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14 2025 23 1946)
BENGALURU, FRIDAY, 14, MARCH, 2025 PHALGUNA , 23, SHAKAVARSHA, 1946)
. 152 No. 152 ¨sÁUÀ – 4ಎ Part – IVA
PERSONNEL AND ADMINISTRATIVE REFORMS SECRETARIAT (ELECTIONS)
NOTIFICATION
DPAR 14 CHUTHAA 2025, Bengaluru, Dated: 14.03.2025
ELECTION COMMISSION OF INDIA
Nirvachan Sadan, Ashoka Road, New Delhi – 110001
No:82/KT-LA/200006/2023 Dated: 21st February, 2025 2 Falgun, 1946 (Saka)
NOTIFICATION
No:82/KT-LA/200006/2023 - In pursuance of Section 106 (b) of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India hereby publishes the judgment / order of the High Court of Karnataka, Kalaburagi, dated:21.10.2024 in the Election Petition No.200006/2023.
(1) IN THE HIGH COURT OF KARNATAKA AT KALABURAGI BENCH
DATED THIS THE 21ST DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE Mr. JUSTICE SHIVASHANKAR AMARANNAVAR ELECTION PETITION No.200006/2023
BETWEEN :
SURYAKANTH NAGAMARAPALLI S/O LATE GURUPAADHAPPA NAGAMARPALLI AGED ABOUT 54 YEARS AT No.8-6-394/2 KHB COLONY, NEAR SHIVA TEMPLE BIDAR – 585 401.
… PETITIONER (BY SRI JAIRAJ K BUKKA, ADVOCATE)
AND :
1. RAHIM KHAN
S/O MAHMOOD KHAN AT No.9-5-162 VIVEKANANDANAGAR IRANI COLONY BIDAR- 585 401.
2. ANILKUMAR TUKARAM KHASHAMPURE
S/O THUKARAM No.52, KHASIMPUR TALUQ PAN BIDAR – 585 401.
3. ISHWAR SINGH THAKUR S/O NARSING RAO No.8-11-291, KEB ROAD FLAT No.15, S.B.H. COLONY BIDAR – 585 401.
4. GULAM ALI
S/O MOHMED FAKIR PASHA No.10-3-110 PAKALWADA NEAR ABDUL FAIZ DARGA ROAD BIDAR – 585 401.
5. ASHOK KARANJI GADGI
S/O MANNIKAPPA KARANJI No.19-6-333 NEAR GANESHA MANDIR SHIVNAGAR NORTH BIDAR – 585 401.
6. MAHESH GORNALKAR S/O MANIKAPPA No.17-1-320 C.M.C. COLONY, MAILOOR BIDAR – 585 401.
7. HANAMANTH MATTE S/O SIDDRAM No.114, BALLUR (J) TALUK AURAD (B) BIDAR – 585 401.
8. GUNDOJI
S/O BABURAO No.32, BIDRI COLONY, MAILOOR BIDAR – 585 401.
9. SHASHIKUMAR S POLICE PATIL CHAWLI
S/O SHAM RAO No.153, VILLAGE CHAWLI BIDAR TALUK POST NAUBAD – 585 402.
10. GANESHWAR JAISURYA HOSMANI
SURESH HOSAMANI FRONT OF URBAN BANK OUTSIDE FATTEDARWAJA BIDAR TALUK BIDAR – 585 401.
…RESPONDENTS
(BY SRI SANJAY A PATIL AND
SRI SANJEEV KUMAR A BABASHETTY FOR R1 A/W SRI ROHAN HOSMATH AND ABHISHEK GOWDA A H, R2, R3, R4, R5 AND R9 ARE SERVED BUT UNREPRESENTED
V/O DTD. 31.11.2023 R6, R7,, R8 AND R10 IS HELD SUFFICIENT)
---
THIS ELECTION PETITION IS FILED UNDER SECTION 80, 81, 84, 100 R/W 123 OF THE REPRESENTATION OF PEOPLE ACT, 1951 PRAYING TO DECLARE THE ELECTION OF THE RESPONDENT No.1 RETURNED CANDIDATE AS VOID UNDER SECTION 100 (1)(b) OF THE REPRESENTATION OF PEOPLE ACT 1951 AND DECLARE THE PETITIONER AS HAVING DULY BEEN ELECTED TO THE CONSTITUENCY No.50 BIDAR ASSEMBLY CONSTITUENCY AS THE PETITIONER RECEIVED NEXT HIGHEST MAJORITY OF THE VALID VOTES THAN THE RETURNED CANDIDATE I.E, RESPONDENT No.1 AND ETC.,
THIS ELECTION PETITION IS BEEN HEARD AND RESERVED ON 21.09.2024 COMING ON FOR 'PRONOUNCEMENT' OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CAV ORDER
1. This petition is filed under Sections 80, 81, 84, 100 r/w Section 133 of the Representation of People Act, 1951 (for short R.P.Act, 1951) seeking the following prayers;
i. "Declare the election of the Respondent No.1
returned candidate as void under section 100(1)
(b) of the Representation of People Act 1951.
ii. Declare the petitioner as having duly been elected
to the constituency No.50 Bidar Assembly
constituency as the petitioner received next
highest majority of the valid votes than the
returned candidate i.e. Respondent No.1.
iii. Pass such other orders as this Hon'ble court may
deem fit."
2. I.A.No.1/2024 is filed by counsel for respondent No.1 under Order VI Rule 16 of Code of Civil Procedure, 1908 (for short 'CPC') r/w Section 87 of the R.P.Act, 1951 praying to strike out the pleadings in Paragraphs 6 to 24, since they are unnecessary, scandalous, frivolous and vexatious; otherwise tend to prejudice or delay the fair trial of the election petition. I.A.No.2/2024 is filed under Order VII Rule 11(a) of CPC r/w Section 87 of the R.P.Act, 1951 praying to reject the election petition in the interest of justice and equity, since it does not disclose any cause of action. Both the applications are supported by the affidavit of respondent No.1. In the said affidavit, it is stated that;
(i) The entire pleadings set out in the election petition are liable to be struck off as they are unnecessary, frivolous and vexatious; otherwise tend to prejudice or delay in fair trial of the election petition. The necessary material facts and material particulars required under Section 83 of the R.P.Act, 1951 are conspicuously absent.
(ii) The averments in the election petition at Paragraph Nos.6 to 12 and Paragraph No.24 deal the alleged bogus votes cast in favour of respondent No.1 and the gist of the allegations is that 'few thousand fake votes' were cast by the persons who were either dead or persons who were not in the Country and persons from the State of Telangana have cast the votes with fabricated Aadhar cards. The petitioner has not pleaded the names of voters who have cast the alleged fake votes, names of voters who were not present in the Country and the names of voters who are alleged to be dead except stating the polling station details. The election petition is lacking any material facts with respect to identity, specific place of such bogus or fake voting, specific booth of polling and such other material facts. The averments qua obtaining Form 17-A register and passing of order by the learned Single Judge of this Court in W.P.No.201574/2023 dated 30.05.2023 is of no avail as it has been set-aside by the Division Bench of this Court in W.A.No.200095/2023 by order dated 30.08.2023, wherein the application of the petitioner for obtaining Form 17-A register is rejected. Therefore, the said averment being unnecessary are liable to be struck off.
(iii) The averments in Paragraph Nos.13 and 14 are vague and bald since the petitioner apart from stating that respondent No.1 has omitted to 'add certain relevant information', has not pleaded any material fact regarding the alleged non-disclosure.
(iv) The averment in Paragraph No.17 that respondent No.1 failed to disclose the pendency of the case registered by Lokayukta in Complaint No.3700/2017 is vexatious.
Section 33-A(1)(i) of the R.P.Act, 1951 requires a candidate to furnish criminal antecedents, where he is accused of any offence punishable with imprisonment for two years or more in a pending case; in which a charge has been framed by a Court of competent jurisdiction. A mere complaint allegedly filed against respondent No.1, without pleading any material fact as to the initiation of criminal prosecution or registration of First Information Report, framing of charges etc., is bald and liable to be struck off as unnecessary and vexatious.
(v) The averments in Paragraph No.23, respondent No.1 has not disclosed landed properties of Nursing College and 'D' and 'B' Pharmacy college buildings is whimsical and completely a bald statement. The R.P.Act, 1951, Rule 4-A of the Conduct of Election Rules, 1961 and Form No.26 therein and the law laid down by the Hon'ble Supreme Court requires that every candidate to disclose their assets and the assets of his or her spouse and does not require the candidate to state that position one holds in any Institution. Therefore, it is bald, frivolous and vexatious.
(vi) The averments in Paragraph Nos.15 and 16 and Paragraph Nos.20 to 22 deals with issue of guarantee cards allegedly amounting to corrupt practices. If the entire allegations are taken to be true, the same would not amount to corrupt practices since the issue whether 'promises' made in the election manifesto would amount to corrupt practices is covered by the judgment of the Hon'ble Supreme Court in S.Subramaniam Balaji Vs. State of Tamil Nadu reported in (2013) 9 SCC 659, wherein it has been categorically held that Section 123 of R.P.Act, 1951 relates to corrupt practice by a candidate or his agent and does not include within its ambit, any promise made by a political party which in essence is a future promise made if a Government is formed. The allegation in the election petition that respondent No.1 printed the guarantee cards is bald and abuse of process of Court; or there is no material facts and necessary material particulars as to the date, time, place and persons involved in the alleged act of printing the cards. The material fact as to the date, time and place for distribution of alleged guarantee cards to the voters coupled with the element of bargain is conspicuously absent in the pleadings; rendering the entire allegations are vague and rather vexatious.
(vii) The allegation in Paragraph No.21 of the petition that respondent No.1 has given speeches on social media and other platforms without reference to specific dates, time and events, is thus liable to be struck off as being vexatious. The entire allegation contained in the election petition do not meet the statutory requirement under the provisions of R.P.Act, 1951 and therefore, are liable to be struck as vexatious, frivolous and unnecessary.
(viii) The averments in the petition does not disclose the cause of action for presentation of election petition under Section 86 of the R.P.Act, 1951. While challenging the election under Section 80 of the R.P.Act, 1951, the petitioner must plead concise statements of material facts on which he relies and set forth full particulars of any corrupt practices and date and place of commission of such practices in accordance with Section 83 of the R.P.Act, 1951.
3. The petitioner has filed statement of objections to both I.A.Nos.1 and 2 of 2024, wherein it is contended that;
(i) The petitioner has provided specific and cogent details such as polling stations where the alleged bogus voting took place, the approximate number of such votes and the modus operandi employed. The names of the individual voters are not necessary at this stage and can be proved through evidence during the trial, including by summoning the relevant records from the Election Commission. The petitioner has pleaded that the bogus votes have materially affected the election result. There is a serious allegation in Lokayukta Complaint No.3700/2017 which is pending against respondent No.1. The non- disclosure of landed properties, nursing college and pharmacy college buildings are also material facts that go to the eligibility and qualification of respondent No.1 to contest the election. The complaint filed by the Lokayukta is a relevant fact that should have been disclosed by respondent No.1 in his affidavit regardless of the stage of the complaint. The allegations regarding the guarantee cards cannot be mechanically struck out based on respondent's misplaced reliance. The distribution of guarantee cards with the photographs and the name of respondent No.1 amounts to corrupt practice under Section 123 of the R.P.Act, 1951 as it is a direct attempt to bribe and influence the voters. The speeches causing enmity between religious communities are not vague or lacking in material facts. Speeches made by respondent No.1 on social media and other platforms during the election campaign was with deliberate intent of promoting hatred and disharmony between different religious and linguistic groups. The specific details such as date, time and exact words spoken are not essential at this stage and can be provided through evidence during the trial. Striking out these pleadings solely on the ground that they lack minute details would be a gross injustice and would prematurely shut out a valid and substantial ground of challenge to the election. The striking out pleadings under Order VI Rule 16 of CPC is a drastic measure and should be resorted to only in the rarest of rare cases, where the pleadings are ex facie vexatious, frivolous or an abuse of process of the Court.
The pleadings in the present election petition disclose a serious and valid cause of action challenging the election of respondent No.1 on multiple grounds. Striking them out at the threshold would amount to a summary dismissal of the election petition without a trial, which would be contrary to the principles of natural justice and fair play.
(ii) The petitioner has a fundamental right under Article 329(b) of the Constitution of India to challenge the election of respondent No.1 by presenting an election petition before this Court. This right cannot be lightly taken away by striking out substantial portions of the pleadings at the behest of the very person whose election is under challenge.
(iii) The election petition disclose a valid cause of action under Section 86 of R.P.Act, 1951. The petitioner has raised a substantive grounds challenging the election such as bogus votes, improper acceptance of nomination paper, non-disclosure of information, alleged hate speech and luring voters with false promises in the form of guarantees and they are supported by the documents. The election petition complies with the requirement of Section 86 of R.P.Act, 1951. The petitioner has provided concise statements of material facts and particulars of the corrupt practices alleged. The guarantee cards that were distributed by respondent No.1 with the photograph on the same would clearly depict how the gifts were promised to each and every person. Respondent No.1 has committed an offence of luring voters in the name of religion on numerous occasions, all of which are document on camera and telecasted and they would be provided to this Hon'ble Court at the time of evidence along with the certificate in proper format. The Hon'ble Court may not delve into the merits of the case at this stage as the purpose of Order VII Rule 11 of CPC is only to determine whether the petitioner discloses a cause of action and not to assess the strength of the evidence or the likelihood of success. The petitioner has provided specific details of the alleged corrupt practices including dates, places and names of the parties involved as required under Section 83 of the R.P.Act, 1951. The election petition disclose a valid cause of action and complies with the requirements of Section 83 of the R.P.Act, 1951. With these objections, counsel for the petitioner has prayed to dismiss both I.A.Nos.1 and 2 of 2024.
4. Heard learned counsel for respondent No.1 and learned counsel for the petitioner on I.A.Nos.1 and 2 of 2024.
5. These applications are filed contending that the averments in the petition are cryptic, bald and vague and does not constitute the ground for declaring the election of returning candidate as void. Learned counsel for respondent No.1 would contend that the concise statement of material facts as required are absent in the petition.
6. The Hon'ble Apex Court in the case of Samant N Balkrishna And Another vs. George Fernandez and Others. reported in 1969 (3) SCC 238 has observed thus;
29. Having dealt with the substantive law on the
subject of election petitions we may now turn to
the procedural provisions in the Representation of
the Peoples Act. Here we have to consider Sections
81, 83 and 84 of the Act. The first provides the
procedure for the presentation of election petitions.
The proviso to sub-section alone is material here. It
provides that an election petition may be presented
on one or more of the grounds specified in sub-
section (1) of Section 100 and Section 101. That as
we have shown above creates the substantive
right. Section 83 then provides that the election-
petition must contain a concise statement of the
material facts on which the petitioner relies and
further that he must also 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. The section is
mandatory and requires first a concise statement of
material facts and then requires the fullest possible particulars. What is the difference between material
facts and particulars? The word "material" shows
that the facts necessary to formulate a complete
cause of action must be stated. Omission of a
single material fact leads to an incomplete cause of
action and the statement of claim becomes bad.
The function of particulars is to present as full a
picture of the cause of action with such further
information in detail as to make the opposite party
understand the case he will have to meet. There
may be some overlapping between material facts
and particulars but the two are quite distinct. Thus
material facts will mention that a statement of fact
(which must be set out) was made and it must be
alleged that it refers to the character and conduct
of the candidate that it is false or which the
returned candidate believes to be false or does not
believe to be true and that it is calculated to
prejudice the chances of the petitioner. In the
particulars the name of the person making the
statement, with the date, time and place will be
mentioned. The material facts thus will show the
ground of corrupt practice and the complete cause
of action and the particulars will give the necessary
information to present a full picture of the cause of
action. In stating the material facts it will not do merely to quote the words of the section because
then the efficiency of the words "material facts" will
be lost. The fact which constitutes the corrupt
practice must be stated and the fact must be co-
related to one of the heads of corrupt practice. Just
as a plaint without disclosing a proper cause of
action cannot be said to be a good plaint, so also
an election petition without the material facts
relating to a corrupt practice is no election petition
at all. A petition which merely cites the sections
cannot be said to disclose a cause of action where
the allegation is the making of a false statement.
That statement must appear and the particulars
must be full as to the person making the statement
and the necessary information. Formerly the
petition used to be in two parts. The material facts
had to be included in the petition and the
particulars in a schedule. It is inconceivable that a
petition could be filed without the material facts
and the schedule by merely citing the corrupt
practice from the statute. Indeed the penalty of
dismissal summarily was enjoined for petitions
which did not comply with the requirement. Today
the particulars need not be separately included in a
schedule but the distinction remains. The entire
and complete cause of action must be in the petition in the shape of material facts, the
particulars being the further information to
complete the picture. x x x x x x ."
7. The Hon'ble Apex Court in the case of Anil Vasudev Salgaonkar vs. Naresh Kushali Shigaonkar reported in 2009 (9) SCC 310 has observed thus;
49. In this view of the matter, the court trying
the election petition can act in exercise of the
powers of the Code including Order 6 Rule 16 and
Order 7 Rule 11(a) of the Code. These provisions
are set out as under:
"16. Striking out pleadings.- The court may at
any stage of the proceedings order to be
struck out or amended any matter in any
pleading-
(a) which may be unnecessary, scandalous, frivolous or vexatious, or
(b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or
(c) which is otherwise an abuse of the process of the court.
* * *
11. Rejection of plaint.- The plaint shall
be rejected in the following cases-
(a) where it does not disclose a cause
of action;"
50. The position is well settled that an election
petition can be summarily dismissed if it does not
furnish the cause of action in exercise of the power
under the Code of Civil Procedure. Appropriate
orders in exercise of powers under the Code can be
passed if the mandatory requirements enjoined by
Section 83 of the Act to incorporate the material
facts in the election petition are not complied with.
51. This Court in Samant N. Balkrishna case has
expressed itself in no uncertain terms that the
omission of a single material fact would lead to an
incomplete cause of action and that an election
petition without the material facts relating to a
corrupt practice is not an election petition at all. In
Udhav Singh v. Madhav Rao Scindia the law has
been enunciated that all the primary facts which
must be proved by a party to establish a cause of
action or his defence are material facts. In the
context of a charge of corrupt practice it would
mean that the basic facts which constitute the
ingredients of the particular corrupt practice alleged by the petitioner must be specified in order to
succeed on the charge. Whether in an election
petition a particular fact is material or not and as
such required to be pleaded is dependent on the
nature of the charge levelled and the circumstances
of the case. All the facts which are essential to
clothe the petition with complete cause of action
must be pleaded and failure to plead even a single
material fact would amount to disobedience of the
mandate of Section 83(1)(a). An election petition
therefore can be and must be dismissed if it suffers
from any such vice. The first ground of challenge
must therefore fail.
57. It is settled legal position that all "material
facts" must be pleaded by the party in support of
the case set up by him within the period of
limitation. 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 will entail dismissal of
the election petition. The election petition must
contain a concise statement of "material facts" on
which the petitioner relies." 8. The Hon'ble Apex Court in the case of Kanimozhi Karunanidhi vs. A Santhana Kumar and Others reported in 2023 SCC Online 573 has observed thus;
28. The legal position enunciated in aforestated
cases may be summed up as under:-
i. Section 83(1)(a) of RP Act, 1951 mandates that
an Election petition shall contain a concise
statement of material facts on which the petitioner
relies. If material facts are not stated in an Election
petition, the same is liable to be dismissed on that
ground alone, as the case would be covered by
Clause (a) of Rule 11 of Order 7 of the Code.
ii. The material facts must be such facts as would
afford a basis for the allegations made in the
petition and would constitute the cause of action,
that is every fact which it would be necessary for
the plaintiff/petitioner to prove, if traversed in
order to support his right to the judgment of court.
Omission of a single material fact would lead to an
incomplete cause of action and the statement of
plaint would become bad.
iii. Material facts mean the entire bundle of facts
which would constitute a complete cause of action.
Material facts would include positive statement of
facts as also positive averment of a negative fact, if
necessary.
iv. In order to get an election declared as void
under Section 100(1)(d)(iv) of the RP Act, the
Election petitioner must aver that on account of
non-compliance with the provisions of the
Constitution or of the Act or any rules or orders
made under the Act, the result of the election, in so
far as it concerned the returned candidate, was
materially affected.
v. The Election petition is a serious matter and it
cannot be treated lightly or in a fanciful manner nor
is it given to a person who uses it as a handle for
vexatious purpose.
vi. An Election petition can be summarily dismissed
on the omission of a single material fact leading to
an incomplete cause of action, or omission to
contain a concise statement of material facts on
which the petitioner relies for establishing a cause
of action, in exercise of the powers under Clause
(a) of Rule 11 of Order VI CPC read with the
mandatory requirements enjoined by Section 83 of
the RP Act." 9. The Hon'ble Apex Court in the case of Ram Sewak Yadav vs. Hussain Kamil Kidwai and Others reported in AIR 1964 SC pg 1249 has observed thus;
10. To support his claim for setting aside the
election the petitioner has to make precise allegations
of material facts which having regard to the elaborate
Rules are or must be deemed to be within his
knowledge. The nature of the allegations must of
course depend upon the facts of each case. But if
material facts are not stated, he cannot be permitted
to make out a case by fishing out the evidence from
an inspection of the ballot papers."
10. The co-ordinate Bench of this Court in the case of Ambanna Hanumappa Naik vs. Sharnappa and others reported in 1972 SCC Online Kar 232 equivalent citation AIR 1973 Mysuru 261 has observed thus;
26. Coming next to Para VIII of the petition, it
relates to proxy votes cast on behalf of the living as
well as dead persons. The places where such voting
is alleged to have occurred have been mentioned.
There is no reference whatsoever to the names of
persons who voted and of those who were impersonated, whether dead or alive. There is also
no allegation as to whether the result of the
election has been materially affected on this
account. In short, the allegations are of a highly
vague and general character. It is, therefore, clear
that the petitioner does not disclose a cause of
action at all. Hence there is nothing which calls for
an amendment. By the amendment for the first
time it is sought to refer to a list of 38 persons who
were said to have been impersonated. Again, even
in the amendment there is no reference to the fact
whether such voters in the list have been dead or
alive. The true legal position in this regard can be
gathered from the following observations of a
Division Bench of this Court in H. Nagappa v. G.
Venkategowda, (1964-2 Mys LJ 51). The
enunciation in question occurs at page 57 of that
report and reads thus:
"…… The question whether any particular voter was
dead or was in jail or that he was not entitled to
vote, is a material fact and unless that fact is
alleged in the pleadings, it is extremely difficult for
any respondent to disprove the evidence tendered
by the petitioners. In C.R. Narasimhan v. Election
Tribunal, Mudurai, ((1958) 16 Ele LR 327 (Mad)), the High Court of Madras held that a general
allegation in the election petition that
impersonation of dead persons has taken place,
does not entitle the petitioner to lead evidence
when the petitioner does not give in the election
petition itself the names of the persons who are
said to have been impersonated or at least before
the period of limitation for filing the election
petition expires, and that if a list of names of
impersonated voters has been in the petition, he
cannot be permitted to prove during the trial that
other persons whose names were not included in
the list of names supplied by him, had also been
impersonated." Hence amendment proposed to
paragraph VIII of the petition, is disallowed."
11. The Hon'ble Apex Court in the case of Kunwar Nripendra Bahadur Singh vs. Jai Ram Verma and Others reported in (1977) 4 SCC Pg 153 has observed as under;
25. Thus in a catena of cases this Court has
consistently taken the view that the finality of the
electoral roll cannot be challenged in an election
petition even if certain irregularities had taken
place in the preparation of the electoral roll or if subsequent disqualification had taken place and the
electoral roll had on that score not been corrected
before the last hour of making nominations. After
that dead-line the electoral roll of a constituency
cannot be interfered with and no one can go behind
the entries except for the purpose of considering
disqualification under Section 16 of the 1950 Act.
26. The election could be set aside only on the
grounds mentioned in Section 100 of the 1951 Act.
In this case reliance was placed under Section
100(1)(d)(iii) for invalidating the election on the
ground of reception of void votes. We have already
shown that the electoral roll containing the
particular names of voters was valid and there is,
therefore, no question of reception of any vote
which was void. There is, thus, no substance in that
ground for challenging the election.
12. It is alleged in the petition that few thousand fake votes were cast by the persons who were either dead or persons who were not in the Country. Persons from State of Telengana have cast the votes with fabricated Aadhar cards. The particulars of dates, persons, their death certificate, names of the persons residing abroad and names of voters who have created bogus Aadhar cards who are residents of Telengana State are not pleaded in the petition. There is no allegation as to whether the result of the election has been materially affected on that account.
In short, the allegations are of highly vague and general character. It is therefore, clear that the petition does not disclose the cause of action at all. The particulars of voters who were dead or who were residing abroad is a material fact and unless that fact is alleged in the pleadings, it is extremely difficult for any respondent to disprove the evidence tendered by the petitioner. The said aspect has been considered by the Co-ordinate Bench of this Court in Ambanna Hanumanthappa's case supra.
13. There is an allegation in the petition that respondent No.1 failed to disclose the pendency of the case registered by Lokayukta in Complaint No.3700/2017. The details of the said complaint are not furnished in the petition. No document has been produced in that regard. Section 33-A(1)(i) of the R.P.Act, 1951 requires a candidate to furnish criminal antecedents, where he is accused of any offence punishable with imprisonment for two years or more in a pending case; in which a charge has been framed by a Court of competent jurisdiction. A mere complaint allegedly filed against respondent No.1, without pleading any material fact as to the initiation of criminal prosecution or registration of First Information Report, framing of charges, is thus, bald and unnecessary.
14. It is alleged in the petition that respondent No.1 has not disclosed landed properties as he having a Nursing college building and 'D' and 'B' Pharmacy college buildings in the State and he is a Chairperson of various colleges in Karnataka State. The said averment contained in Paragraph No.23 is completely bald statement. As per the R.P.Act, 1951, Rule 4-A of the Conduct of Election Rules, 1961 and Form No.26 therein requires every candidate to disclose their assets and the assets of his or her spouse and does not require the candidate to state that position one holds in any Institution. Therefore, the said averment is bald, frivolous and vexatious.
15. In Paragraph No.21 of the petition, it is alleged that respondent No.1 has given speeches on social media and other platforms allegedly causing enmity between the classes. The specific dates, time and places of the alleged speeches; the words so spoken to cause such enmity, the names and description of different classes of citizens which caused otherwise attempted in connection to the election is not even pleaded.
16. There is an allegation in the pleading that there is an improper acceptance of nomination of respondent No.1 as his affidavit does not contain the signature of the Notary on each page of the affidavit. On perusal of the affidavit of respondent No.1, respondent No.1 has affixed his signature on all the pages of the affidavit. There is a seal of the Notary on each page of the affidavit and the affidavit has been sworn to before the Notary and for that, there is a signature and seal of the Notary on the last page of the affidavit. No doubt, the Notary has not affixed his signature on each page of the affidavit, but stamp of the Notary is contained in each page of the affidavit. The said affidavit should be in Form 26 as required under Rule 4A of the Conduct of Election Rules, 1961. Under the notes below the Form 26 at Sl.No.5, it is stated that each page of the affidavit should be signed by the deponent and the affidavit should bear on each page, the stamp of the Notary or Oath Commissioner or the Magistrate before whom the affidavit is sworn.
17. Considering the said aspect, the signature of the Notary on each page of the affidavit is not mandatory.
Each page of the affidavit contains stamp of the Notary.
The Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. The said alleged defect is not of substantial character so as to reject the nomination paper as per Sub Section (4) of Section 36 of the Conduct of Elections Rules, 1961.
18. There is an allegation in the petition that respondent No.1 has got printed the guarantee card which is at Annexure-M and it contains photograph of respondent No.1.
On perusal of the said Annexure-M – guarantee card, it is a guarantee to the people of Karnataka by C.L.P Leader and President of K.P.C.C. The said five guarantees are contained in the manifesto of Congress party.
19. The Hon'ble Apex Court has considered the promises made in the election manifesto is the corrupt practice or not in the case of Subramanian Balaji Vs. State of Tamil Nadu reported in 2013 (9) SCC Page 659, wherein it is held as under;
61. As appealing this argument may sound good,
the implementation of this suggestion becomes
difficult on more than one count:
61.1. Firstly, if we are to declare that every kind of
promises made in the election manifesto is a
corrupt practice, this will be flawed. Since all
promises made in the election manifesto are not
necessarily promising freebies per se, for instance,
the election manifesto of a political party promising
to develop a particular locality if they come into
power, or promising cent per cent employment for
all young graduates, or such other acts. Therefore,
it will be misleading to construe that all promises in
the election manifesto would amount to corrupt
practice. Likewise, it is not within the domain of
this Court to legislate what kind of promises can or
cannot be made in the election manifesto.
61.2. Secondly, the manifesto of a political party is
a statement of its policy. The question of
implementing the manifesto arises only if the
political party forms a Government. It is the
promise of a future Government. It is not a promise
of an individual candidate. Section 123 and other
relevant provisions, upon their true construction, contemplate corrupt practice by individual
candidate or his agent. Moreover, such corrupt
practice is directly linked to his own election
irrespective of the question whether his party forms
a Government or not. The provisions of the RP Act
clearly draw a distinction between an individual
candidate put up by a political party and the
political party as such. The provisions of the said
Act prohibit an individual candidate from resorting
to promises, which constitute a corrupt practice
within the meaning of Section 123 of the RP Act.
The provisions of the said Act place no fetter on the
power of the political parties to make promises in
the election manifesto.
61.3. Thirdly, the provisions relating to corrupt
practice are penal in nature and, therefore, the rule
of strict interpretation must apply and hence,
promises by a political party cannot constitute a
corrupt practice on the part of the political party as
the political party is not within the sweep of the
provisions relating to corrupt practices. As the rule
of strict interpretation applies, there is no scope for
applying provisions relating to corrupt practice
contained in the said Act to the manifesto of a
political party.
84.1. After examining and considering the
parameters laid down in Section 123 of the RP Act,
we arrived at a conclusion that the promises in the
election manifesto cannot be read into Section 123
for declaring it to be a corrupt practice. Thus,
promises in the election manifesto do not constitute
as a corrupt practice under the prevailing law."
20. In view of the above decision of the Hon'ble Apex Court, the said guarantees contained in Annexure – M are found in the election manifesto and they did not constitute corrupt practices. Considering the similar case with regard to the promises made in the election manifesto in a challenge to election, the Co-ordinate Bench in E.P.No.14/2023 has rejected the election petition under Order VII Rule 11(a) of C.P.C. In a similar case, the Co- ordinate Bench in E.P.No.15/2023 relying upon the decision of the Hon'ble Apex Court in the case of Subramanian N. Balaji's case supra, the manifesto of Indian National Congress promising five guarantees cannot be held to be corrupt practice and rejected the election petition as it does not disclose the cause of action. The said order has been challenged before the Hon'ble Apex Court in Civil Appeal No.6263/2024 which came to be dismissed affirming the order of the Co-ordinate Bench of this Court. In view of the above, the omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad.
21. In view of the above, the applications I.A.Nos.1 and 2 of 2024 filed by respondent No.1 deserves to allowed.
Accordingly, they are allowed. Consequently, the petition is rejected as it does not disclose the cause of action.
R.N.I. No. KARBIL/2001/47147 POSTAL REGN. No. RNP/KA/BGS/2202/2017-19
38
Licensed to post without prepayment WPP No. 297
In view of disposal of the petition, all pending applications stands disposed of.
Sd/-
(SHIVASHANKAR AMARANNAVAR) JUDGE
GH
By Order
(B C PATRA) SECRETARY
ELECTION COMMISSION OF INDIA
(MADHU A.C)
Assistant Chief Electoral Officer
& E/o Under Secretary to Government
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