singh, 1995 Supp (1) SCC 422] SCC p. 429, para 21) “21. The trial Judge has held that since there is no averment in the petition that the result of the election was materially affected by improper rejection or acceptance of votes, it is devoid of cause of action. We are unable to agree that the absence of such an averment in the facts of this case is fatal. As pointed out by this Court, there may be cases where the obvious conclusion to be drawn from the circumstances is that the result of the election has been materially affected and that Section 100(1)(d) of the Act is not intended to provide a convenient technical plea in a case where there can be no dispute at all about the result of the election being
Nachiappan, (1973) 2 SCC 45] .) In the present case, the appellant in the election petition has stated that he has lost by a margin of 80 votes only. From the various averments in the election petition it was evident that the number of valid votes of the appellant which are alleged to have been improperly rejected is much more than 80. From the averments contained in the election petition it is thus obvious if the appellant succeeds in establishing his case as set out in the election petition the result of this election, insofar as it concerns the returned candidate, would be materially affected.”
25. It was held by this Court in Vashist Narain Sharma v. Dev Chandra [Vashist Narain Sharma v. Dev Chandra, (1955) 1 SCR 509 : AIR 1954 SC 513] as under: (AIR pp. 515-16, para 9) “9. The learned counsel for the respondents concedes that the burden of proving that the improper acceptance of a nomination has materially affected the result of the election lies upon the petitioner but he argues that the question can arise in one of three ways:
(1) 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, (2) where the person referred to above secured more votes, and (3) where the person whose nomination has been improperly accepted is the returned candidate himself.
It is agreed that in the first case the result of the election is not materially affected because if all the wasted votes are added to the votes of the candidate securing the highest votes, it will make no difference to the result and the returned candidate will retain the seat. In the other two cases it is contended that the result is materially affected. So far as the third case is concerned it may be readily conceded that such would be the conclusion. But we are not prepared to hold that the mere fact that the wasted votes are greater than the margin of votes between the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected. That is a matter which has to be proved and the onus of proving it lies upon the petitioner. It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate. The casting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how many or which proportion of the votes will go to one or the other of the candidates. While it must be recognised that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by Section 100(1)(c) and hold without evidence that the duty has been discharged. Should the petitioner fail to adduce satisfactory evidence to enable the Court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand.”
(emphasis supplied) This Court in Kisan Shankar Kathore v. Arun Dattatray Sawant [Kisan Shankar Kathore v. Arun Dattatray Sawant, (2014) 14 SCC 162] dealt with a situation similar to that of this case. In that case, the election of the returned candidate was successfully challenged on the ground of non- disclosure of material information. The appeal filed by the returned candidate was dismissed by this Court by observing as follows: (SCC p. 188, para 43) “43. … 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.”
26. Mere finding that there has been an improper acceptance of the nomination is not sufficient for a declaration that the election is void under Section 100(1)(d). 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 proof in the event of the nomination of a returned candidate being declared as having been improperly accepted, especially in a case where there are only two candidates in the fray. If the returned candidate's nomination is declared to have been improperly accepted it would mean that he could not have contested the election and that the result of the election of the returned candidate was materially affected need not be proved further. We do not find substance in the submission of Mr Giri that the judgment in Durai Muthuswami [Durai Muthuswami v. N. Nachiappan, (1973) 2 SCC 45] is not applicable to the facts of this case. The submission that Durai Muthuswami [Durai Muthuswami v. N. Nachiappan, (1973) 2 SCC 45] is a case of disqualification under Section 9-A of the Act and, so, it is not applicable to the facts of this case is also not correct. As stated supra, the election petition in that case was rejected on the ground of non-compliance with Section 100(1)(d). The said judgment squarely applies to this case on all fours. We also do not find force in the submission that the Act has to be strictly construed and that the election cannot be declared to be void under Section 100(1)(d) without pleading and proof that the result of the election was materially affected. There is no requirement to prove that the result of the election of the returned candidate is materially affected once his nomination is declared to have been improperly accepted.”
24. In the absence of material particulars, the designated court erred in allowing the election petition and declaring the election of the instant petitioner as null and void. Consequently, the petitioner must succeed. The point for consideration is accordingly answered in favour of the petitioner.
25. In the result, petition is allowed. The order under challenge is set aside.
KK CT-HR Sd/- JUDGE