KSDJ : 20.03.2020 E.P.No.11/2018 COMMON ORDER ON APPLICATIONS IN I.A.Nos.2/2019, 3/2019 & 4/2019, 1/2020, 2/2020 Petitioner-Muniraju Gowda, a candidate defeated in the General Elections 2018 to the 15 th Karnataka Legislative Assembly from 154 Rajarajeshwarinagara Constituency, Bengaluru has presented this Petition seeking to lay a challenge to the election of the 1 st respondent Munirathna (hereafter "Returned Candidate") inter alia on the ground of corrupt practice; he has also sought for an extraordinary relief vide Prayer (c) in the petition to the effect that he be declared as duly elected, in the stead of Returned Candidate; similarly, another person too has laid a challenge in connected Election Petition, which is for the time being kept apart, since the applications filed therein need a separate consideration, as suggested at the Bar. 2. After service of notice, all the respondents having entered appearance through their counsel have filed the Written Statements resisting the Election Petition; the
Transcript
KSDJ: 20.03.2020 E.P.No.11/2018
COMMON ORDER ON APPLICATIONS IN I.A.Nos.2/2019, 3/2019 & 4/2019, 1/2020, 2/2020
Petitioner-Muniraju Gowda, a candidate defeated in the
General Elections 2018 to the 15th Karnataka Legislative
Assembly from 154 Rajarajeshwarinagara Constituency,
Bengaluru has presented this Petition seeking to lay a
challenge to the election of the 1st respondent Munirathna
(hereafter "Returned Candidate") inter alia on the ground of
corrupt practice; he has also sought for an extraordinary
relief vide Prayer (c) in the petition to the effect that he be
declared as duly elected, in the stead of Returned Candidate;
similarly, another person too has laid a challenge in
connected Election Petition, which is for the time being kept
apart, since the applications filed therein need a separate
consideration, as suggested at the Bar.
2. After service of notice, all the respondents having
entered appearance through their counsel have filed the
Written Statements resisting the Election Petition; the
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Returned Candidate has filed amongst other, the following
applications which are the subject matter of consideration,
presently:
i) I.A.No.2/2019 under Order VI Rule 16 of the Code
of Civil Procedure, 1908 read with Sections 81, 83,
86 and 87 of the R.P. Act, 1951 seeking an order
for striking out the pleadings in paragraph Nos. 8
to 30 and the aforesaid prayer (c) in the Election
Petition;
ii) I.A.No.3/2019 under Order VII Rule 11 (a) & (d)
read with Section 151 of CPC, seeking an order for
rejection of the Election Petition on the ground
that it lacks the substratum and a choate cause of
action; and
iii) I.A.No.4/2019 under Section 151 of CPC read
with Sections 86 & 87 of R.P. Act for an order for
striking out prayer (c) specifically requesting that
this application be taken up for consideration
prior to the aforementioned two applications.
3. The petitioner too has filed the following two
applications which too are taken up for consideration along
with those filed by the Returned Candidate:
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a) I.A.No.1/2020 under Order VI Rule 17 of CPC read
with Section 101 of R.P. Act seeking leave to
amend the Election Petition by introducing
additional pleadings/statement allegedly
amplifying the existing pleadings.
b) I.A.No.4/2020 under Order XIII Rules 1 & 2 of
CPC, 1908 read with Section 87 of the R.P. Act
seeking leave to produce copies of eight
documents;
4. The above applications filed by the petitioner and
the Returned Candidate are opposed by each other by filing
objections; some of the respondents too have opposed the
applications of the petitioner; the court after hearing the
parties for some time, vide order dated 26.02.2020 had
received the subject documents enlisted in petitioner’s
application in I.A.No.4/2020 observing specifically “whether
they will become full-fledged record, would depend upon what
turns out to be in the next stages of these Election Petitions.”
5. I have heard the learned counsel for the parties on
all these applications; I have perused the Petition Papers; I
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have also adverted to the Rulings cited at the Bar; I am of a
considered opinion that petitioner's application in
I.A.No.1/2020 seeking leave to amend his pleadings deserves
to be favoured, albeit in part, as mentioned herein below; his
application in I.A.No.4/2020 seeking leave to produce
additional documents, needs to be favoured; similarly, the
application in I.A.No.4/2019 filed by the Returned Candidate
for striking out petitioner's Prayer (c) also deserves to be
granted; however, his other two applications i.e.,
I.A.No.2/2019 for striking out paragraph Nos.8 to 30 in the
Election Petition, and in I.A.No.3/2019 seeking rejection of
Election Petition need to be disallowed; the reasons for these
opinions are as under:
I) AS TO PETITIONER'S APPLICATIONS IN
I.A.NO.1/2020 FOR AMENDMENT OF ELECTION
PETITION:
a) In I.A.No.1/2020, petitioner has sought for leave
of this Court u/o VI Rule 17 of CPC, 1908 r/w Section 101 of
the Act for amending the Petition by way of introducing
paragraph "30(a)", wherein it is inter alia alleged that the
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Returned Candidate, his agent and others with consent had
distributed "Gift, Clothes, Cookers, Cooking Tavas and Water
Cans" and thereby, won the election in an unethical manner;
he alleges "It is pertinent to state that the petitioner received
majority of valid votes, but for votes obtained by the
Respondent No.1 by corrupt practice, the petitioner definitely
would have obtained a majority of valid votes..." [sic]; the
amendment also reiterates illegal collection of EPIC Cards,
Voters ID, etc;
b) petitioner has in several paragraphs of his Petition
already taken up the averments relating to corrupt practices
such as distribution of household articles, clothes, water-
cans, etc; thus, what is now sought to be included [barring
one aspect which is discussed infra], is not much new; at
para 7 of the Petition, he has mentioned about illegal
collection of original Voter Cards, manipulating fake Election
Identity Cards, Form No.6 Acknowledgements, etc; at
paragraphs 11, 12 & 13, he has mentioned about cookers,
cooking tavas, sarees and water-cans given or to be given to
the voters, some of which the Nandini Layout police have
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allegedly seized in Crime No.169/2018; at paragraphs 16 to
19, petitioner has mentioned about the employees/agents of
the Returned Candidate working with laptops, scanners,
stamps, handbill, booklets, visiting cards, etc., in connection
with fabricating fake identity cards and acknowledgements;
therefore, the objection of the respondents that the
amendment seeks to introduce virgin "material facts", only
now, is difficult to agree with; however, this Court hastens to
add that the amendment is not being sanctioned in a whole
sale way, but it is only selectively permitted;
c) petitioner has sought leave to include an averment
that but for the alleged corrupt practice, the Returned
Candidate would have been defeated and eventually, he
would have emerged victorious; true it is, although the
petition contains Prayer (c), but in support of that, there was
no statement of "material facts", pleaded in the petition as
originally filed; when the hearing of the applications filed by
the Returned Candidate was half a through, petitioner has
moved the Amendment Application and thus, obviously the
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diligence which the law expects is lacking, as rightly pointed
out by learned counsel Mr.Ashok Haranahalli, appearing for
the Returned Candidate; no plausible explanation is offered
for the delay brooked in filing the application, either; it is not
in dispute that all “material facts” must be pleaded by the
party in support of the case set up by him, the object being
the enablement of the opponent to know the case which he
needs to meet; in the absence of pleading, a party cannot be
allowed to lead evidence, is well established; to put it in other
words, an Election Petition invariably has to contain a concise
statement of “material facts”, which supports the prayer made
therein, vide: Anil Vasudev Salgoankar vs. Naresh Kushani
Shiggaonkar, 2009 (9) SCC 310; this position of law
militates against leave being granted for amendment for
introducing a statement of "material facts" since apparently it
is time barred;
d) the fact that the petitioner has now moved the
amendment application for introducing the "material facts"
itself shows that they were lacking in the petition, as
originally instituted, the contra contention of his counsel,
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notwithstanding; despite turning page after page of the
petition, learned Senior Advocate Mr. Vijay Shankar
appearing for the petitioner, could not locate even one line of
averment which can even by wild imagination be construed as
constituting "material facts" in support of Prayer (c), as
required u/s 101(b) of the Act for substantiating his stand
that what is now being introduced by way of amendment is
only "material particulars" as contradistinguished from
"material facts"; therefore, Mr.Haranahalli's reliance on
Samanth N Balkrishna Vs. George Fernandes, (1969) 3
SCC 238 comes to the aid of Returned Candidate; the Apex
Court at Para 33 of the said decision observed as under:
“33. To begin with it must be realised that as is stated in Jagan Nath vs. Jaswant Singh and Others the statutory requirements of the law of
Election in India must be strictly observed. It is pointed out in that case that an election contest is not an action at law or a suit in equity but a purely statutory proceeding unknown to common law and that the Court possesses no common law power. Although the power o amendment given in the Code
of Civil Procedure can be invoked because Section 87 makes the procedure applicable, as nearly as may be, to the trial of election petitions, the Representation of Peoples Act, itself enacts some rules which override the Civil Procedure Code.
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General Power of amendment of the power derived from the Code of Civil Procedure must be taken to be overborne in so far as the election law provides. In a large number of cases it has been laid down by
the High Courts in India that the material facts, must make out a charge and it is only then that an amendment to amplify the charge can be allowed or new instances of commission o corrupt practice charged can be given. If no charge is made out in the petition at all the addition of particulars cannot
be allowed to include indirectly a new charge. …”
e) there is force in the contention of Mr.Vijay
Shankar, learned Senior Advocate appearing for the petitioner
that in construing the pleadings of the parties, one cannot
keep the common sense in cold storage; the case of the
parties has to be gathered from the collective reading of entire
pleadings; it is true that the Court has to adopt an approach
which advances due adjudication of the lis, and not the one
that scuttles it; this is the grand norm that governs
amendment of pleadings in a suit proceeding; however, the
provisions of CPC, 1908 relating to amendment of pleadings
in a suit do not proprio vigor apply to the adjudication of the
election disputes of the kind, as already mentioned above and
as reiterated in Jyoti Basu Vs. Debi Ghosal, AIR 1982 SC
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983; therefore, the amendment to the extent of introducing
the substratum contemplated u/s 101(b) of the Act, for
supporting Prayer (c) is impermissible; however, there is no
impediment for sanctioning the remaining portion of
amendment since it is apparently amplificatory and a bit
repetitive of what is already pleaded; this apart, it does not
cause any prejudice to the other side, more specially when an
Addl. Written Statement can be filed by the respondents
resisting the new averment.
II) AS TO PETITIONER'S APPLICATION IN
I.A.NO.4/2020 SEEKING LEAVE TO PRODUCE
ADDITIONAL DOCUMENTS:
The petitioner has sought leave for the production of
eight documents which have the characteristics of public
documents/public records; except the first two enlisted in the
application namely ECI Notice dated 11.09.2014 and
petitioner's Reply dated 03.04.2018, all other documents have
come into existence only in the recent past and long after the
filing of Election Petition; apparently, these documents are
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the products of exercise of statutory power vested in the
Election Commission of India under Sections 10A & 11 of the
Act; thus, they have statutory character; in fact, the Returned
Candidate too referred to the said six documents in support
of his applications for rejection of the petition, and for striking
out Pleadings & Prayer (c); such a reference itself shows that
these documents bear prima facie relevance; if leave to
produce the same is denied, petitioner would be put to a
manifest injustice; conversely, if leave is accorded, no
prejudice would be caused to the other side; in the considered
opinion of this Court, the production of these documents
would facilitate due adjudication of the lis at hands; therefore,
this application deserves to be favoured.
III) AS TO APPLICATION OF RETURNED
CANDIDATE FOR STRIKING OUT PRAYER (c) FROM THE
ELECTION PETITION:
a) Petitioner in addition to making the prayer for
setting aside the Election of the Returned Candidate, has also
sought for a further relief in terms of Prayer (c) in the petition
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"To declare the petitioner as duly elected to the seat of
Constituency No.154;" he has founded this prayer on the
premise of corrupt practice; the averments to be taken up in
the petition, relating to any corrupt practice need to be
reasonably sufficient to constitute a cause of action for
maintaining such an extraordinary prayer;
b) It is a settled legal position that all “material facts”
must be pleaded by the party in support of the case set up by
him, the object being the enablement of the opposite party to
know the case which he has to meet; in the absence of
pleading, a party cannot be allowed to lead evidence, is long
settled; in other words, an Election Petition invariably has to
contain a concise statement of “material facts”, which
supports the prayer made therein, vide: Anil Vasudev
Salgoankar, supra; whether there is a statement of material
facts supporting Prayer (c) in the Petition, needs to be
examined; it is basic to the law of elections and Election
disputes that in a democracy, the mandate of people as
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expressed at the hustings must prevail and be respected, as
already stated above; ordinarily, the election of a successful
candidate is not lightly interfered with; the heavy onus lies on
the election petitioner to make out a cogent case for setting
aside the election of a successful candidate, and the
heaviness of this onus can be likened to the one that lies on
the prosecution in Criminal Jurisprudence; thus, the proof is
not by the preponderance of probability as in ordinary civil
cases vide: R.P.Moidutty supra.
c) Section 101 of the Act provides for seeking a relief
in terms of Prayer (c) as made in the petition; however, the
Apex Court in Prakash Khandre vs. Dr. Vijay Kumar
Khandre (2002) 5 SCC 568 having examined the conspectus
of this Section has held that this provision has two
ingredients, viz., the first provides that after declaring election
of the Returned Candidate to be void, the High Court may
declare the petitioner or such other candidate to have been
duly elected inter alia depending upon the error in counting of
valid votes, or that the petitioner or such other candidate has
received a majority of valid votes; and, the second ingredient
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provides for establishing that the votes obtained by the
Returned Candidate were secured by corrupt practices and
that but for such votes, the petitioner or such other candidate
would have obtained a majority of valid votes; it is also open
to an Election Petitioner to plead and prove that, the votes
secured by the Returned Candidate by perpetrating the
corrupt practice would have been otherwise cast in his favour
or other candidate, but for the corrupt practice, although it
may be much difficult to establish when multiple candidates
were in the fray as is the case at hands.
d) I have examined the tenability of Prayer (c) in the
light of legal position as briefly stated in the above
paragraphs; nowhere in the Election Petition, there is any
statement of material facts or plea which Section 101 of the
Act contemplates for maintaining a Prayer that the Petitioner
be declared to have been elected; despite all endeavors, the
learned Senior Advocate Mr.Vijay Shankar after turning page
after page of the Petition could not point out that there is
such a plea, howsoever loosely emerging from the collective
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reading of all its paragraphs; the contention that in the
amendment, such a plea is now taken with the leave accorded
by the Court, does not avail in view of specific rider in the
order allowing the amendment application.
e) When an Election Petition inter alia containing an
Additional Prayer for declaring that the petitioner or some
other candidate be declared elected is pending, ordinarily the
elections are deferred for such a constituency till after the
disposal of the case, even when there arises a vacancy
because of removal, resignation, death or disqualification of a
victorious candidate; presently, the constituency in question
has no elected candidate because of Speaker's
Disqualification Order dated 28.07.2019 under the Tenth
Schedule to, r/w Article 191(2) of the Constitution of India,
which is later modified by the Apex Court relaxing the
embargo against the disqualified candidates facilitating their
entry to the electoral fray; post relaxation of disqualification,
the elections to all other constituencies have been conducted
saving the constituency in question is not in dispute; thus,
people of this constituency alone do not have a popular
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representative; Democracy amongst other being a basic
feature of the Constitution, law abhors the absence of an
elected representative, indefinitely.
f) The trial & disposal of the challenge to the election
in question by their very nature would take considerable time,
especially when there is one more challenge laid by another in
connected Election Petition; the pleadings are bulky and the
documents are huge; presumably, several persons need to be
examined as witnesses; thus, this legal battle would take it's
own time to reach the culmination point; permitting Prayer (c)
to continue in the petition sans factual substratum
contemplated as a sine qua non u/s 101(b) of the Act, for
prima facie maintaining the same, would virtually amount to
depriving the subject Constituency of the opportunity of
electing it's representative, for an indefinite period of time;
this is not a happy thing to do; therefore, this Court has to
pave way for the Election Commission of India to conduct
election to this Constituency; holding election before long is
therefore eminently desirable lest the remainder of the tenure
of the prospective electee should become unreasonably short;
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the shortness of the tenure will have its own ill-effects, needs
no elaboration.
g) There is yet another aspect which the counsel for
the Returned Candidate, Mr.Haranahalli vociferously argued;
the petitioner suffered an order dated 09.01.2019 made u/s
10A of the Act whereby he was disqualified from contesting
the election for a period of six years; however, on his appeal
u/s 11, the Election Commission vide order dated 17.10.2019
although upheld the disqualification, reduced its period up to
the date of said order i.e., 17.10.2019; the Counsel banking
upon Article 191(1)(e) of the Constitution contended that,
once there is such a disqualification order, petitioner's prayer
for declaring him elected in terms of Section 101(b) of the Act
is constitutionally rendered untenable; this contention is bit
difficult to countenance because:
(i) Article 191 of the Constitution has a heading which
reads: "Disqualifications for Membership." Clause 1(e) of this
Article reads: "A person shall be disqualified for being chosen
as, and for being, a member of the Legislative Assembly or
Legislative Council of a State - if he is so disqualified by or
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under any law made by Parliament." True it is that the
disqualification which the petitioner incurred fits into this
provision; however, the said disqualification which was
initially directed for a period of six years vide Order dated
09.01.2019 made by the ECI u/s 10A of the Act, came to be
abridged by and up to the date of the Appellate Order i.e.,
17.10.2019 made u/s 11 of the Act; the relevant portion of
the Appellate Order reads: "...that the disqualification imposed
on 9th January, 2019, under Section 10A of the said Act, on
Shri Muniraju Gowda P be reduced to the period up to and
including the date of this order and the said disqualification
shall not be operative with effect from 18th October, 2019
onwards....." Countenancing the contention of the kind
advanced on behalf of the Returned Candidate would virtually
amount to giving effect to the original order of disqualification
in militant disregard of variation brought about by the
Appellate Order;
(ii) the text of Article 191(e) of the Constitution
empowers the Parliament to enact law providing for
disqualification and accordingly, Chapter III is introduced to
19
the Act vide Amendment Act 1966 w.e.f. 14.12.1966; the
disqualification incurred under Section 10A as enacted in this
Chapter shall be for a period of three years from the date of
the order; Section 11 empowers the Election Commission to
remove or reduce the period of disqualification; petitioner
suffered a disqualification u/s 10A and got some reprieve u/s
11, is the case put forth at the Bar; Section 7(b) as enacted in
this Chapter defines the word "disqualified" to mean
"disqualified for being chosen as, and for being, a Member of
either House of Parliament or of the Legislative Assembly or
Legislative Council of a State." A short disqualification that
intervenes and vanishes like a speeding comet in the sky
during the pendency of an Election Petition cannot operate as
an absolute bar for maintaining an Additional Prayer for a
declaration that an Election Petitioner or some other
candidate is elected in terms of Section 101(b);
(iii) a different intention consistent with the contention
of the Returned Candidate does not emerge from the text &
context of this Section and therefore, such a contention
cannot be countenanced without little manhandling this
20
Section; the Apex Court in People's Union for Civil Liberties
Vs. Union of India, (2013) 10 SCC 1 reiterating Jyoti Basu
supra held that the right to elect fundamental though it is to
democracy is anomalously enough, neither a fundamental right
nor a common law right; outside of statute, there is no right to
elect, no right to be elected, no right to dispute an election;
being statutory creations, these rights are subject to statutory
limitations; as such, the RP Act is regarded as a complete and
self-contained code within which must be found any rights
claimed in relation to an election or an election dispute; thus,
the limitation which the Returned Candidate intends to clamp
on the defeated one cannot be read into the Act, by
interpretative process.
(iv) The contention of Mr.Haranahalli and
Mr.Nanjunda Reddy that the disqualification howsoever short,
would render Prayer (c) in the petition untenable and
infructuous, is not supported by the text of Article 191 of the
Constitution, either; if the Constitution Makers intended that
once there comes such a disqualification regardless of its
shortness, an Election Petitioner cannot maintain a prayer for
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the declaration that he or any other candidate be declared
elected, a suitable provision to that effect would have been
enacted; such a provision is conspicuously absent; as
already mentioned above, the area of legislation relating to
disqualification inter alia of the kind in question has been
entrusted to the Parliament, which too in its wisdom has not
made a provision which the Returned Candidate could have
derived succor from; their contention that what if the Election
Petition was disposed off on the day the original order of
disqualification was in force, does not merit consideration
since the Election Petition staring at the hypothesis still
pends and that the disqualification apparently has spent
itself; in construing the election law as enacted, ordinarily,
the "ifs and buts" need to be kept at a bay;
(v) the general norm of adjudication that the rights of
the parties should be adjudicated as they existed on the date
of institution of the case, too does not come to the rescue of
the Returned Candidate; perhaps the contention of the kind
would have merited deeper examination, again subject to
result of the Appeal filed or contemplated against the
22
disqualification if the petition were to be disposed off during
the subsistence of disqualification; this can be better
visualized if it is assumed that the Appeal of a disqualified
candidate filed u/s 11 of the Act was allowed absolutely and
the disqualification order made u/s 10A was removed ab
inceptio.
Note: The contention structured on the basis of the
aforesaid Disqualification Order made by the Speaker even
otherwise pales into insignificance since the Prayer (c) is
being struck off on the sole ground that there is no statement
of material facts pleaded in the Petition, in support thereof.
In the above circumstances, the application filed by the
Returned Candidate namely Sri.Munirathna in I.A.No.4/2019
u/s 151 of CPC r/w Sections 86 & 87 of R.P. Act for striking
out the Prayer (c) from the petition deserves to be allowed.
IV) AS TO APPLICATIONS OF THE RETURNED
CANDIDATE IN I.A.NO.2/2019 FOR REJECTION OF
PETITION AND IN I.A.NO.3/2019 FOR STRIKING OUT
PARAGRAPHS 8 TO 30 OF THE PETITION:
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a) It is a settled legal position that all “material facts”
must be pleaded by the party in support of the case set up by
him, the object being the enablement of the opposite party to
know the case which he has to meet; in the absence of
pleading, a party cannot be allowed to lead evidence; in other
words, an Election Petition invariably has to contain a concise
statement of “material facts”, which supports the prayer made
therein, vide: Anil Vasudev Salgoankar vs. Naresh Kushani
Shiggaonkar, 2009 (9) SCC 310.
b) It is basic to the law of elections and Election
Petitions that in a democracy, the mandate of people as
expressed at the hustings must prevail; that is why the
election of a successful candidate is not lightly interfered
with; a heavy onus lies on the election petitioner to make out
a cogent case for setting aside the election of a successful
candidate both in terms of pleadings and at the trial, as the
consequences flowing from the proof of such electoral practice
are serious; the proof is not by the preponderance of
probability, but on the strict norm that the guilt should be
24
proved to the hilt, as obtaining in criminal jurisprudence vide:
R.P.Moidutty vs. P.T.Kunju Mohammed (2000) 1 SCC 481.
c) The above apart, a charge of corrupt practice has
a two-dimensional effect: its impact on the Returned
Candidate has to be viewed from the point of view of the
candidate's future political and public life, and from the point
of view of the electorate to ensure the purity of the election
process; there can, therefore, be no doubt that such an
allegation involving corrupt practice must be viewed very
seriously and the compliance with requirement of Section 83
of the RP Act has to be ensured before the trial commences
vide F.A.Sapa Vs. Singora, AIR 1991 SC 1557.
d) The Apex Court in F.A. Sapa supra while
considering the validity of affidavits that an Election Petition
should be supported with, has observed as under:
"From the text of the relevant provisions of the R.P. Act, Rule 94-A and Form 25 as well as Order 6 Rule 15 and Order 19 Rule 3 of the Code and the resume of the case law discussed above it clearly
emerges - (i) a defect in the verification, if any, can be cured (ii) it is not essential that the verification clause at the foot of the petition or the affidavit accompanying the same should disclose the grounds or sources of information in regard to the averments
25
or allegations which are based on information believed to be true (iii) if the respondent desires better particulars in regard to such averments or allegations, he may call for the same in which case the petitioner
may be required to supply the same.....".
e) The above legal position and propositions set the
tone for consideration of the applications filed by the
Returned Candidate seeking rejection of the petition, and in
the alternative for striking out paragraph Nos.8 to 30 therein;
petitioner at several paragraphs has stated about the corrupt
practices allegedly perpetrated by the Returned Candidate;
paragraph No.7 mentions about illegal collection of voter
identity cards/EPIC cards, manipulation of election identity
cards and Form No.6 Acknowledgements; paragraph Nos.11,
12 & 13 mention about the Returned Candidate gifting
cookers, cooking tavas, water-cans and sarees for influencing
the voters; they also mention about seizure of these and other
things by Nandini Layout police vide Crime No.169/2018.
f) Paragraph Nos. 16 to 19 speak about the
Returned Candidate employing the workforce for fabricating
fake identity cards and acknowledgements by using laptops,
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