New Delhi, Jun 28 (ILNS) The Supreme Court today reserved its judgement on a petition filed by a Corporator against the order passed by the Karnataka High Court, wherein the High Court has upheld the judgement of Principal District and Sessions Judge setting aside the election as the Councilor representing Ward No 36, Yeraganahalli of Mysore city Corporation.
A three-judge Bench of Justice Uday Umesh Lalit, Justice Indira Banerjee and Justice Ajay Rastogi heard the Counsels for both the parties and asked them to submit their written arguments, if they want to submit any, in not more than five pages within a week.
Counsel of the petitioner, Shyam Divan requested the Court for issuing notice to the respondents as well as to stay the previous order as interim order.
Mr Divan submitted before the Court that the question of law in the present matter is that there are no provisions to amend these elections rules which we are concerned with. And under the Karnataka Municipal Corporation Act there is no change or requirement for an affidavit to contain certain particulars regarding providing the details of the immovable property of the candidate contesting and their spouse as well. There are no statutes to support or require the same. That requirement is under the central rules only.
He further argued that Karnataka High Court says that because there are directions issued by the state election commission that operates as having the force of law which according to us is inadequate and that really a question of law. State Election Commission using its constitutional power issued a notification on 14 July, 2003 to amend the form that has to file during the nomination of the election.
Election Commission of India on 10 October, 2018 amended a form 26 that provides format of affidavit of candidates. This amendment is brought about in the conduct of election rules 1961.
In exercise of powers under section 77 r/w 169 of the Representation of the People’s Act, the central government after consulting with the election commission hereby makes the amendment the conduct of election rules 1961. However in the present case they not only issued a notification but an amendment is carried out.
He contended that regarding the rules to make amendment we definitely require a statutory provision to amend forms. In this particular case no statute provides any provision to amend the forms.
Taking about the facts of the case, on September 3rd 2018, petitioner was declared elected as she had secured the highest vote in the election on the post of Councilor in the Mysore Municipal Corporation. Later, after a month, Smt. C. S. Rajani Annaiah filed an election petition calling in question the election of the petitioner as the Councilor. She has submitted in her petition that present petitioner in her nomination filed stated that her two children are not Income Tax Assessees and do not hold any PAN card. She further alleged that Mrs. Rukmini in her affidavit filed has erroneously provided the name of her husband as “Nanjegowda” instead of “S. Madegowda” and claimed to possess the jewels worth Rs. 1,50,000/-. Not only the names but she also not declared the property possessed by her husband.
In her election petition Mrs. Rajani has further alleged that the present petitioner by providing aforementioned false information in the affidavit, has indulged herself in corrupt practices as to claim reservation under BC-B category neither candidate nor her husband can have any immovable property as well as a PAN card.
The present petitioner answered the question regarding mentioning the wrong name of her husband and submits that name of her son has been mentioned instead the name of her husband. Further regarding the details of the properties possessed by her husband she has submitted that she had no knowledge regarding the same.
She further submits that the question regarding the qualification to contest under BC-B category is caste and income. She belongs to Vokkaliga caste and her family income was within the prescribed limits and hence was issued BC-B certificate properly from the competent authority.
At first instance District Court has rejected the election petition filed by the respondent which was challenged before the Karnataka High Court wherein after hearing Court framed three questions for consideration.
(a) Whether an application by a person under the provisions of the Right to Information Act, 2002 seeking details of the Income Tax Returns of a returned candidate, or the close relative/associate of such a candidate, could be rejected perforce on the ground that such details would be exempted from disclosure under the provisions of Section 8(1)(j) of the Right to Information Act, 2002.
(b) Whether the trial Court is justified in dismissing the appellant’s election petition under Section 33 of the Karnataka Municipal Corporations Act, 1971 on the ground that the appellant has failed to prove that the fourth respondent was disqualified/ineligible to contest the elections to Ward No.36 – Yeraganahalli, Mysuru City Corporation as a Backward class candidate.
(c) Whether the trial Court is justified in its finding that the appellant has failed to prove that the fourth respondent has indulged in corrupt practice in not disclosing the Assets and Liabilities of her husband and as such her election as the returned candidate from Ward No.36 – Yeraganahalli, Mysuru City Corporation is void.”
The High Court regarding the first question came to the conclusion that the concerned public officer would be required to apply the legislatively mandated test of proportionality weighing the larger public interests in disclosing over the invasion of privacy of the third party following the steps prescribed in applying such steps keeping the factors to be considered or not to be considered.
As far as the second question was concerned, the High Court came to the conclusion that there were no pleadings to the effect that the husband of the appellant was an Income Tax assessee and hence the appellant could not have claimed the benefit of reservation and consequentially the election could not be called in question on that ground. Thus, the challenge to the election of the appellant on the ground that the appellant could not have availed the benefit of reservation because her husband was an Income Tax assessee was negatived by this Court.
The High Court, however, as regards the third question, held that the rejection of the election petition by the trial court requires to be set aside and the election petition restored to the board of the trial court for reconsideration on the question, whether the fourth respondent has indulged in corrupt practice as contemplated under Section 39 of the KMC Act in mentioning that he did not own immovable/movable properties.
On remand, the District Court, after hearing the parties, has come to the conclusion that the petitioner had deliberately suppressed the material information in the affidavit along with the nomination form and had not disclosed the properties/assets of her husband as required under the provisions of the Representation of the People Act, 1950 (for short, hereinafter referred to as ‘the RP Act’) and the election of the petitioner was in violation of Sections 35 and 39 of the KMC Act. Thus, the election held void.
Petitioner again approached the High Court that after going to all the contentions made by the parties had again framed some questions to consider are as follows-
(a) Whether the non disclosure of assets and liabilities of the appellant’s husband in the form of an affidavit along with the nomination paper amounts to a corrupt practice as contemplated under Section 39 of the KMC Act?
(b) Whether the Election Petition contained a plea regarding corrupt practice and whether it was properly verified and supported with an affidavit as prescribed?
(c) Whether the District Court could have set aside the appellant’s election and declared the 4th respondent as the returned candidate?
The High Court had observed that even though the Rules did not mandate the furnishing of particulars, by reason of the notification dated 14th July 2003, it became imperative for every candidate to furnish full and complete information regarding the five matters stated by the Apex Court. Later, the Election Commission, on 1st June, 2018 i.e., about two months prior to the election in question, also issued a notification by which it sought to add certain further details in the format of the affidavit and a declaration in the affidavit. Since this notification was a continuation of the notification dated 14th July 2003, every candidate was obliged, in law, to furnish the affidavit in the manner prescribed in order to enable him to contest the election.
The Court had placed its reliance on the case of Muniraju Gowda vs Munirathna and others, held that the election petition will have to be read as a whole and cannot be dissected sentence wise or paragraph wise to rule that there was no cause of action. And no Election Petition can be dismissed because it contained a defective verification or a defective affidavit as both of them have been held to be curable defects.
High Court after going through all the facts presented, contentions made and the judgement placed comes to the conclusion that the decision of the District Court in declaring that the respondent was be declared as the returned candidate cannot be sustained and order of district court declaring her elected, is set aside. The decision of setting aside the election of the petitioner as the Councilor to represent Ward No.36, Yeraganahalli Ward of the Mysore City Corporation is upheld.
Aggrieved of this judgement passed by the Karnataka High Court petitioner moved the present SLP before the Apex Court. ILNS/DS/RJ