Karnataka High Court
Sri C Muniraju vs Sri S N Subbareddy on 16 February, 2026
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
1 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16th DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE Mr. JUSTICE M.G.S. KAMAL
ELECTION PETITION No.4 OF 2023
BETWEEN:
SRI. C MUNIRAJU
S/O T M CHINNAPPA
AGED ABOUT 44 YEARS,
R/AT NO.340/14, REDDY LAYOUT,
KONDAREDDYPALLI VILLAGE,
BAGEPALLI
CHIKKABALLAPURA DISTRICT
KARNATAKA-561 207.
...PETITIONER
(BY SMT.NALINA MAYEGOWDA, SENIOR ADVOCATE FOR
SRI. MANJUNATHA HIRAL., ADVOCATE)
AND:
1. SRI. S N SUBBAREDDY
ALIAS CHINNAKAYALAPALLI,
S/O S NANJUNDAREDDY
AGED ABOUT 56 YEARS,
R/AT CHINNAKAYALAPALLI VILLAGE
GULUR HOBLI,
BAGEPALLI-561 207
CHIKKABALLAPUR DISTRICT.
2. DR. A ANIL KUMAR
S/O DR A. RAMAPPA
AGED ABOUT 45 YEARS,
R/AT BEHIND FOREST OFFICE
7TH WARD, BAGEPALLI-561 207
CHIKKABALLAPUR DISTRICT.
2
3. DR. MADHU SEETHAPPA
S/O LATE V SEETHAPPA
AGED ABOUT 57 YEARS
R/AT NO.145,
GOLLAVARIPALLI VILLAGE
NAREMADDEPALLI POST,
BAGEPALLI-561 212.
CHIKKABALLAPUR DISTRICT.
4. SRI. T. MUNISWAMY ALIAS SAI
S/O THITTI NARASIMHULU
AGED ABOUT 41 YEARS
R/AT 14TH WARD
NEAR OLD WATER TANK
BAGEPALLI TOWN
BAGEPALLI-561 207
CHIKKABALLAPUR DISTRICT.
5. SRI. C. KRISHNA REDDY
S/O LATE CHANNAPPAREDDY
AGED ABOUT 73 YEARS
R/AT NO.123,
KOTHAKOTE VILLAGE
KASABA HOBLI,
BAGEPALLI-561 207.
6. SRI. C. THIPPANNA
S/O LATE SATHYANARAYANAPPA
AGED ABOUT 44 YEARS
R/AT GANTAMVARIPALLI
HOSAHUDYA (PO)
BAGEPALLI-561 207.
CHIKKABALLAPUR DISTRICT.
7. SRI. RAJESH D V ALIAS UPENDRARAJU
S/O VENKATANARAYANA
AGED ABOUT 34 YEARS
R/AT 7TH WARD,
EX MLA ROAD
BAGEPALLI-561 207
CHIKKABALLAPUR DISTRICT.
3
8. SMT. ARUNA D., W/O PRASAD D.,
AGED ABOUT 38 YEARS
R/AT NO.21ST WARD
BAGEPALLI-562 101
CHIKKABALLAPUR DISTRICT.
9. SRI. S N GOVINDAREDDY
S/O LATE NANJAPPA
AGED ABOUT 62 YEARS
R/AT NO.873, 5TH MAIN ROAD,
TULASI TALKIES ROAD
CHOWDESHWARI LAYOUT
MARATHAHALLI
BANGALORE-560 037.
10 . SRI. NARENDRA A.N.,
S/O P NARASIMHAPPA
AGED ABOUT 36 YEARS
R/AT APPIREDDYHALLI VILLAGE,
VARALAKONDA POST,
SOMENAHALLI HOBLI
GUDIBANDE TALUK-562 104.
11 . SRI. MITHUN REDDY
S/O LATE RAMESH C.,
AGED ABOUT 34 YEARS
R/AT DOOR NO.338,
3RD CROSS, NAGAMMA LAYOUT
BELLANDUR
BANGALORE-560 103.
12 . SRI. K. LAKSHMINARASIMHACHAR
ALIAS MITTEMARI
S/O KONDAMACHAR
AGED ABOUT 42 YEARS
R/AT MITTEMARI VILLAGE AND POST,
BAGEPALLI TALUK -561 207
CHIKKABALLAPUR DISTRICT.
13 . SRI. SHREERAMA G V
S/O VENKATARAYAPPA
AGED ABOUT 27 YEARS
R/AT NO.42 GONDIPALLI
BHAGEPALLI TALUK, PATHAPALYA
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CHIKKABALLAPURA
KARNATAKA-561 212.
14 . SRI HARISHA M
S/O MUTHRAYAPPA
AGED ABOUT 32 YEARS,
R/AT GUMMANAYAKANAPALYA GRAMA,
THOLLAPALLI POST, PATHAPALYA HOBLI,
BAGEPALLI TALUK-561212
CHIKKABALLAPUR DISTRICT.
...RESPONDENTS
(BY SRI. JAYAKUMAR S. PATIL, SENIOR ADVOCATE FOR
SRI. D.P. MAHESH COUNSEL., ADVOCATE FOR R1;
R2, R3, R4, R6, R7, R9, R12 AND R13 ARE SERVED BUT
UNREPRESENTED;
R5, R11, R14 HELD SUFFICIENT)
THIS ELECTION PETITION IS PRESENTED UNDER SECTIONS
80, 81, 100, 101 R/W SECTION 123 OF THE REPRESENTATION OF
PEOPLES ACT, 1951, BY SRI. C. MUNIRAJU PETITIONER-CANDIDATE
ALONGWITH HIS COUNSELS SRI. MANJUNATHA HIRAL, MRS.
ARPITHA ANANTHRAM H M, MS. ANUSHA B. REDDY AND MR. AKSHAY
MITHANTAYA (ADVOCATES FOR PETITIONER) BEFORE THE
REGISTRAR (JUDICIAL) ON 24.06.2023 (THE PROCEEDINGS OF
REGISTRAR (JUDICIAL) IS AT PAGE NO.5 OF THE PETITION),
CHALLENGING THE ELECTION OF RESPONDENT SRI. S.N.
SUBBAREDDY AND OTHERS, FROM 140-BAGEPALLI ASSEMBLY
CONSTITUENCY, 2023 TO THE KARNATAKA LEGISLATIVE ASSEMBLY
2023 AND THE PETITIONER PRAYS THIS HON BLE COURT TO -
i) SET ASIDE THE ELECTION OF THE RESPONDENT NO.1 TO THE 16TH
KARNATAKA LEGISLATIVE ASSEMBLY FROM 140 - BAGEPALLI
ASSEMBLY CONSTITUENCY.
(ii) DECLARE THE PETITIONER AS DULY ELECTED TO FILL THE SEAT
OF KARNATAKA LEGISLATIVE ASSEMBLY FROM 140-BAGEPALLI
ASSEMBLY CONSTITUENCY.
THIS ELECTION PETITION HAVING BEEN HEARD AND RESERVED
ON 05.02.2026 FOR ORDERS, COMING ON FOR PRONOUNCEMENT
THIS DAY, MADE THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL
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CAV ORDER
Petitioner, who had unsuccessfully contested the election
to the 16th Karnataka Legislative Assembly Elections held on
10.05.2023 from 140-Bagepalli Assembly Constituency as a
candidate from Bharatiya Janata Party has filed the present
petition challenging the election of Respondent No.1, who was
declared elected in the said election as a candidate from Indian
National Congress and is seeking following reliefs:
(i) To set-aside the election of the Respondent
No.1 to the 16th Karnataka Legislative
Assembly from 140-Bagepalli Assembly
Constituency;
(ii) Declare the petitioner as duly elected to fill
the seat of Karnataka Legislative Assembly
from 140-Bagepalli Assembly Constituency;
(iii) Pass such other Order/s as this Hon'ble
Court deems fit in the facts and circumstances
of this case.
2. Brief facts of the case of the petitioner is as under:
2.1 That the Respondent No.1 in his Form 26 Affidavit filed
along with his nomination papers on 20.04.2023 has not
disclosed up-to-date details of all his assets and liabilities
including that of his wife and dependant daughter. That he has
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suppressed material information regarding various business
entities registered in his name and in the name of his wife. That
he has not disclosed details of all the properties owned by him
and his wife and dependant daughter. That he has claimed to
be the owner of the property which does not belong to him.
That he has not disclosed the true value of the properties. That
he has defaulted on several dues payable to the Statutory
Authorities.
2.2 That non-disclosure of the assets and liabilities of the
Respondent No1, his wife and the dependant daughter has
resulted in interference with the free exercise of electoral right
and thereby Respondent No.1 has committed corrupt practice
as contemplated under Section 123(2) of the Representation of
People Act, 1951 (hereinafter referred to as `R.P. Act', 1951 for
brevity).
2.3 That in view of non-disclosure and false information in
Form 26 Affidavit at Serial Nos. 4, 7 and 8, the Returning
Officer ought not to have accepted the nomination filed by the
Respondent No.1.
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2.4 That in view of suppression of the facts, election of
Respondent No.1 has materially affected the petitioner, as such
he is entitled to be declared as the returned candidate under
Section 101 of the R.P. Act, 1951.
2.5 At paragraph 16 of the petition, petitioner has enumerated
the details of non-disclosure of assets and liabilities and the
details of false information by Respondent No.1 in Form 26
Affidavit which are as under:
I. Non-disclosure of up-to- date account balance in respect
of savings accounts of himself, his wife and daughter;
II. Non-disclosure of businesses and corresponding current
account balance relating to Respondent No.1;
III. Non-disclosure of businesses and corresponding current
account balance relating to Respondent No.1's Wife;
IV. Non-Disclosure of Loans advanced by the Respondent
No.1;
V. False information in relation to agriculture properties at
Sl. No. 7(B) (i) of Form 26 Affidavit with respect to lands
owned by the Respondent No.1 and his daughter;
VI. Non-Disclosure in relation to agriculture properties at Sl.
No. 7(B) (i) of Form 26 Affidavit relating to Respondent
No.1's Wife:
VII. Non-Disclosure of Non-Agriculture Properties at Sl. No.
7(B) (ii) of Form 26 Affidavit relating to Respondent
No.1;
VIII. False Information in relation to valuation of Properties at
Sl. No.7 of Form 26 Affidavit;
IX. Non-Disclosure of GST dues at Sl. No.8 of Form 26
Affidavit;
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X. Non-Disclosure in relation to late fee due and payable by
the Respondent No.1 under Section 47 of CGST Act;
XI. Non-Disclosure of Assets in relation to Bhagini
Hospitalities Private Limited wherein the Respondent
No.1 and his wife are the Directors:
XII. False Declaration of Income Tax Return at Sl.No.4 of
Form 26 Affidavit in relation to Respondent No.1 and his
wife;
XIII. Non-Disclosure of Offshore Assets of Respondent No.1;
XIV. Respondent No.1 has indulged in Corrupt Practice as
defined under Section 123 (1) of the RP Act;
XV. Non-Disclosure of Statutory Dues at Sl. No. 8 in respect
of properties declared at Sl.No.7 of Form 26 Affidavit;
2.6 At paragraphs 17 to 82 of the petition, petitioner has
provided details of each of the non-disclosure/ false information
enlisted above. The same are dealt with in this order while
adverting to issues framed.
2.7 At paragraph 83 petitioner has contended that in view of
non-disclosure and false information, the Returning Officer
ought not to have accepted the nomination.
2.8 At paragraph 84 it is contended that if the fact of non-
disclosure and false information was made known to the
voters/electors they would have definitely rejected the
candidature of the Respondent No.1. The same has materially
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affected the election of Respondent No.1. As such, petitioner is
entitled to be declared as returned candidate under Section 101
of the R.P. Act, 1951.
Contending as above, petitioner has sought for allowing of the
petition.
WRITTEN STATEMENT:
3. In his written statement Respondent No.1 while denying
the petition averments and allegations, referring to Section 83
of the R.P. Act, 1951, contended that the election petition shall
contain concise statement of material facts and particulars.
That the petition does not set forth full particulars of all the
alleged action and omissions said to have been committed by
the elected candidate.
3.1 That an election can be set aside only on the grounds
provided under Section 100 of the R.P. Act, 1951. Corrupt
practice is one such ground provided under the said provision
and the same is provided under Section 123 of the R.P. Act,
1951. The facts pleaded and particulars stated in the election
petition do not constitute "corrupt practice" under Section 123
of the R.P. Act, 1951.
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3.2 That the Respondent No.1 has not committed any corrupt
practice. That he has disclosed all the assets and liabilities as
required in Form 26 Affidavit at the time of filing of the
nomination. That he has neither suppressed any information
nor furnished any false information in Form 26 Affidavit.
3.3 That there is no requirement of disclosure of assets and
liabilities in Form 26 affidavit under Section 33 and 33A of the
R.P. Act, 1951. That the requirement of disclosure is traceable
to the direction issued by the Election Commission of India and
the judgment of the Apex Court affirming such direction. Non-
disclosure or faulty compliance of this requirement is not a
ground for setting aside an election under Section 100 of the
R.P. Act, 1951.
3.4 Adverting to paragraph 16 of the election petition, it is
contended that though the petitioner has enumerated totally 15
items in relation to alleged non-disclosure or false information
in Form 26 Affidavit of the Respondent No.1, petitioner has not
furnished the complete details and the material for any of the
alleged non-disclosure.
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3.5 As regards allegation of non-disclosure of up-to-date
account balance in respect of Savings Account of Respondent
No.1, his wife and dependant daughter, it is contended that
immediately after release of Press Note by his political party on
25.03.2023 selecting candidates for 124 constituencies
including the present constituency, Respondent No.1 started
preparing the Form 26 Affidavit giving the details of the bank
accounts of himself and his wife and daughter upto 31.03.2023.
Though, the same was filed on 20.04.2023, there was no
suppression of any details in that regard.
3.6 As regards the allegations of non-disclosure of business and
corresponding current account balance relating to Respondent
No.1 as well as his wife, it is contended that though Form 26
Affidavit does not require disclosure of current account details,
however, the total amount in account is disclosed. These being
the business accounts of proprietary concern of the Respondent
No.1, the total amount put together is shown in the Form 26
affidavit.
3.7 As regards the allegation of non-disclosure of the loan
advanced by Respondent No.1 to Smt.Suma Ranganath and
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Sri.Y.A.Narayanaswamy it is contended that the Respondent
No.1 had given a personal loan to Smt.Suma Ranganath on
06.03.2020. Since the same is treated as a bad debt since
barred by time, it has not been disclosed.
3.8 That the entire loan amount which was advanced to said
Y.A.Narayanaswamy has been repaid. After that no monetary
transactions have taken place between Respondent No.1 and
Y.A. Narayanswamy and the loan account is closed. Therefore,
there is no mention about such details.
3.9 As regards the allegation of false information in relation to
agricultural properties at Sl.No.(7)B(i) in Form 26 Affidavit with
respect to lands owned by Respondent No.1 and his daughter, it
is contended that though inadvertently Sy.No.21 is not
mentioned, Respondent No.1 has purchased two items i.e.
Sy.No.19 measuring 2 acres 32 and 22 and 1/2 guntas,
Sy.No.21 measuring 2 acres 22 and 1/2 guntas, under the deed
of sale dated 09.03.2006 registered on 10.03.2006 for a total
sale consideration of Rs.10,00,000/-. That total value of both
the items of the property was Rs.11,00,970/- and the same is
shown in the Form 26 Affidavit of Respondent No.1. There is no
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deliberate intention for Respondent No.1 in not disclosing the
details of Sy.No.21 of Basabathanahalli Village, Hosakote Taluk,
Bangalore District.
3.10 Regarding the allegation pertaining to non mentioning of
survey numbers at Sl.No.(7)B(i)(d), it is stated that Respondent
No.1 by oversight has mentioned Sy.No.15 instead of Sy.No.5
to which he is the owner. That it was only a typographical error
and Respondent No.1 has not done the same deliberately. That
land in Sy.No.5 of the Basabathanahalli Village, Hosakote Taluk,
is measuring 38 guntas and 1 gunta of kharab land. Whereas,
land in Sy.No.15 is measuring around 3 acres 15 guntas and
the Respondent No.1 is not the owner of the same, which is
evident from the RTC produced by the petitioner himself. That
total extent of land in Sy.Nos. 13, 16, 20, 19, 17, 18 and 5 is
19 acres 11 and a half guntas which is the actual extent
declared by Respondent No.1 in Form 26 Affidavit. Though
inadvertently instead of Sy.No.5, Sy.No.15 is mentioned the
total extent shown by the Respondent No.1 tallies with the
extent owned by him.
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3.11 Adverting to allegation with respect to land bearing
Sy.No.9/1 measuring 1 acre 37 guntas situated at
Chinnakayalapalli Village, Bagepalli Taluk, Chikkaballapur
District, it is contended that said Srinivas Reddy is the brother
of Respondent No.1, as there are certain inter se disputes
between Respondent No.1 and his brother with regard to
sharing of the properties, the same is shown in the affidavit as
the property of Respondent No.1.
3.12 As regards the allegation of non-disclosure of land in
Sy.Nos.173, 174, 138/2, 158/2, 172 and 157 of Kothakote
Village, it is contended that the land has been recently
converted from agricultural to non-agricultural purposes.
Respondent No.1 has by oversight shown the above said lands
as agricultural lands. That since no non-agricultural activities
have taken place, the said land is shown as agricultural land.
There is no suppression of any information.
3.13 As regards the allegation of non-disclosure of acquisition
of property relating to the wife of the Respondent No.1, it is
contended that his wife under two deeds of sale, both dated
09.11.2011 has purchased an extent of 1 acre 8 guntas and 1
15
acre 27 guntas of land in Sy.No.12 of Basabathanahalli Village,
Hosakote Taluk, Bengaluru Rural District. That apart from the
said 2 acres 35 guntas of and no other extent is owned by her.
3.14 As regards allegation of non-disclosure of non-agricultural
properties at Sl.No.(7)B(ii) of Form 26 Affidavit relating to
Respondent No.1, it is contended that there is a dispute
between the Respondent No.1 and his brother Srinivas Reddy
with respect to Sy.No.138/1 which was a self-acquired property
of the deceased father of Respondent No.1. Hence the same is
not disclosed in Form 26 Affidavit.
3.15 As regards the allegation of Respondent No.1 declaring
he owning 8 acres of land in Sy.No.32/1 and not declaring
other extent of 8 acres of land owned by him in Sy.No.32/9 of
Chokkanahalli, it is contended that Respondent No.1 has
purchased only 8 acres of land in Sy.No.32/1 of Chokkanahalli
Village, Yelahanka under deed of sale dated 15.01.2009. Apart
from the above 8 acres in Sy.No.32/1, no other extent is owned
by Respondent No.1. He is not the owner of land in Sy.No.32/9.
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3.16 As regards the allegation of Respondent No.1 furnishing
false information in relation to valuation of properties in Sl.No.7
of Form 26 Affidavit, it is contended that Respondent No.1 has
furnished the correct valuation of the properties and has not
undervalued any properties.
3.17 As regards the allegation of non-disclosure of GST dues at
Sl.No.8 of Form 26 Affidavit it is contended that the payment
and penalty or late fee arises only when there is a demand from
the statutory authorities and as there was no demand or notice
from the competent authorities, the same would not be
disclosed in Form 26 Affidavit.
3.18 As regards the allegation of non-disclosure of the assets
in relation to Bhagini Hospital's Pvt. Ltd., of which Respondent
No.1 and his wife who are the directors, it is contended that
Bhagini Hospital Pvt. Ltd. is a company, details of which are not
required to be disclosed in Form 26 Affidavit. What is required
under law to be disclosed with regard to a private limited
company has been disclosed in Form 26 Affidavit. Hence there
is no suppression or non-disclosure of the assets and liabilities.
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3.19 As regards the allegation pertaining to false declaration of
income tax returns at Sl.No.4 in Form 26 Affidavit, it is
contended that Respondent No.1 has furnished all the details
and there are no false declaration in respect of income tax
returns at Sl.No.4. It is the responsibility of the company to file
its financials and annual returns and the same is not required to
be disclosed by the Respondent No.1 in Form No. 26 affidavit.
Hence the allegations are denied.
3.20 As regards the allegation of non-disclosure of offshore
assets of Respondent No.1, it is contended that neither does the
Respondent No.1 own any assets in the foreign country nor
does he hold any deposits in the foreign banks.
3.21 As regards the allegation on the Respondent No.1
indulging in the corrupt practice as defined in Section 123(1) of
the R.P. Act, 1951, it is contended that based on a false
complaint, FIR came to be registered. After thorough
investigation into the complaint, the jurisdictional police have
submitted their final report/`B' report to the effect that
Respondent No.1 has not offered any illegal gratification or
attempted to induce any electors to vote in his favour. The `B'
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report was submitted to the Civil Judge at JMFC, Bagepalli
which was accepted by the Court on 07.10.2023. Perusal of the
report discloses that a false complaint was lodged and the same
did not disclose any cause of action much less the corrupt
practice contemplated under Section 123(1) of the R.P. Act,
1951.
3.22 As regards the allegation of non-disclosure of the
statutory dues at Sl.No.8 in respect to properties declared at
Sl.No.7 of the Form 26 Affidavit, it is contended that as there
was no demand notice from the authority there was no need to
disclose the same in the Form 26 Affidavit.
3.23 As regards averment in paragraph 83 of the petition, it is
contended that petitioner has not averred the material facts and
has also not produced the material particulars as to how the
Respondent No.1 has interfered with the free exercise of the
electoral right and how it has materially affected the election in
question.
3.24 As regards allegation regarding improper acceptance of
nomination, it is contended that the Returning Officer has
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rightly accepted the nomination of Respondent No.1 after
scrutiny and after ascertaining that the Respondent No.1 has
furnished all the details as required under law.
3.25 It is further contended the Respondent No.1 has won the
present election with a margin of 19,179 votes. That the total
votes secured by Respondent No.1 is 82,128 and total votes
secured by the petitioner is 62,949. When the Respondent No.1
has secured margin of 19,179 votes petitioner nowhere in the
petition has averred as to how the alleged suppression would
have materially affected the result of the election and how he
would have got such a majority votes because of alleged non-
disclosure. When such material facts are lacking in the petition
the same is liable to be dismissed.
ISSUES:
4. Based on the pleadings, this Court has framed the following
issues:
"(1) Whether the petitioner proves that the
Respondent No.1 has given a false declaration and has
failed to disclose the assets and liabilities in his Form
26 Affidavit as alleged in paragraphs 16 to 80 of the
election petition?
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(2) Whether the petitioner proves that the false
declaration and non-disclosure of the assets and
liabilities by the Respondent in Form 26 affidavit as
alleged in the election petition amounts to corrupt
practice as contemplated under subsection (1) and
subsection (2) of Section 123 of the Representation of
Peoples Act, 1951, materially affecting the result of
election?
(3) Whether Respondent No.1 proves that he has
substantially complied with the requirement of
disclosure of assets and liabilities in his Form 26
Affidavit and that false declaration and non-disclosure
of the assets and liabilities as alleged by the petitioner
is not a ground for setting aside the election under
Representation of Peoples Act, 1951?
(4) Whether the petitioner has made out a case for
grant of reliefs as sought for?
(5) What order?"
ADDITIONAL ISSUE:
"Whether the acceptance of nomination papers of
Respondent No.1 by the Returning Officer is
improper?"
5. Petitioner has examined himself as PW1 and has also
examined another witness, Smt.Lakshmi Devi-Joint
Commissioner of BBMP as PW.2. Petitioner has produced 48
documents marked as Ex.P1 to Ex.P48. During cross-
examination of PW1 seven documents have been confronted
and marked as Ex.R1 to Ex.R7. Through, PW2 documents at
Ex.P49 to Ex.P121 have been marked. Respondent No.1 has
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examined himself as RW1 and has exhibited 14 documents
marked as R1 to R14.
FINDINGS ON THE ISSUES:
Issue No.1 - Partly affirmative
Issue No.2 - Partly affirmative
Issue No.3 - Partly affirmative
Issue No.4 - Partly affirmative
Additional Issue: In the negative
SUBMISSIONS:
6. Smt.Nalina Mayegowda, learned Senior counsel appearing for
the petitioner taking this Court through the records and the
depositions submitted that;
6.1 Admittedly Respondent No.1 has not disclosed the up-
to-date account balance in Sl.No.(7)A(ii) of Form 26 Affidavit.
That the Respondent No.1 was required to disclose account
balance in the current accounts. That the Respondent No.1 was
having business transactions in the names of five entities
namely; (1) R and R Bar and Restaurant, (2) Bhagini
Residency, (3) Srinivasa Wines, (4) Bhagini Palace, (5)
Wholesale Liquor Proprietorship Concern. Similarly, wife of
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Respondent No.1 having business in the name and style of 'Mini
Bar and Restaurant'. That neither the names of these business
entities nor the current account status for the said business
entities have been disclosed either under Clause (7)A(ii) or
(7)A(iii) of the Form 26 Affidavit.
6.2 Referring to Master Circular dated 01.07.2009, issued by
the Reserve Bank of India produced along with written synopsis
as per Annexure-B, she submitted that the deposit account
includes Savings Account, but does not exclude any other type
of deposit account, such as Current Account. That the
contention of the respondent No.1 with regard to
announcement of candidature on 25.03.2023 so also the date of
election i.e., 10.05.2023 is immaterial for the purpose of
disclosure of the account balance. The objective is to provide
up-to-date information vis-Ã -vis assets and liabilities. Even the
cross-examination of RW.1 discloses that there is categorical
admission of the current account balance not having been
disclosed.
6.3 That at Sl.No.(7)B(i) of the Form 26 Affidavit, there are
false information regarding agricultural properties which has
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been admitted by the Respondent No.1. The agricultural
properties in question were converted way back in the year
2022, as such denoting them as agricultural property with a
lesser valuation was deliberate.
6.4 That annual returns of aforesaid five business concerns in
Form No.GSTR-9 was not filed for the year 2020-2021 onwards
and GSTR-3B in relation to Srinivasa Wines was filed belatedly
for two months as such late fee was due and the same was not
disclosed. That Section 44 and 47 of the CGST Act stipulates
that the GSTR-9 are to be filed for each of financial years within
the due date prescribed. That the conduct of Respondent No.1
in filing the return subsequent to filing of the election petition
and suppressing such information in pleading shows malafide
intent.
6.5 That there are no pleading to the effect that due to COVID
situation or for possible waiver of GST, returns were not filed.
That intention is immaterial. That financial statements/annual
returns for the period beyond 31.03.2020 were not filed as on
the date of filing of the nomination. That the allegation made
stands proved as the same has neither been denied nor
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rebutted. Similar is the situation with regard to income tax
returns not having been filed which is neither denied nor
rebutted.
6.6 That as per the details at Sl.No.(7)B(ii), Respondent No.1
and his wife own 6 non-agricultural properties, 8 commercial
buildings, 2 residential properties. Respondent No.1 has not
paid the property tax in respect of the said properties as
evidenced by the documents produced through PW.2 as per
Exs.P57 to 60, 67 to 72, 80 to 84, 94 to 96, 106 to 108, 118 to
120. However, a false declaration is made that there are no
dues towards the property tax. That the contention of
Respondent No.1 that since there was no demand, the same
was declared as 'Nil' is incorrect in the light of provisions of
Sections 2(41), 144(8) and 148 of Bruhat Bengaluru
Mahanagara Palike Act, 2020 wherein it is an obligation of the
land owner to pay the property tax as and when it becomes
due. Absence of demand does not mean that the property tax
was not due.
6.7 That though the property tax to the tune of
Rs.1,09,04,478/- paid during August 2023 and Rs.24,30,447/-
25
was paid on 24.07.202, in the Written Statement to this petition
which was filed on 05.12.2023, there is no whisper of property
tax being due or paid subsequent to the election. That in the
cross-examination at paragraphs 49 and 50 Respondent No.1
has attempted to mislead. In the background of pleading,
documents, evidence and the cross-examination, the ground
urged by respondent No.1 of COVID-19 and the purported
oversight for payment of property tax cannot be accepted.
6.8 That admittedly, there are series of errors in non-disclosure
and false information by the Respondent No.1, which cannot be
accepted being mere technical or due to oversight. That
Respondent No.1, who has not disclosed his account balance,
properties held by him and his dependents, who has neither
filed financial returns nor has paid the property tax and has
sworn to affidavit, is clearly guilty of corrupt practice.
6.9 That non-disclosure of assets and source and income would
amount to 'undue influence' a corrupt practice under Section
123(2) of R.P. Act, 1951. That even if one vote was secured by
returning candidate by indulging in corrupt practice, it is
sufficient to hold the election of the said returned candidate as
26
void. That single corrupt practice committed by the returned
candidate is sufficient to set aside the election.
6.10 Relying upon the provisions of Section 101(b) of R.P. Act,
1951, she submitted that since the Respondent No.1 is guilty of
corrupt practice, petitioner in addition to being entitled for relief
of declaration of election of Respondent No.1 to be void, he is
also entitled to be declared himself duly elected.
6.11 Following judgments are relied upon by the counsel for the
petitioner in justification of the aforesaid contentions:
1. RUKMINI MADEGOWDA Vs. KARNATAKA STATE
ELECTION COMMISSION reported in (2022) 18 SCC 1.
2. UNION OF INDIA Vs. ASSOCIATION FOR DEMOCRATIC
REFORMS AND OTHERS reported in (2002)5 SCC 294
3. LOK PRAHARI Vs. UNION OF INDIA reported in (2018)
4 SCC 699.
4. PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) Vs.
UNION OF INDIA, reported in (2003) 4 SCC 399.
5. AJMERA SHYAM Vs. KOVA LAXMI AND OTHERS,
reported in 2025 SCC ONLINE SC 1723.
6. KARIKHO KRI. Vs. NUNEY TAYANG AND OTHERS,
reported in 2024 SCC ONLINE SC 519.
7. KISAN SHANKAR KATHORE Vs. ARUN DATTATRAY
SAWANT AND OTHERS reported in (2014) 14 SCC
162.
27
8. VISHWANATHA REDDY Vs. KONAPPA RUDRAPPA
NADGOUDA AND OTHERS reported in 1968 SCC
ONLINE SC 20.
9. SYEDA NOOR FATIMA ZAIDI Vs. HEENA UROOZ AND
OTHERS reported in 2024 SCC ONLINE SC 4104.
10. RAHIM KHAN Vs. KHURSHID AHMED AND OTHERS
reported in (1974) 2 SCC 660.
7. Sri.Jayakumar S. Patil, learned Senior Counsel appearing for
the Respondent No.1, taking this Court extensively through the
records and the provisions of the R.P. Act, 1951, submitted
that;
7.1 The allegations of "corrupt practice" as defined under
Section 123 of the R.P. Act, 1951 must be pleaded with
precision and the evidence in that regard shall be beyond
reasonable doubt. Element of mens rea should be pleaded and
proved so as to constitute a corrupt practice. That the petitioner
except contending that Respondent No.1 has committed corrupt
practice, undue influence there is no pleading or evidence as
required under law.
7.2 Referring to Sections 123, 125A and Section 79 of R.P. Act,
1951, definition of "electoral right", learned Senior Counsel
submitted that from the provisions it is clear that in order to
28
allege corrupt practice of undue influence, petitioner has to
plead and prove as to how the returned candidate has directly
or indirectly interfered with electoral rolls with an intent to get
elected.
7.3 Referring to the judgment of the Apex Court in the case of
KRISHNAMOORTHY Vs. SHIVAKUMAR reported in (2015) 3
SCC 467, more particularly at paragraph No.58, it is submitted
that what is required to be considered is whether the returned
candidate has done any act which is intended to interfere with
the free exercise of the electoral rights with an intent to get
elected in an election and that will be the true and effective test
to decide whether the candidate is guilty of the undue influence
or not.
7.4 That there should be a greater significance to the words
"direct" and "indirect" "interference" or "attempt to interfere" as
free exercise of electoral rights has a nexus with the direct or
indirect interference or attempt to interfere. That the petitioner
is required to prove the intentional suppression or mens rea to
allege corrupt practice of undue influence which is not present
in the instant case.
29
7.5 The petitioner has not pleaded as to how the Respondent
No.1 has interfered with the electoral right that is to vote or
refrain from voting at an election by any electoral.
7.6 As regards acceptance of nomination, it is contended that
in terms of Section 36 of the R.P. Act, 1951, which deals with
scrutiny of nomination, all that requires to be looked into while
scrutiny of nomination is whether there was any defect which is
substantial in nature and whether the nomination is in
consonance with Section 33 and Section 33(A) of the R.P. Act,
1951. That once the nomination is filed and the same is in all
aspects is in accordance with Section 33 and Section 33A of the
R.P. Act, 1951, same cannot be termed as an improper
acceptance of nomination. The Returning Officer cannot reject
any nomination on the ground of defect which is not substantial
in character. That examination of acceptance of nominations,
even before the Election Tribunal should be strictly confined to
the parameters prescribed under Section 36(4) of the R.P. Act,
1951. If at all if there are any alleged defects in the nomination
paper, the same can be examined with reference to Section
100(1)(d)(iv) of R.P. Act, 1951, which deals with non-
30
compliance of the provisions of the Constitution or the Act or
the Rules or Order.
7.7 Referring to paragraph 9.10.2 of the Judgment of the Apex
Court in the case of Ajmera Shyam (supra) it is contended
that the acceptance of nomination of the Respondent No.1 was
proper and admittedly there was no objection either by the
petitioner or by any other candidate at the stage of scrutiny
pointing out any defect in the nomination paper of the
Respondent No.1. That unless defects which are substantial in
character are found, the Returning Officer is bound to accept
the nomination and the same cannot be construed as improper
acceptance.
7.8 That even assuming that there are alleged deficiencies
which are not substantial in character, the same do not fall
under the category of improper acceptance of the nomination
under Section 100(1)(d)(i) of the R.P. Act, 1951. On the other
hand it falls under the category of non compliance with
statutory provisions of Section 100(1)(d)(iv) of R.P. Act, 1951.
31
7.9 In response to reliance placed by the learned Senior
counsel for the petitioner on to the judgment of the Apex Court
in the Lok Prahari's case wherein it has been held that the
non-disclosure of the assets and liabilities amounts to corrupt
practice of undue influence, on the premise that the logic
adopted in Krishnamoorthy's judgment is applicable even in
respect of non-disclosure of the assets and liabilities, he
submitted that the same is without reference to the facts and
the context of Krishnamoorthy's case. It is contended that in
the case of Krishnamoorthy, the Apex Court has carefully
formulated the principles and category of the cases to which the
corrupt practice of undue influence would apply. Referring to
paragraph 94 of the said judgment, it is contended that the
Apex Court has categorically held that the question of undue
influence would arise only if returned candidate has not
disclosed criminal antecedent especially pertaining to heinous or
serious offences or the offences relating to corruption or moral
turpitude and not in other cases.
7.10 That the Apex Court in the case of Ajmera shyam
(supra) as well as in the case of Karikho kri (supra) has held
32
that when there is a substantial compliance and defect are
inconsequential in nature, election cannot be set aside. That the
Apex Court has further clarified the legal position with regard to
requirement of disclosure of criminal antecedent and disclosure
of assets and liabilities. That the Apex Court has also laid down
the legal principles in the said judgment.
7.11 That in the light of the parameters set down by the Apex
Court in the aforesaid decisions, the Respondent No. 1 has
disclosed his assets and liabilities substantially and there is no
false declaration, suppression or non-disclosure. That the
Respondent No.1 has declared his income worth several ₹100
crores. The alleged non-disclosure is of a negligible amount.
The same cannot be considered as a factor which would have
directly or indirectly caused effect or interference in the election
of the Respondent No.1. Electorate have reposed confidence
and faith in Respondent No.1 and have elected him for the third
time with a margin of 19,179 votes considering his good work
and reputation. There has been no allegations of malpractice,
corrupt practice or providing false information in entire political
career of Respondent No. 1.
33
7.12 As regards, the relief of declaration sought for by the
petitioner to declare himself as duly elected, he submitted that
there is no material pleading/averments in the election petition
as to the number of votes which have been casted in favour of
Respondent No.1, that would have gone in favour of the
petitioner. That in the absence of any such pleadings and proof,
petitioner is not entitled for such a relief. In any event, such a
relief cannot be granted when there are more than two
candidates for one seat.
7.13 Relied upon the following judgments in support of his
submissions:
1. VISHWANATH REDDY Vs. KONAPPA RUDRAPPA
NADAGOWDA reported in 1968 SCC Online SC 20
2. VATAL NAGARAJ Vs. R. DAYANAND SAGAR reported
in (1975) 4 SCC 127
3. THIRU JOHN Vs. THE RETURNING OFFICER AND
OTHERS reported in (1977) 3 SCC 540
4. D.K.SHARMA Vs. RAM SHARAN YADAV AND OTHERS
reported in 1993 Supp (2) 117
5. PRAKASH KHANDRE Vs. DR. VIJAY KUMAR
KHANDRE AND OTHERS reported in (2002) 5 SCC
568
6. MUNIRAJU GOWDA P.M. Vs. MUNIRATHNA AND
OTHERS reported in (2020) 10 SCC 192
34
Hence, sought for dismissal of the petition.
Regarding Issue Nos.1 and 3:
8. These two issues are taken up for analogous
consideration as they are interconnected.
8.1 Non-disclosure of up-to-date account balance by
the Respondent No.1 in respect of savings account
of himself, his wife and daughter as on the date of
filing of Form 26 Affidavit on 20.04.2023:
8.1.1 Allegation: That in the Form 26 Affidavit-Ex.P4,
Respondent No.1 has disclosed Savings Bank account balance
of himself, his wife and daughter only till 31.03.2023 though
Form 26 Affidavit was filed on 20.04.2023. There is no
disclosure of savings account balance for the period of 20 days.
8.1.2 Response: According to the Respondent No.1, the
elections were notified on 29.03.2023. His name was
announced by his political party on 25.03.2023. Soon thereafter
he had started preparation of Form 26 Affidavit which events
fell during the end of financial year 2022-2023 ending on
31.03.2023. Therefore, he has furnished details only upto
31.03.2023.
35
8.1.3 Evidence: Sl.No.(7)A(ii) of Form 26 Affidavit- Ex.P4
contains Savings Bank account details of Respondent No.1 and
his wife only upto 31.03.2023. The explanation given by the
Respondent No.1 in written statement has not been rebutted.
Even during cross-examination nothing is elicited in this regard.
8.1.4 Discussion/Analysis: There is no dispute that neither in
the R.P. Act, 1951 nor Rules nor even in the Form 26 Affidavit,
is there any mention or explanation with regard to what is "up-
to-date"? Learned Senior Counsel appearing for the petitioner
referring to Section 79(b) of the R.P. Act, 1951, with regard to
definition of "Candidate" and submitted that a person would be
a candidate who has been duly nominated as such at any
election. She also refers to Section 77 of the R.P. Act, 1951, to
contend that once a person is declared as a candidate, he is
required to either himself or by his election agent keep a
separate and correct account of all expenditures in connection
with the election incurred or authorized by him or his agent
between the date on which he has been nominated and the
date of declaration of the result. Therefore, she insists that the
term "up-to-date" shall be construed as the date on which he
36
had been nominated for election. As such, the Respondent No.1
was required to give his account details till the date he was
nominated. On the other hand learned Senior counsel appearing
for Respondent No.1 contended that since a press note was
issued by his political party selecting candidates for the election
including the name of the Respondent No.1 on 25.03.2023 it is
the said date which has to be taken into consideration. In any
event, he submitted that since there is no specific provision in
this regard either in the R.P. Act, 1951, or in the Rules, the
allegation of violation in this regard is unfounded.
8.1.5 Conclusion: Admittedly, the Savings Bank accounts
balance of Respondent No.1, his wife and daughter have been
disclosed in Ex.P4 upto 31.03.2023. Petitioner has neither
pleaded nor brought on record any material to show that there
was any addition to the Savings Bank accounts balance of
Respondent No.1 and his wife between 31.03.2023 and the
date of filing of nomination on 20.04.2023 i.e., for a period of
20 days. As such, this Court do not see any substantiality in
this allegation of non-disclosure of Saving Bank accounts
balance. Petitioner has thus failed to prove this allegation.
37
Respondent No.1 has proved substantial compliance in this
regard.
8.2 Non-disclosure of business and corresponding
current account balance account relating to
Respondent No.1 and his wife:
8.2.1 Allegations: Under this head, it is alleged that the
Respondent No.1 holds total of nine Goods and Service Tax
Identification Numbers (GSTIN), out of which five GSTINs are
shown to be ''active'' and remaining four to be shown
''inactive''. Five active GSTINs are relatable to; (1) R and R Bar
and Restaurant, (2) Bhagini Residency, (3) Srinivasa Wines, (4)
Bhagini Palace, (5) Wholesale Liquor Proprietorship Concern.
8.2.2 Similarly, it is alleged that wife of Respondent No.1 holds
three GSTINs being associated with her PAN number. Two out
of said three GSTINs are inactive and only one GSTIN is shown
to be active. One GSTIN which is active and relatable to the
wife of Respondent No.1 is "Mini Bar and Restaurant",
Baiyappanahalli, M.S. Nagar, Bengaluru, which is shown to be
active signifying that the wife of Respondent No.1 being
proprietor of the said business.
38
8.2.3 That Respondent No.1 in his Form 26 affidavit at
Sl.No.(7)A(ii) as well as Sl.No.(7)A(iii), has not only failed to
disclose the corresponding account balance of current accounts
through which business transactions are carried out by him and
his wife relating to aforesaid proprietorship concerns but has
completely suppressed their existence altogether.
8.2.4 That at Sl.No.(7)A(iii) he has merely disclosed he and his
wife having interests in four entities namely; (1). Bhagini
Hospitalities Pvt. Ltd., (2) Bhagini Enterprises (3) S.S.
Enterprises and (4) Bhagini Group of Hotels (5) having share in
Sreenidhi Souharda Sahakari Bank Niyamitha and (6) Bharath
Co-operative Bank.
8.2.5 Further at Sl.No.(7)A(iii) of the Form 26 Affidavit it is
mentioned that Respondent No.1 having working capital
investments in Bhagini Group of Hotels to the tune of
Rs.18,20,40,680/- excluding immovable assets and
corresponding loan amount outstanding. However, particulars of
immovable assets and corresponding loans in relation to
Bhagini Group of Hotels are not disclosed.
39
8.2.6 Response: Respondent No.1 has contended that
Sl.No.(7)A(ii) of Form 26 Affidavit merely requires disclosure of
details with respect to deposit in bank accounts (FDRs, Term
Deposits and all other types of deposit including Savings
accounts), deposits with financial companies and Co-operative
Societies and amount in each deposits. Similarly, Sl.No.(7)A(iii)
requires details of investments in Bond, debentures/ shares and
units in companies/mutual funds and others. That Sl.No.(7)A(ii)
does not require disclosure of current account details. That
though there is no such requirement of disclosing details of
current account in Form 26 Affidavit, total amount held by him
and his wife in the accounts is disclosed which is the amount
held in the business accounts of the proprietary concerns as
well.
8.2.7 Evidence: At Sl.No.(7)A(ii) of Form 26 Affidavit indicate
that the Respondent No.1 has given the details only with regard
to Saving Bank accounts of himself and his wife.
Savings bank accounts details of Respondent No.1 are as under:
1 Axis Bank, Marathahalli, Rs.54,30,822/-
2 HDFC Bank, Old Madras Road Rs.3,21,977/-
3 Indian Overseas Bank, Koramangala Rs.66,035/-
40
4 Srineedhi Souhardhya Sahakari Bank Rs.24,558/-
Niyamitha, Bommanahalli,
5 State Bank of India, Marathahalli Rs.7,15,553/-
6 Karnataka Cooperative Apex Bank Rs.4,02,823/-
Ltd.,
7 Corporation Bank, Bagepalli Rs.47/-
Savings Bank accounts details of Respondent No.1's wife are as
under:
1 Axis Bank, Marathahalli Rs.62,752/-
2 HDFC Bank, Old Madras Road Rs.1,04,472/-
3 Srineedhi Souhardhya Sahakari Rs.40,33,927/-
Bank Niyamitha, Bommanahalli,
4 Canara Bank Rs.1,46,129/-
8.2.8 There are no details as to whether the aforesaid balance
amounts include the current account balance pertaining to the
business accounts of either of Respondent No.1 or his wife.
8.2.9 Perusal of details of account particulars under
Sl.No.(7)A(iii) of Form 26 Affidavit indicate that the Respondent
No.1, has given the details as follows;
(i) Bhagini Hospitalities Pvt. Ltd., Equity Shares held by
him and his wife i.e., valued at Rs.9,00,50,000/- and
Rs.5,50,000/- respectively.
41
(ii) He has also disclosed Partners' Capital Account with
respect of Bhagini Enterprises in a sum of
Rs.33,69,426/- as on 31.03.2023.
(iii) S.S Enterprises Partner's Capital Account in a sum
of Rs.73,01,062/- held by him and Rs.47,44,375/-
held by his wife.
(iv) Net Working Capital Investment in Bhagini Group
of Hotels, he has disclosed Rs.18,20,40,680/- held by
him excluding immovable assets and corresponding
loans.
(v) He has also disclosed shares held by him in
Sreenidhi Souhardha Sahakari Bank Niyamitha valued
at Rs.5,53,450/- and shares held by his wife in the
said bank valued at Rs.1,500/- and has also shares held
by him in Bharath Co-operative Bank ltd., valued in a
sum of Rs.10,00,000/- and his wife holding shares of
Rs.5,000/-.
8.2.10 During the cross-examination while answering question
Nos. 8, 9, and 10 Respondent No.1 has admitted that he and
his wife are into Hotel and Liquor businesses. While answering
question Nos.21, 22 and 23, he has admitted that he has not
furnished the details of the current account pertaining to
aforesaid proprietary business concerns belonging to him and
42
his wife, though both hold current and saving accounts. Though
he claims that he has disclosed the money transactions
pertaining to both Savings Bank Account and Current Accounts
at Sl.No.(7)A(ii) of his Form 26 Affidavit the reference therein is
only to the Savings Bank accounts and not to the current
accounts as noted above. Relevant portion of his deposition is
as under;
7. I have been doing hotel and liquor business.
8. The said business is looked after by my son and other
employees.
9. My son is on his own. My wife and daughter are
dependants.
10. Both of them own properties. My wife is also doing
hotel business.
21. It is true to suggest that I have not furnished details of
current account held by me and my wife.
22. The proprietary business of myself and my wife hold
both current and savings account.
23. I have disclosed the money transaction pertaining to
both saving and current account.
8.2.11 Discussion/ Analysis: Perusal of Sl.No.(7)A(ii) of the
Form 26 Affidavit indicate requirement of disclosure of details of
deposits namely; FDRs, Term Deposits and "all other types of
deposits" including Savings accounts.
43
8.2.12 Sl.No.(7)A(iii)of the Form 26 Affidavit requires disclosure
of details of investments in bonds, debentures, shares and units
in companies, mutual funds, and others and the amount.
8.2.13 The terms 'all other types of deposits' would also include
"Demand Deposit", which is a deposit received by a bank
withdrawable on demand. As per Master Circular issued by the
Reserve Bank of India dated 01.07.2009, the term "Demand
Deposit" and "Current Account" are defined as under:
"Demand Deposit" shall mean a deposit received by the
bank which is withdrawable on demand.
"Current Account" shall mean a form of demand deposit
wherefrom withdrawals are allowed any number of times
depending upon the balance in the account or upto a
particular agreed amount and shall also be deemed to
include other deposit accounts which are neither Savings
Deposit nor Term Deposit."
Thus, the term "Demand Deposit" is defined to mean a form of
Demand deposit. The allegations of non-disclosure of
corresponding Current Account balance is therefore relatable to
the "Demand Deposit".
8.2.14 The requirement of disclosure either of business
entities/concerns or of corresponding Current Account balance
in Sl.No.(7)A(ii) of Form 26 Affidavit invariably pertain to and
44
relatable to business entities/concerns namely; (1) R and R Bar
and Restaurant, (2) Bhagini Residency, (3) Srinivasa Wines,
(4) Bhagini Palace, (5) Wholesale Liquor proprietorship concern
belonging to Respondent No.1 and Mini Bar Restaurant
belonging to his wife.
8.2.15 Similarly, Sl.No.(7)A(iii) which requires disclosure of
details of investments in Bonds, Debentures, Share and Units in
companies, mutual funds "and others" and "the amount" would
require Respondent No.1 to give the details of his business
investments in respect of the business concerns being carried
on under the name and style of (1) R and R Bar and
Restaurant, (2) Bhagini Residency, (3) Srinivasa Wines, (4)
Bhagini Palace, (5) Wholesale Liquor Proprietorship Concern
belonging to Respondent No.1 and Mini Bar Restaurant
belonging to his wife.
8.2.16 Conclusion: Admittedly there is neither disclosure of
aforementioned business entities/concerns nor the
corresponding current accounts balance amounts pertaining to
said business entities/concerns in Sl.No.(7)A(ii) as well as in
Sl.No.(7)A(iii) of Form 26 Affidavit.
45
8.2.17 Another crucial aspect of the matter is that at
Sl.No.(9)(a)(b) and (9A) of Form 26 Affidavit Respondent No.1
has declared details of his profession/occupation and sources of
his income and his wife as that of business. The said sources of
income are admittedly related to aforesaid business entities/
concerns, details of which have not been disclosed/declared by
him. Petitioner has thus proved the non-compliance of this
requirement and the Respondent No.1 has failed to prove any
compliance much less substantial compliance of this
requirement.
8.3. Regarding non-disclosure of loans advanced by
Respondent No.1:
8.3.1 Allegations: That in the Form 26 Affidavit filed by one
Dr.H.D.Ranganath, who had contested elections to 131-Kunigal
Constituency from Indian National Congress, in the very same
16th Karnataka State Legislative Assembly Election, 2023 and
was duly elected from the said Constituency, it is disclosed that
Respondent No.1 herein has advanced a loan of Rs. 20 lakhs to
Smt.Suma Ranganath Wife of said Dr.H.D.Ranganath. However,
46
Respondent No.1 has not disclosed the same at Sl.No.(7)A(v) of
his Form 26 Affidavit.
8.3.2 Similarly, Y.A. Narayanaswamy is the member of
Karnataka legislative Council from Southeast Teachers
Constituency in his Form 26 Affidavit filed during 2018
Legislative Assembly and legislative council election respectively
he has declared that a sum of Rs.22,78,874 has been advanced
to him by the Respondent No.1, which has not been disclosed
by him at Sl.No.(7)A(v) of his Form 26 Affidavit.
8.3.3 Respondent No.1 at Sl.No.(7)A(v) of his Form 26
Affidavit has only declared that he has advanced a loan of
Rs.95,09,09,522/- to Bhagini Hospitalities, Pvt. Ltd., and to no
other person/entity. It is alleged that by not disclosing the loan
given by him as on date of filing nomination paper and Form 26
Affidavit, Respondent No.1 has committed corrupt practice as
defined under Section 123 (2) of R.P Act, 1951.
8.3.4 Response: That the Respondent No.1 had given a
personal loan to Smt.Suma Ranganath on 06.03.2020. But the
same is treated as bad debt as it is barred by time. Therefore
47
he has not disclosed the said loan amount advanced to
Smt.Suma Ranganath.
8.3.5 As regards loan transaction with Y.A.Narayanaswamy, it is
contended that he had advanced loan of Rs.40,00,000/- on
07.01.2014 and Rs.25,00,000/- on 06.03.2014 totally
amounting to Rs.65,00,000/- to the Respondent No.1. Out of
the said amount, Rs.50,00,000/- was repaid on 17.12.2014,
Rs.12,50,000/- was repaid on 18.03.2015 and Rs.2,50,000/-
was repaid on 19.02.2015 to Y.A.Narayanswamy. After that no
monetary transactions have taken place between Respondent
No.1 and Y.A.Narayanswamy and the loan account was closed.
Therefore there is no mention about such details.
8.3.6 Evidence: Ex.P9, is Form 26 Affidavit of
Dr.H.D.Ranganath filed on 20.04.2023 along with his
nomination papers to contest the Elections from 131 Kunigal
Assembly Constituency, wherein 4th entry in Annexure-7 refers
to loan lent by Respondent No. 1 to Smt.Suma Ranganath in a
sum of Rs.20,00,000/-.
8.3.7 Respondent No.1 has claimed the he has treated the
same as time barred.
48
8.3.8 Ex.P10 is Form 26 Affidavit of Sri.Y.A.Narayanaswamy
dated 21.05.2018 filed along with his nomination papers to
contest Election for 158-Hebbal Assembly Constituency,
wherein at Sl.No.(7)B(8)(i) he has shown loan liable to be paid
by him to Respondent No.1 in a sum of Rs.22,78, 874/-.
8.3.9 Respondent No.1 has claimed to have received the entire
loan amount from the said Sri.Y.A Narayanswamy.
8.3.10 Conclusion: Nothing much of significance is elicited in
this regard in the cross-examination of RW-1 to discredit his
version. Petitioner has therefore failed to prove the same.
Response of Respondent No.1 in this regard is accepted.
8.4 False information in relation to agricultural
properties at Sl.No.(7)B(i) of Form 26 Affidavit with
respect to lands owned by Respondent No.1 and his
dependant daughter.
8.4.1 Allegation No.1: That the Respondent No.1 at
Sl.No.(7)B(i)(e) and (f) has declared, he owns an extent of 37.5
guntas and 1 acre 5 guntas of agricultural lands respectively in
Sy.No.21 situated in Basabathanahalli Village, Hosakote Taluk,
Bengaluru Rural District. Whereas the Record of Rights and
Encumbrance Certificate of Sy.No.21 discloses that further
49
extent of 2 acres 2 guntas of land standing in the name of
Respondent No.1. That the said land is purchased by
Respondent No.1 on 10.03.2006 in terms of a registered deed
of sale. However, the Respondent No.1 has deliberately not
disclosed the ownership of the said parcel of land in Form 26
Affidavit.
8.4.2 Response: Respondent No. 1 contended that under the
deed of sale dated 09.03.2006 he purchased two items of land
i.e., (i) Sy.No.19 measuring 2 acres 32.5 guntas and (ii)
Sy.No.21 measuring 2 acres 22.5 guntas, of Basabathanahalli
Village, Hosakote Taluk, Bangalore Rural District. The total sale
consideration paid in respect of the said two items of the
properties is Rs.10,00,000/. That total value of both the items
of the property was Rs.11,00,970/- and the same is shown in
the Form 26 Affidavit at Sl.No.(7)B(i)(b). That since both the
items are purchased under the same deed of sale due to
oversight only of Sy.No.19 is shown in the Form 26 Affidavit
and Sy.No.21 and its extent is not shown, which is neither
intentional nor deliberate as alleged by the petitioner.
50
8.4.3 Evidence: Ex.R2 is the copy of sale deed dated
09.03.2006 in terms of which Respondent No.1 has purchased
aforementioned two items of lands in Sy.Nos.19 and 21 for
Rs.10,00,000/-.
8.4.4 Ex.P12 is RTC extract which refers to three portions of
land in Sy.No.21 namely; (1) portion measuring 2 acres 22.5
guntas, (2) portion measuring 37.5 guntas and (3) portion
measuring 1 acre 5 guntas. These three portions of land in
Sy.No.21 are shown in the name of Respondent No.1. Ex.P13 is
the encumbrance certificate which refers to sale transactions in
respect of these items of land in Sy.No.21.
8.4.5 Conclusion: There is no disclosure of an extent of 2
acres 22.5 guntas of land forming part of Sy.No.21 in the Form
26 Affidavit. Though there is a mention of the deed of sale
dated 09.03.2006 under which the same was purchased,
necessary to note while disclosing the approximate market
value the Respondent No.1 at Sl.No.(7)B(i)(b)(c)(f) has given
the following details:
Sl.No. Details Value declared
1 Approximate value of 2 acres 32.5 guntas in Rs.58,00,000/-
Sy.No.19
2. Approximate value of 37.5 guntas in Sy.No.21 Rs.30,00,000/-
3. Approximate value of 1 acre 5 guntas in Rs.36,00,000/-
Sy.No.21
51
8.4.6 From the above, it is clear that there is not only a non-
disclosure of 2 acres 22.5 guntas of land in Sy.No.21 but also
there is no disclosure of approximate market value of the said
land. It appears on an average respondent No.1 has declared
approximate market value of these lands at about
Rs.30,00,000/- per acre. If non mentioning of 2 acres 22.5
guntas of land in Sy.No.21 though purchased along with
Sy.No.19 under Sale Deed dated 09.03.2006 was an oversight,
the respondent No.1 would have atleast disclosed the
approximate market value of the said extent of 2 acres 22.5
guntas of land which even according to his own estimation
would work approximately around Rs.30,00,000/- per acre.
Therefore the contention of Respondent No.1 having
substantially disclosed the information in this regard cannot be
accepted.
8.4.7 Allegation No.2: That at Sl.No.(7)B(i)(d) the
Respondent No.1 has declared, he owns a total extent of 19
acres 11.5 guntas of agricultural land collectively in Sy.Nos.13,
52
16, 20, 9, 17, 18 and 15 situated at Basabathanahalli Village,
Hosakote Taluk, Bengaluru Rural District.
8.4.8 In addition Respondent No.1 has also declared separately
that he owns land in Sy.No.13 and 19. That if the said parcel of
the land described at Sl.No.(7)B(i)(a),(e)and (b) is excluded
from the total extent of land shown in the RTC pertaining to the
Sy.Nos.13, 16, 20, 19, 17, 18 and 15, extent of land owned by
the Respondent No.1 would be 21 acres 28 guntas. However
Respondent No.1 has declared only an extent of 19 acres 11.5
guntas at Sl.No.(7)B(i)(d) of Form 26 Affidavit. The RTC
pertaining to Sy.No.15 denotes an extent of 3 acres 15 guntas
belonging to Respondent No.1 and name of the Respondent is
not shown.
8.4.9 Response: Respondent No.1 purchased items shown at
Sl.No.(7)B(i)(d) under a registered sale deed dated 13.12.2004,
which clearly discloses that Respondent No.1 owns only 19
acres and 11 and 1/2 guntas of land. However due to
inadvertence instead of Sy.No.5, Sy.No.15 is mentioned in Form
26 Affidavit. That total extent of land in Sy.Nos. 13, 16, 20, 19,
53
17, 18 and 5 is 19 acres 11 and 1/2 guntas which is the actual
extent declared by Respondent No.1 in Form 26 Affidavit.
8.4.10 That land in Sy.No.5 of the Basabathanahallii Village,
Hosakote Taluk, is measuring 38 guntas and 1 gunta of kharab
land, whereas, land in Sy.No.15 is measuring around 3 acres
15 guntas and the Respondent No.1 is not the owner of the
same, which is evident from the RTC produced by the petitioner
himself.
8.4.11 Evidence: Ex.R3 is Deed of Sale dated 13.12.2004
under which Respondent No.1 purchased lands in Sy.Nos.
13,16,20,19,17, 18 and 5 is 19 acres 11 and a half guntas.
Ex.P14 -RTC extract produced by the petitioner in respect of
Sy.No.15 of Basabathanahalli village for 3 acres 15 guntas do
not refer the name of the Respondent No.1.
8.4.12 Conclusion: Nothing is elicited in this regard to
disbelieve his version since total extend of land in these survey
numbers is found to be 19 acres 11 ½ guntas and in the
absence of anything contrary being brought on record,
allegation made in this regard is not proved by the petitioner.
54
8.4.13 Allegation No.3: That in Sl.No.(7)B(i)(g) of Form 26
Affidavit Respondent No.1 has declared that he owns an extent
of 1 acre 37 guntas of agricultural land in Sy.No.9/1 situated in
Chinnakayalapalli Village, Bagepalli Taluk, Chikkaballapur
District. However, from the RTC it is revealed that the said
property has been purchased by Sri.N.Srinivas Reddy, son of
Nanjundappa also known as Sri.S.Nanjundareddy. That even
though the property does not belong to the Respondent No.1, a
false declaration has been made in Form 26 Affidavit in this
regard.
8.4.14 Response: That the said land in Sy.No.9/1 was
purchased by Respondent No.1 on 19.03.1998. Though the RTC
stands in the name of N.Srinivas Reddy, who is the brother of
Respondent No.1, as there are certain inter se disputes between
Respondent No.1 and his brother with regard to sharing of the
properties, the same is shown in the Form 26 Affidavit as the
property of Respondent No.1.
8.4.15 Evidence: Ex.P15 is RTC extract in respect of Sy.No.9/1
reflecting name of Sri.N Srinivas Reddy son of Nanjunda Reddy.
55
Ex.R4 is copy of the deed of sale dated 19.03.1998 under
which the said land has been purchased by the Respondent
No.1 as claimed.
8.4.16 Conclusion: Nothing is proved or elicited by the
petitioner to contradict this version of the Respondent No.1.
8.4.17 Allegation No.4: That in Sl.No.(7)B(i)(b) in Form 26
Affidavit, Respondent No.1 has declared that his daughter owns
an extent of 1 acre 10 guntas of agricultural land in Sy.No.164
situated in Kothakote Village, Bagepalli Taluk, Chikkaballapur
District. In the RTC the entire extent of 1 acre 10 guntas of land
has been converted from agriculture to commercial purpose in
terms of conversion order dated 26.05.2022. The said fact has
been suppressed in Form 26 Affidavit and incorrect valuation of
the said property has been made by the Respondent No.1 in
relation to the said land in Sy.No.164 owned by his daughter.
8.4.18 Response: As regards allegations of non-disclosure of
nature of land, it is contended that the land has been recently
converted from agricultural to non-agricultural/commercial
purposes. Respondent No.1 by oversight shown the above said
56
land in Sl.No.(7)B(i)(b) as agricultural land and since no non-
agricultural activities have taken place in the said land, the land
is shown as agricultural land. There is no suppression of any
information.
8.4.19 Evidence: Ex.P16 -RTC standing in the name of Amrita
S daughter of Respondent No.1 in respect of land in Sy.No.164
measuring 1 acre 10 guntas showing nature of land being
commercial; Ex.P17-Official reminder dated 26.05.2022
indicates said land is converted for non-agricultural commercial
purposes.
8.4.20 Conclusion: Non-disclosure of nature of land bearing
Sy.No.164 measuring 1 acres 10 guntas of land in Kothakote
Village, Bagepalli Taluk is admitted. The same is shown under
the Heading "Agricultural Land".
8.4.21 Allegation No.5: At Sl.No.(7)B(i)(j) of Form 26
Affidavit, Respondent No.1 has declared that he owns an extent
of 10 acres 10 guntas of agricultural land collectively in
Sy.Nos.173, 174, 138/2, 158/2, 172 and 157 situated in
Kothakote Village, Bagepalli Taluk, Chikkaballapur District. The
57
RTC in relation to Sy.Nos.173, 174, 138/2, 158/2, 172 and 157
is produced where it is shown that the said survey numbers
have been converted from agricultural to commercial purposes
in terms of the order dated 26.05.2022. The said fact has been
suppressed in Form 26 Affidavit and incorrect valuation has
been made by Respondent No.1. That declaring false
information in relation to agricultural properties at Sl.No.(7)B(i)
of Form 26 Affidavit with respect to lands owned by Respondent
No.1 amounts to corrupt practice.
8.4.22 Response: As regards land in Sy.Nos. 173, 174, 138/2,
158/2, 172 and 157, it is contended that the same has been
converted from agricultural to non-agricultural commercial
purposes recently. Respondent No.1 inadvertently has shown
the above said land in Sl.No.(7)B(i)(b) as agricultural land. That
since no non-agricultural activities have been taken place, by
oversight the said non-agricultural property is shown as
agricultural property in Form 26 Affidavit.
8.4.23 Evidence: Ex.P18 copies of RTC extracts of lands in
Sy.Nos. 173, 174, 138/2, 158/2, 172 and 157 standing in the
name of Respondent No.1 showing nature of land being
58
Commercial. Ex.P19 are the five Official Reminder all dated
26.05.2022 indicating said lands are converted for non-
agricultural commercial purposes.
8.4.24 Conclusion: Non-disclosure of nature of lands in
Sy.Nos. 173, 174, 138/2, 158/2, 172 and 157 is admitted. The
same is shown under the Heading "Agricultural Land".
8.5 Non-disclosure in relation to Agriculture Properties
at Sl.No.(7)B(i)(d) of Form 26 Affidavit relating to
Respondent No.1's wife:
8.5.1 Allegation: At Sl.No.(7)B(i)(d) of Form 26 Affidavit
relating to wife of Respondent No.1, it is declared that his wife
owns an extent of 2 acres 35 guntas of agricultural land in
Sy.No.12 situated at Basabathanahalli Village, Hosakote Taluk.
That on verification it was found that the said land is classified
into (1) Sy.No.12 measuring 1 acre 27 guntas, (2) Sy.No.12/1
measuring 1 acre 27 guntas, (3) Sy.No.12/2 measuring 1 acre
8 guntas. As such the entire extent of land in said survey
number is 4 acres 3 guntas which is standing in the name of the
wife of the Respondent No.1. Respondent No.1 however at
Sl.No.(7)B(i)(d) of Form 26 Affidavit has disclosed only an
extent of 2 acres 35 guntas in the said survey number as the
59
agricultural property owned by his wife. That the non-disclosure
of this property in the affidavit relating to his wife amounts to
corrupt practice.
8.5.2 Response: Respondent No.1 has contended that his wife
purchased the said properties under two deeds of sale, both
dated 09.11.2011 an extent of 1 acre 8 guntas and 1 acre 27
guntas of land respectively in Sy.No.12 of Basabathanahalli
Village, Hosakote Taluk, Bengaluru Rural District. The total
extent purchased under the said two deeds of sale is 2 acres 35
guntas. That even mutation has been effected in the name of
wife of the Respondent No.1. That apart from said 2 acres 35
guntas of land, no other extent is owned by her.
8.5.3 Evidence: Ex.P20 is the RTC extract showing land in
Sy.No.12/2 measuring 1 acre 27 guntas in the name of wife of
Respondent No.1 vide MR3/2011-2012 (sale deed dated
18.05.2012) and another extent of 1 acre 8 guntas in her name
vide MR 4/2011-2012 (sale deed dated 07.01.2012). Exs.R5 an
R6 are the deeds of sale produced by the Respondent No.1.
60
8.5.4 Conclusion: Nothing is elicited in this regard to justify
that the wife of the Respondent No.1 is owner of any additional
land.
8.6 Non-disclosure of non-agriculture properties at
Sl.No.(7)B(ii) of Form 26 Affidavit relating to
Respondent No.1:
8.6.1 Allegation: That Respondent No.1 has not disclosed his
ownership of the converted land to an extent of 1 acre 15
guntas in Sy.No.138/1 situated at Kothakote Village, Bagepalli
Taluk, Chikkaballapur District. That the Respondent No.1 has
suppressed the details of non-agricultural property owned by
him in Sy.No.138/1. Thereby has committed corrupt practice.
8.6.2 That at Sl.No.(7)B(ii)(a) Respondent No.1 has declared
that he owns an extent of 8 acres of non-agricultural land in
Sy.No.32/1 situated at Chokkanahalli, Yelahanka. That on
verification it was found that Respondent No.1 also owns
another extent of 8 acres of land in Sy.No.32/9 of
Chokkanahalli. However, he has not disclosed the same in his
Form 26 Affidavit. Thus non-disclosure of this amounts to
corrupt practice.
61
8.6.3 Response: It is contended that there is a dispute
between the Respondent No.1 and his brother Srinivas Reddy
with respect to land in Sy.No.138/1 which was a self-acquired
property of the deceased father of Respondent No.1. Hence the
same is not disclosed in Form 26 Affidavit. That as earlier
submitted in respect of Sy.No.9/1 which stands in the name of
brother of Respondent No.1 with regard to this property there is
an unresolved inter-se dispute.
8.6.4 That Respondent No.1 has purchased only 8 acres of land
in No.32/1 of Chokkanalli Village, Yelahanka under deed of sale
dated 15.01.2009. Apart from the above 8 acres, no other
extent is owned by Respondent No.1 in the Sy.No.32 or any
part thereof. He is not the owner of land in Sy.No.32/9 or
Sy.No.32/8.
8.6.5 Evidence:
(a) Ex.R7 is deed of sale dated 15.01.2009 in respect of
land measuring 8 acres in Sy.No.32/1.
(b) Ex.P23- the RTC extract refers to land in Sy.No.32/1
do not reflect the name of Respondent No.1.
(c) Last page of Ex.P23 refers to land in Sy.No.32/9
reflecting the name of Respondent No. 1.
62
(d) It is also admitted by petitioner witness that
Respondent No.1 has purchased an extent 8 acres of
land in Sy.No.32/1 as per sale deed dated 15.01.2009
marked as Ex.R.7 which is also shown in Ex.P23 RTC
extract.
(e) In the cross-examination, Respondent No.1 has
stated that Sy.No.32/9 must have been shown after the
Phodi.
8.6.6 Conclusion: Petitioner has not been able prove the
allegation of Respondent No.1 not disclosing his ownership over
the converted land to an extent of 1 acre 15 guntas in
Sy.No.138/1 situated at Kothakote Village, Bagepalli Taluk,
Chikkaballapur District. The explanation offered by the
Respondent No.1 in this regard has not been rebutted.
8.6.7 As regards land in Sy.32/1, perusal of deed of sale dated
15.01.2009 at Ex. R.7 and RTC at Ex.P23 in respect of
Sy.No.32/1 reflect the name of Respondent No.1 in respect of 8
acres of land vide MR.37/2009-2010. Said material evidence
read in the light of deposition of Respondent No.1 indicate that
he is the owner of land in Sy.No.32/1 which is also shown as
63
Sy.No.32/9, perhaps after the phodi as contended by
Respondent No.1. Petitioner has failed to prove this allegation.
8.7 False information in relation to valuation of
properties at Sl.No.7 of Form 26 Affidavit:
8.7.1 Allegation: That as per the requirement under Form 26
Affidavit Respondent No.1 was required to disclose the
"Approximate Current Market Value" of the properties owned by
him, his wife and dependent daughter. Whereas, Respondent
No.1 has undervalued the properties and has declared incorrect
information in Form 26 Affidavit. Thereby he has committed
corrupt practice.
8.7.2 Though in the petition the petitioner has alleged
Respondent No.1 has under valued all the properties, during the
argument the petitioner has restricted the said allegation only in
respect of land bearing Sy.No.164, measuring 1 acre 10 guntas
situated at Kothakote Village, Bagepalli Taluk belonging to the
daughter of the Respondent No.1 as well as land forming part of
Sy.Nos. 173, 174, 138/2, 158/2, 172 and 157 totally measuring
10 acres 10 guntas situated at Kothakote Village, Bagepalli
Taluk belonging to the Respondent No.1. It is further alleged
64
that though the said lands are converted for non-agricultural
commercial purposes same are shown as agricultural land. The
approximate value of land in Sy.No.164 measuring 1 acre 10
guntas of Kothakote Village, is declared as Rs.10,00,000/-.
Similarly, approximate value of the land bearing Sy.Nos.173,
174, 138/2, 158/2, 172 and 157 totally measuring 10 acres 10
guntas situated at Kothakote Village, Bagepalli Taluk has been
shown as Rs.50,00,000/-.
8.7.3 Referring to the Guidelines value issued by the State
Government in respect of the properties situated within the
jurisdiction of Bagepalli Sub-Registrar for the year 2018-19, a
memo dated 11.02.2026 with the statement is filed in which it
is contended that the current market value of the property in
Sy.No.164 is Rs.11,25,000/- and not Rs.10,00,000/- as
declared. Whereas current market value of the property in
Sy.Nos.173, 174, 138/2, 158/2, 172 and 157 totally measuring
10 acres 10 guntas situated at Kothakote Village, Bagepalli
Taluk is Rs.1,13,45,000/- and not Rs.50,00,000/- as declared.
Thus, it is alleged Respondent No.1 has suppressed the actual
current market value of the property.
65
8.7.4 Response: Respondent No.1 contended that he has
furnished the correct valuation of the properties and has not
undervalued any properties. That the valuation provided in
Form 26 Affidavit is the best valuation.
8.7.5 Evidence:
(a) The Respondent No.1 at Sl.No.(7)B(i)(a), (b), (c), (e),
(g), (h), (i) and (j) has provided "Approximate Current Market
Value" of the agricultural lands as under;
Sl. Dependent-2
Description Self Spouse
No. (daughter)
(a) Location(s) and Basabathanahalli, Hosakote Taluk, Bagepalli Taluk,
Survey Sy.No.13 Basabathanahalli, Kothakote village,
Number(s) Sy.No.10/1 Sy.No.116/3
Area (total 2 Acres 2 Acres 14 guntas 3 Acres
measurement
in acres)
Approximate Rs.64,00,000/- Rs.75,20,000/- Rs.30,00,000/-
current
market value
(b) Location(s) and Hosakote Taluk, Hosakote Taluk, Sy.No.164,
Survey Basabathanahalli, Basabathanahalli, Bagepalli Taluk,
Number(s) Sy.No.19 Sy.No.10/2 Kottakote
Area (total 2 Acres 32.5 guntas 1 Acres 04 guntas 1 Acres, 10 guntas
measurement
in acres)
Approximate Rs.58,00,000/- Rs.35,20,000/- Rs.10,00,000/-
current
market value
(c) Location(s) and Hosakote Taluk, Hosakote Taluk, NIL
Survey Basabathanahalli, Basabathanahalli
Number(s) Sy.No.21 Sy.No.11
Area (total 37.5 Guntas 1 Acre 19 guntas NIL
measurement
in acres)
Approximate Rs.30,00,000/- Rs.47,20,000/- NIL
current
market value
(d) Location(s) and Hosakote Taluk, Hosakote Taluk, NIL
Survey Basabathanahalli, Basabathanahalli,
Number(s) Sy.No.13 Sy.No.12
66
Sy.No.16
Sy.No.20
Sy.No.19
Sy.No.17
Sy.No.18
Sy.No.15
Area (total 19 Acres 11.5 guntas 2 acres 35 guntas NIL
measurement
in acres)
Approximate Rs.6,17,20,000/- Rs.92,00,000/- NIL
current
market value
(e) Location(s) and Hosakote Taluk, Hosakote Taluk, NIL
Survey Basabathanahalli, Basabathanahalli,
Number(s) Sy.No.13 Sy.No.25/2
Area (total 2 Acres 17 guntas 1 Acres, 24 guntas NIL
measurement
in acres)
Approximate Rs.77,60,000/- Rs.51,20,000/- NIL
current
market value
Location(s) and Basabathanahalli, Somalapura NIL
Survey Sy.No.21 village,
Number(s) Sy.No.47/2, 47/3 &
47/4
Area (total 1 Acres 5 guntas 1 Acres 15 guntas NIL
measurement
in acres)
Approximate Rs.36,00,000/- Rs.44,00,000/- NIL
current
market value
(g) Location(s) and Bagepalli Taluk, Hosakote Taluk, NIL
Survey Chinnkayalapalli, Somalapura
Number(s) Sy.No.9/1 village, Sy.No.47/1
& 47/5
Area (total 1 Acres 37 guntas 27 guntas NIL
measurement
in acres)
Approximate Rs.2,83,000/- Rs.21,60,000/- NIL
current
market value
(h) Location(s) and Seegehalli, NIL NIL
Survey Sy.No.121/1
Number(s)
Area (total 17 guntas NIL NIL
measurement
in acres)
Approximate Rs.2,03,00,000/- NIL NIL
current
market value
(i) Location(s) and Chinnakayalapalli, NIL NIL
Survey Bagepalli Taluk,
Number(s) Sy.No.24/2 A3,
24/2B, 24/3, 24/1C
67
Area (total 3 Acres 11 guntas NIL NIL
measurement
in acres)
Approximate Rs.15,00,000/- NIL NIL
current
market value
(j) Location(s) and Kothakote village, NIL NIL
Survey Bagepalli Taluk,
Number(s) Sy.No.173, 174,
138/2, 158/2, 172 &
157
Area (total 10 Acres 10 Guntas NIL NIL
measurement
in acres)
Approximate Rs.50,00,000/- NIL NIL
current
market value
(b) The Respondent No.1 at Sl.No.(7)B(ii) (a), (b), (c), (d),
(e) and (f) has provided Approximate Current Market Value of
the non-agricultural land as under;
Sl. Location(s) and Survey Approximate current
No Number(s)(Self) market value
(a) Chokkanahalli, Sy.No.32/1, Rs.77,69,96,000/-
8 acres
(b) Gunjur, Sy.No.43/2, 2 acres Rs.28,32,80,000/-
(c) Marathahalli, Sy.No.46/1, Rs.2,08,16,000/-
Chowdeshwari Layout, 3.3 guntas
(d) Property No.1821, 9000 Sq. Ft, Rs.6,70,000/-
joint ownership with another 1
person 1/2 share
(e) Munnekolalu Village, sy.No.85/4, Rs.68,00,000/-
1200 sq. ft.
(f) Site No.27, Down Town Park, Rs.70,00,000/-
Settigere Village, Bangalore North
Taluk, 6573 Sq. Ft., Joint ownership
with another 1 person 1/2 share
8.7.6 Discussion/ Analysis: At Sl. No.(7)B(i)(a), (b), (c),(d),
(e), (g), (h), (i) and (j) as well as Sl.No.(7)B(ii) (a), (b), (c),
68
(d), (e) and (f) of Form 26 Affidavit in addition to other details
also require Respondent No.1 to declare "Approximate Current
Market Value" of the immovable properties. What is
"Approximate Current Market Value" is not defined. Learned
Senior Counsel for the petitioner contend that the "Approximate
Current Market Value" of the property shall be the Guidelines
Value as issued by the State Government for the purpose of
registration and payment of duty.
8.7.7 Thus, relying upon the same learned Senior counsel for
the petitioner contended that Respondent No.1 has grossly
undervalued the value of the agricultural lands as well as the
converted lands in Form 26 Affidavit.
8.7.8 Per contra, learned Senior counsel appearing for the
Respondent No.1 contended that the Guidelines Value being
relied upon by the petitioner cannot be the yardstick or the
basis to determine the "Approximate Current Market Value" of
the properties. Since the Respondent No.1 is neither into real
estate business nor he is intending to sell the properties, has
given reasonable and approximate value which in his estimation
is the "Current Market Value".
69
8.7.9 Conclusion: Since the petitioner has restricted the
allegation of under valuation of the property in respect of land
in Sy.No.164 measuring 1 acres 10 guntas standing in the name
of his daughter and land in Sy Nos.173, 174, 138/2, 158/2, 172
and 157 totally measuring 10 acres 10 guntas situated at
Kothakote Village, Bagepalli Taluk there is no requirement of
adverting to the allegation of under valuation in respect of other
lands. The difference between the "Current Market Value" as
declared by the Respondent No.1 in Form 26 Affidavit,
compared to valuation as per the Guidelines Value in respect of
said properties is as under;
Statement of valuation as per Guideline Value stipulated for the land parcels
situated at Kothakote village, Bagepalli Taluk
Reference Current Market Actual Valuation as Difference
Description of
in Form 26 declared as per per the Guideline
Property
Affidavit Form 26 Affidavit Value= (ii) * (vi)
Sl.No.7(B)(i)( Sy.No.164,
b) at Ex.P4@ situated at
page No.215 Kothakote
of paper Village, Bagepalli
book Taluk measuring Rs.10,00,0000/- Rs.11,25,000/- Rs. 1,25,000/-
1 Acre 10 guntas
Sl.No.7(B)(i)( Sy.No.173 Rs.27,00,000/- Rs.63,45,000/-
J) at of Ex.P4 measuring 3
@Page Acres
No.223 of
Paper Book
Sy.No.174 Rs.27,00,000/-
measuring 3
Acres
Sy.No.138/2 Rs.4,50,000/-
measuring 20
Guntas
Sy.No.158/2 Rs.43,20,000/-
measuring 1
Acre
Sy.No.172 Rs.5,00,000/-
measuring 2
Acres
Sy.No.157 Rs.6,75,000/-
measuring 30
70
Guntas
Totally--
measuring 10 Rs.50,00,000/-
Acre 10 Guntas
Rs.60,00,000/- Rs.1,24,70,000/- Rs.64,70,000/-
8.7.10 Since the specific term ''Approximate Current Market
Value'' is used, it has to be given plain meaning of a price at
which one can offer to sell or to buy. Reference in this regard
can only be made to the Guidelines Value which is issued by the
State Government for the purpose of registration and payment
of stamp duty. There is certainly a difference in market value of
the lands. That apart, the Respondent No.1 has declared the
aforesaid lands to be agricultural land even while the same are
admittedly converted for non-agricultural commercial purposes.
Thus, there is a false declaration regarding nature of land.
Petitioner has proved this allegation.
8.8. Non-disclosure of GST dues at Sl.No.8 of Form 26
Affidavit.
8.8.1 Allegation: That the election candidate is required to
disclose the details of the liabilities/dues to the public financial
institutions and Government such as Income Tax dues, GST
dues, property tax dues. That as per Section 44 of the CGST
Act, annual returns in GSTR-9 and GSTR-9C are required to be
71
filed by the business concern with an annual turnover of more
than Rs.2 crores in a financial year. It is submitted that from
the data retrieved from the GST portal or website, Respondent
No.1 has filed GSTR-9 and GSTR-9C in respect of (1) R and R
Bar and Restaurant, (2) Bhagini Residency, (3) Srinivasa Wines,
(4) Bhagini Enterprises, (5) Bhagini Palace only upto financial
year 2019-2020. He has not filed GSTR-9 and GSTR-9C for the
period thereafter which entails late fee and penalty as provided
under Section 47 of the CGST Act. Further, such non-filing of
GSTR-9 and GSTR-9C signify that the GST dues in relation to
said business is not only suppressed in the Form 26 Affidavit,
but also from the GST authorities.
8.8.2 Similarly, wife of Respondent No.1, also has not filed
GSTR-9 and GSTR-9C in relation to her active `Mini Bar and
Restaurant' business, a proprietorship concern after 2019-2020.
8.8.3 That on account of non-filing of GSTR-9 in relation to said
entities run by himself and his wife, Respondent No.1 and his
wife were liable to pay applicable late fee and penalty. Since the
information on the public domain discloses GSTR-9 is not filed
from the financial year 2021 onwards, Respondent No.1 was
72
liable to pay the late fee and as such there existed statutory
dues as on the date of filing of affidavit which has been
suppressed by the Respondent No.1.
8.8.4 Response: It is contended that the payment dues and
penalty or late fee arises only when there is a demand from the
statutory authorities and as there was no demand or notice
from the competent authorities, the same has not be disclosed
in Form 26 Affidavit. There is no willful suppression or non-
disclosure of any dues in Form 26 Affidavit by the Respondent
No.1. As the penalty or any due is not shown in the website, as
there was no demand of any such amount, same is shown as
'Nil'.
8.9. Non-disclosure in relation to late fee due and
payable by the Respondent No.1 under Section 47
of CGST Act.
8.9.1 Allegation: That GSTR-3B is a self declaration statement
containing summary details of outward supplies (sales) made
and details of the input tax credit. The due date for filing of
GSTR-3B is 20th of subsequent month. If there was any delay in
filing GSTR-3B, Section 47 of the CGST Act stipulates late fee
which starts immediately after the due date. That the late fee
73
will automatically be added in the next month's GSTR-3B and
late fee for delay in GSTR-3B is levied at the rate of Rs.50/- per
day of delay and Rs.20/- per day of delay for taxpayers having
'Nil' tax liability for the month. That as per the information
retrieved from the GST website for the month of 02.02.2023
Respondent No.1 had filed GSTR-3B relating to
GSTIN29ADDPR8125K5ZY belatedly that is on 24.03.2023 with
a delay of 4 days. Applicable late fee for 4 days was payable on
20.04.2023, the date on which GSTR-3B for the month of March
2023 was required to be filed. Whereas GSTR-3B for
GSTIN29ADDPR8125K5ZY in respect of March 2023 is also filed
belatedly i.e. on 03.05.2023. It is submitted that the fact of
GSTR-3B for March 2023 has been filed on 03.05.2023. Thus
the late fee towards belated filing of GSTR- 3B for February
2023 is paid by the Respondent No.1 only on 03.05.2023.
Respondent No.1 who filed his Form 26 Affidavit on 20.04.2023
ought to have disclosed at Sl.No.8 that there exists a statutory
due in the nature of late fee payable under Section 47 of CGST
Act in respect of GSTIN29ADDPR8125K5ZY. Non-disclosure of
the same amounts to corrupt practice.
74
8.9.2 Response: As regards to the allegations of non-
disclosure in relation to late fee due and payable by the
Respondent No.1 under Section 47 of CGST Act, it is contended
that as there is no demand for payment of any dues or penalty,
the same is shown as 'Nil'.
8.9.3 Evidence: Exs.P6, P36 to P41 are the GST payment
status in respect of (1) R and R Bar and Restaurant, (2) Bhagini
Residency, (3) Srinivasa Wines, (4)Bhagini Enterprises/Whole
Sale Liquors, (5) Bhagini Palace which read as under;
GSTR-
Date of
9 FY
GSTIN Entity Due Date filing of Reference GSTR9C
Annual
GSTR9
Return
29ADDPR8125K7 RR 2019- 31.12.2020 31.03.2021 Ex.P6 (pages 307- Applicable
Restaurant 2020 312) (relevant page and filed
310)
29ADDPR8125K7 RR 2020- 31.12.2021 26.06.2023 Ex.P36 (pages 620- Applicable
Restaurant 2021 625) (relevant page and filed
623)
29ADDPR8125K7 RR 2021- 31.12.2022 29.06.2023 Ex.P36 (pages 626- Applicable
Restaurant 2022 631) (relevant page and filed
629)
29ADDPR8125K7 RR 2022- 31.12.2023 29.12.2023 Ex.P36 (pages 632- Applicable
Restaurant 2023 637) (relevant page and filed
635)
29ADDPR8125K1 Bhagini 2019- 31.12.2020 31.03.2021 Ex.P6 (pages 313- Applicable
Residency 2020 319) (relevant page and filed
317)
29ADDPR8125K1 Bhagini 2020- 31.12.2021 21.06.2023 Ex.P37 (pages 638- Applicable
Residency 2021 642) (relevant page and filed
642)
29ADDPR8125K1 Bhagini 2021- 31.12.2022 29.06.2023 Ex.P37 (pages 643- Applicable
Residency 2022 647) (relevant page and filed
647)
29ADDPR8125K1 Bhagini 2022- 31.12.2023 29.12.2023 Applicable
Residency 2023 and filed
29ADDPR8125K5 Srinivasa 2019- 31.12.2020 31.03.2021 Ex.P6 (pages 320- Applicable
Wines 2020 324) (Filing table not and filed
visible-separately
kept)
29ADDPR8125K5 Srinivasa 2020- 31.12.2021 26.06.2023 Ex.P38 (pages 653- Applicable
Wines 2021 658) (relevant page and filed
75
657)
29ADDPR8125K5 Srinivasa 2021- 31.12.2022 27.06.2023 Ex.P38 (pages 659- Applicable
Wines 2022 664) (relevant page and filed
663)
29ADDPR8125K5 Srinivasa 2022- 31.12.2023 29.12.2023 Ex.P38 (pages 665- Applicable
Wines 2023 671) (relevant page and filed
669)
29ADDPR8125K9 Bhagini 2019- NA NA Ex.P6 (pages 325- Applicable
Enterprises 2020 329) (filing table not and filed
visible)
29ADDPR8125K9 Bhagini 2020- NA NA Cancelled Suo Moto Applicable
Enterprises 2021 with effective from and filed
30.12.2020
29ADDPR8125K9 Bhagini 2021- NA NA Cancelled Suo Moto Applicable
Enterprises 2022 with effective from and filed
30.12.2020
29ADDPR8125K9 Bhagini 2022- NA NA Cancelled Suo Moto Applicable
Enterprises 2023 with effective from and filed
30.12.2020
29ADDPR8125K9 Bhagini 2022- NA NA Ex.P39 (pages 671- Applicable
Enterprises 2023 675) (relevant page and filed
671)
29ADDPR8125K2 Bhagini 2019- 31.12.2020 31.03.2021 Ex.P6 (pages 330- Applicable
Palace 2020 335) (relevant page and filed
334)
29ADDPR8125K2 Bhagini 2020- 31.12.2021 26.06.2023 Ex.P40 (pages 684- Applicable
Palace 2021 688) (relevant page and filed
688)
29ADDPR8125K2 Bhagini 2021- 31.12.2022 27.06.2023 Ex.P40 (pages 689- Applicable
Palace 2022 693) (694- and filed
698)(relevant page
693 and 698)
29ADDPR8125K2 Bhagini 2022- 31.12.2023 29.12.2023 Current online status Applicable
Palace 2023 and filed
(Wife) Mini Bar 2019- 31.12.2020 31.03.2021 Ex.P6 (pages 359- Applicable
29AHMPS621512 and 2020 634) (relevant page and filed
Restaurant 363)
29AHMPS621512 Mini Bar 2020- 31.12.2021 28.06.2023 Ex.P41 (pages 699- Applicable
and 2021 704) (relevant page and filed
Restaurant 703)
29AHMPS621512 Mini Bar 2021- 31.12.2022 28.06.2023 Ex.P41 (pages 705- Applicable
and 2022 710) (relevant page and filed
Restaurant 709)
29AHMPS621512 Mini Bar 2022- 31.12.2023 25.12.2023 Ex.P41 (pages 711- Applicable
and 2023 716) (relevant page and filed
Restaurant 715)
8.9.4 Respondent No.1 in his cross-examination at paragraphs
40 to 47 has deposed as under;
40. I have been paying the Goods and Service Taxes
regularly in respect of all my business entities and I have
disclosed the same in my affidavit in Ex.P4.
76
41. In the earlier regime the Value Added Tax (VAT) was
being paid individually. After introduction of Goods and
Service Taxes (GST) regime taxes is being paid under the
Bhagini group entity.
42. Though there are different registered numbers assigned
to five business entitles, since they come under one group
name, taxes have been paid accordingly.
43. It is not correct to suggest that the taxes were not paid
up to date, as on the date of filing affidavit as per Ex.P4.
44. It is not correct to suggest that the annual returns were
filed only upto the years 2019-2020 and not for the years
2021-2022 and 2022-2023.
45. Since there were COVID-19 restrictions returns were
filed in the month of July and December 2023.
46. There were no GST dues as on the date of filing of
affidavit as per Ex.P4.
Question: GST has not been paid even in respect of
"Mini Bar and Restaurant" belonging to your wife for the
years 2020-2021, 2021-2022, 2022-2023 ?
Answer: Since the business entities were merged the taxes
were paid.
47. It is not correct to suggest that there were any dues
payable in respect of said "Mini Bar and Restaurant"
business as on the date of filing of affidavit as per Ex. P4."
8.9.5 Discussion/Analysis: Learned Senior counsel appearing
for the petitioner contended that in terms of Sections 44 and 47
of CGST Act, GSTR-9 and GSTR-3B are to be filed for each
financial year within the due date prescribed. Non-filing of the
annual returns on the actual dates results in automatic liability
77
towards payment of late fee and penalty and non-disclosure of
the same would amount to suppression of facts.
8.9.6 Per contra, learned counsel appearing for the Respondent
No.1 contended that non-filing of annual returns and
consequent levy of late fee cannot be read and extended to
mean non payment of Government dues. Therefore, he
submitted, even if the Respondent No.1 has not submitted the
returns, the same would not amount to non-disclosure of GST
dues as there was no notice by the Statutory authorities either
for alleged payment of dues or for payment of late fee dues.
8.9.7 Appropriate to refer to Sections 44 and 47 of the CGST
Act, 2017 which reads as under:
"44. Annual return. -
2
[(1)] Every registered person, other than an Input Service
Distributor, a person paying tax under section 51 or section
52, a casual taxable person and a non-resident taxable
person shall furnish an annual return which may include a
self-certified reconciliation statement, reconciling the value
of supplies declared in the return furnished for the financial
year, with the audited annual financial statement for every
financial year electronically, within such time and in such
form and in such manner as may be prescribed:
Provided that the Commissioner may, on the
recommendations of the Council, by notification, exempt
any class of registered persons from filing annual return
under this section:
Provided further that nothing contained in this section
shall apply to any department of the Central Government
or a State Government or a local authority, whose books of
78
account are subject to audit by the Comptroller and
Auditor-General of India or an auditor appointed for
auditing the accounts of local authorities under any law for
the time being in force.]
[(2) A registered person shall not be allowed to furnish an
annual return under sub-section (1) for a financial year
after the expiry of a period of three years from the due
date of furnishing the said annual return:
Provided that the Government may, on the
recommendations of the Council, by notification, and
subject to such conditions and restrictions as may be
specified therein, allow a registered person or a class of
registered persons to furnish an annual return for a
financial year under sub-section (1), even after the expiry
of the said period of three years from the due date of
furnishing the said annual return.]
47. Levy of late fee. -
(1) Any registered person who fails to furnish the details of
outward or 1[***] supplies required under section
1
37 [***] or returns required under section 39 or section
45 2[or section 52] by the due date shall pay a late fee of
one hundred rupees for every day during which such failure
continues subject to a maximum amount of five thousand
rupees.
(2) Any registered person who fails to furnish the return
required under section 44 by the due date shall be liable to
pay a late fee of one hundred rupees for every day during
which such failure continues subject to a maximum of an
amount calculated at a quarter per cent of his turnover in
the State or Union territory."
8.9.8 Perusal of the aforesaid provisions would indicate that
every registered person other than an input service distributor,
a person paying tax under Section 51 or Section 52, a casual
taxable person and non-residential taxable person shall furnish
an annual return which may include a self certified returns
79
reconciliation statement. Sub-Section (2) of 44 CGST also
provides filing of annual returns within three years or even after
three years from the due date of furnishing the said annual
returns. Clearly, what is mandated is furnishing of annual
returns.
8.9.9 Section 47 of the CGST Act provides for levy of late fee in
the event of failure to furnish the returns required under
Section 44 of the CGST Act, the aforesaid provisions do not
indicate that the same would amount to GST dues. Perhaps, on
scrutiny of such returns under Chapter XII (under Section 61)
and assessment of non-filers of returns (under Section 62) and
who is required to pay the tax and has failed to pay can be held
liable to pay only on determination of tax not paid or short paid
or erroneously refunded etc., as contemplated under Chapter
XV of the CGST Act, 2017 under the heading ''Demands and
Recovery''. Unless and until, there is a determination of the tax
payable as contemplated under said Chapter and demand being
raised thereafter, it cannot be held to be dues payable merely
because of non furnishing of the returns.
80
8.9.10 Conclusion: In the instant case, the petitioner has not
furnished any material evidence with regard to there being any
demand raised by the authorities after determination of tax
under Chapter-XV of CGST Act, 2017.
8.9.11 In any event, the late fee contemplated under Section
47 of CGST is Rs.100/- for everyday during which such failure
continues, maximum amount of Rs.5,000/- or a quarter percent
of the turn over in the State of Union Territory. Therefore, this
Court is of the considered view that this aspect of the matter
cannot be stretched to the extent amounting to corrupt practice
as sought to be contended by the petitioner.
8.10 Non-disclosure of assets in relation to Bhagini
Hospitalities Pvt. Ltd. wherein the Respondent No.1
and his wife are the Directors.
8.10.1 Allegation: That at Sl.No.(7)A(iii) of Form 26 Affidavit,
Respondent No.1 has disclosed that he and his wife had interest
in Bhagini Hospitalities Pvt. Ltd. A search carried out on the
website of Ministry of Corporate Affairs, it was discovered that
Respondent No.1 and his wife were only the directors and
shareholders of Bhagini Hospitalities Pvt. Ltd., since
incorporation of the company. That the Master Data as
81
downloaded from the Ministry of Corporate Affairs portal
disclosed that the last Annual General meeting was held on
31.12.2020. Balance sheet was last filed upto 31.03.2020,
which means the company to which the Respondent No.1 and
his wife are the only directors has not filed financial returns for
the period subsequent to 31.03.2020. It is further contended
that the details of the assets under charge as available on the
Ministry of Corporate Affairs portal, disclose that the company
owns certain immovable and movable properties. That charges
are also created for such immovable and movable properties.
The Respondent No.1 by not disclosing these relevant details in
his affidavit along with nomination papers has committed
corrupt practice.
8.10.2 Response: It is contended that Bhagini Hospitalities Pvt.
Ltd., is a company, details of which are not required to be
disclosed in Form 26 Affidavit. What is required under law to be
disclosed with regard to a private limited company has been
disclosed in the Form 26 Affidavit. Hence there is no
suppression or non-disclosure of the assets and liabilities.
82
8.10.3 Evidence: Ex.P24 is the company Master Data
pertaining to Bhagini Hospitalities Pvt. Ltd. Learned Senior
counsel for the petitioner vehemently contended that in terms
of data furnished, the last AGM was conducted on 31.12.2020,
and the last date of balance sheet was submitted on
31.03.2020. Whereas, Note:3 under Sl.No.(7)A of the Form 26
Affidavit mandates that value of bonds/share debentures as per
current market value in stock exchange in respect of listed
companies and as per books in the case of non-listed
companies should be given. Thus, she submits that since the
balance sheet of the said entity is published only upto
31.03.2020, the share value details provided under Clause-
(7)A(iii) of both Respondent No.1 and his wife are incomplete
and amounts to suppression. Learned Senior counsel for the
Respondent No.1 on the other hand submits that Respondent
No.1 and his wife are the only two shareholders of the said
company and they have declared equity shares held by both of
them. That there is no requirement of declaring assets and
liabilities of the said entity, as the shareholders are different
and distinct from that of the company. Shareholders, unless
company is wound up, cannot claim to be owners of its assets.
83
8.10.4 Conclusion: There is no column requiring disclosure of
assets and liabilities of the company of which a candidate, his
wife or his dependents are the shareholders. Therefore, the
allegation made under this head holds no water. As regards,
book value of the shares pertaining to non-listed company,
though balance sheet of company is published only upto
31.03.2020, Respondent No.1 at Sl.No.(7)A(iii) has given
equity share value held by him and his wife as Rs.9,00,50,000/-
and Rs.5,50,000/- respectively. This Court in the absence of
petitioner demonstrating any significant increase in the share
value, deems it appropriate to hold that there is substantial
compliance made by Respondent No.1 in this regard.
8.11 False declaration of Income Tax Return at Sl.No.4
of Form 26 Affidavit in relation to Respondent No.1
and his wife.
8.11.1 Allegation: That at Sl.No.4 of Form 26 Affidavit
prescribes that the pan and the status of filing the income tax
returns for the last financial years of the candidate, spouse of
the candidate and the dependents of the candidates to be
disclosed. That the Respondent No.1 has declared the total
income as per income tax returns for the years 2017-2018,
84
2018-2019, 2019-2020, 2020-2021 and 2021-2022 as regards
himself and his wife. It is further contended as forthcoming
from the data retrieved from the GST portal Respondent No.1
and his wife have not filed GSTR-9 and GSTR-9C in relation to
their respective active GSTIN since 2020-2021. That from the
data retrieved from the Ministry of Corporate Affairs portal
financial from the Bhagini Hospitalities Pvt. Ltd. wherein the
Respondent No.1 and his wife are the only directors have not
been filing financial returns since 2020-2021. Thus, it is
submitted non-filing of the GSTR of the business entities run by
the Respondent No.1 and his wife respectively and non-filing of
the financial returns of Bhagini Hospitalities Pvt. Ltd. has a
direct bearing on the total income of Respondent No.1 and his
wife. Therefore the ITR disclosed by Respondent No.1 at Sl.No.4
of the affidavit as regards himself and his wife are false.
8.11.2 Response: It is contended that Respondent No.1 has
furnished all the details and there are no false declaration in
respect of income tax returns at Sl.No.4. It is the responsibility
of the company to file its financial and annual returns and the
85
same is not required to be disclosed by the Respondent No.1 in
Form 26 Affidavit. Hence the allegations are denied.
8.11.3 Evidence: Except the allegations made above, no
evidence is produced with regard to suppression of any income
in the income tax returns.
8.11.4 Conclusion: Non-filing of GST returns and non-filing of
returns pertaining to Bhagini Hospitals Pvt ltd., as alleged
cannot be construed as non-filing of or incomplete filing of
income tax returns by Respondent No.1 or his wife under the
Income Tax Act. In any event, issue pertaining to any
shortcomings in filing of Income Tax Returns would be dealt
with by the appropriate authorities. Petitioner has not placed
any material evidence in this regard and such allegation can
only be speculative without any specific details forthcoming.
8.12 Non-disclosure of offshore assets of Respondent
No.1.
8.12.1 Allegation: That at Sl.No.(7)A of Form 26 Affidavit
stipulated that details under Sl.No.(7)A should include the
interest in the ownership of offshore assets which would include
deposit or investment in foreign banks or the other institutions
86
and the details of all the assets, liability of the foreign countries.
That Respondent No.1 owns various assets of the foreign
countries and has deposited in the foreign bank which has not
been disclosed in Form 26 Affidavit by the Respondent No.1.
That the petitioner is in the process of obtaining documents and
will furnish the same later.
8.12.2 Response: It is contended that neither does the
Respondent No.1 own any assets in the foreign country nor
does he hold any deposits in the foreign banks. Therefore there
is no suppression or non-disclosure of offshore assets as alleged
in the petition.
8.12.3 Evidence: No evidence is led by the petitioner in this
regard.
8.12.4 Conclusion: No case made out on this ground.
8.13 Respondent No.1 has indulged in corrupt practice as
defined under Section 123(1) of the RP Act.
8.13.1 Allegation: That upon filing the nomination papers in
Form 26 Affidavit on 20.04.2023 Respondent No.1 and his
agents in the guise of election campaign resorted to inducing
the electors to vote the Respondent No.1 by offering
87
gratification in the nature of money and promised to make huge
sums of donation to the temples. That the petitioner learnt on
25.04.2023 the Respondent No.1 when carrying out the election
campaign in Ward No.15 SC Colony which comes under 140-
Bagepalli constituency had promised that he would donate
Rs.50,000/- to a temple if the electors vote him and get him
elected. The said statement was video recorded and widely
circulated among the electors of 140-Bagepalli constituency.
That promise to make the monetary payments when the Code
of Conduct was imposed amounts to corrupt practice. It is
further alleged that one Sri.K.V.Prashanth had given a
complaint to the election officer of Bagepalli constituency on
27.04.2023 along with the CD containing the promises made by
Respondent No.1 seeking necessary action. Said complaint
dated 27.04.2023 was forwarded to MCC Nodal officer by the
election officer vide letter dated 28.04.2023 for further
examination, filing the report, who in turn forwarded the same
to Narasimhareddy, FST-1 who was appointed as the flying
squad during the election. That the said Narasimhareddy, FST-1
upon receipt of the complaint forwarded to him conducted the
spot panchanama and filed a complaint dated 01.05.2023
88
before the jurisdictional Police Station for taking necessary
action. The Station House Officer registered NCR No.171/2023
against the said complaint and made the requisition before the
jurisdictional Magistrate seeking permission to investigate the
non cognizable offence punishable Section 171E of the IPC. The
jurisdictional Magistrate acting under Section 151(2) of Cr.P.C
by order dated 02.05.2023 permitted SHO Bagepalli Station to
register the case against the Respondent No.1 and investigate
the offence punishable under Section 171E of IPC. That making
such promises by the Respondent No.1 inducing the electors to
vote in his favour by offering gratification amounts to corrupt
practice.
8.13.2 Response: It is contended that based on the false
complaint, FIR came to be registered. After thorough
investigation into the complaint, the jurisdictional police have
submitted their final report/`B' report to the effect that
Respondent No.1 has not offered any illegal gratification or
attempted to induce any electors to vote in his favour. The `B'
report was submitted to the Civil Judge at JMFC, Bagepalli
which was accepted by the Court on 07.10.2023. The perusal of
89
the report discloses that the false complaint was lodged and the
same did not disclose any cause of action much less the corrupt
practice as contemplated under Section 123(1) of the R.P. Act,
1951
8.13.3 Evidence: No evidence in this regard is produced by the
petitioner.
8.13.4 Conclusion : No case made out on this ground.
8.14 Non-disclosure of statutory dues at Sl.No.8 in
respect of properties declared at Sl.No.7 of Form 26
Affidavit.
8.14.1 Allegation: That since Bruhat Bengaluru Mahanagara
Palike is a statutory body Respondent No.1 was required to
furnish the details of the property tax dues if any, with respect
to the properties owned by him, his wife, dependent daughter in
his Form 26 Affidavit. Respondent No.1, however, has not
disclosed the property tax dues payable to BPMP in relation to
properties owned by him, his wife and daughter namely;
(i) At Sl.No.(7)B(ii)(c) of Form 26 Affidavit, Respondent
No.1 has declared that he owns a non-agricultural
property measuring 3.3 guntas situated in Sy.No.46/1
Chowdeshwari layout, Marathahalli. As per the records
available online, petitioner discovered that Respondent
No.1 has paid property tax relating to the said property
90
only upto 2020-2021 and has not paid property tax for
the years 2021-2022, 2022-2023. That petitioner by his
letter dated 19.06.2023 had sought information regarding
the property tax dues payable by Respondent No.1 under
the Right to Information Act with respect to the property
described at Sl.No.(7)B(ii)(c) of Form 26 Affidavit.
(ii) That at Sl.No.(7)B(iii)(a) to (h) of Form 26 Affidavit
Respondent No.1 has declared commercial properties
owned by him and his wife. At Sl.No.(7)B(iii)(a)
Respondent No.1 has declared that he owns commercial
properties situated at Bhattarahalli Village, K.R.Puram
Hobli, Bangalore. As per the records available online it is
discovered that Respondent No.1 has paid the property
tax on the said property only upto 2019-2020 and there
are no records of him having paid property tax thereafter.
(iii) It is seen at Sl.No.(7)B(iii)(b) of Form 26 Affidavit
Respondent No.1 declared that he owns a commercial
property bearing Sy.No.108/1 situated at
Devarabeesanahalli, Marathahalli, Bengaluru. As per the
record whereas Respondent No.1 has paid property tax in
relation to said property only upto 2021-2022 and not
thereafter.
(iv) At Sl.No.(7)B(iii)(d) of Form 26 Affidavit Respondent
No.1 has declared that he owns a commercial property
91
situated at Kundalahalli gate. As per the record property
tax is paid only upto 2020-2021 and not thereafter.
(v) At Sl.No.(7)B(iii)(e) of Form 26 Affidavit Respondent
No.1 has declared that he owns a commercial property
bearing No. 48/2 situated at Vignananagar, Bengaluru.
But the property tax is paid only upto 2017-2018 and not
thereafter.
(vi) At Sl.No.(7)B(iii)(f) of Form 26 Affidavit he has
declared that he owns a commercial property situated in
Sy.No.No.89/2, Munnekolalu Village, Bengaluru. But the
tax is paid only upto 2018-2019 and not thereafter.
(vii) That by a letter dated 19.06.2023 petitioner had
sought information regarding property tax due payable by
the Respondent No.1 under RTI in respect of the property
described at Sl.Nos.(7)B(iii)(a), (b), (d), (e) and (f) of
Form 26 Affidavit. In response to the said letter, the Asst.
Revenue Inspector, BBMP had issued reply dated
21.06.2023 under the Right to Information Act, that the
Respondent No.1 has paid the property tax only upto
2019-2020 in relation to the property described at
Sl.No.(7)B(iii)(a). The certificate under Section 65B of the
Indian Evidence Act in support of the electronic records
produced.
92
(viii) That apart from the aforesaid properties Respondent
No.1 has not paid the property tax in relation to the other
properties at Sl.No.(7)B(i)(a) to (j), Sl.No.(7)B(ii)(a), (b),
(d), (e) and (f) and Sl.No.(7)B(iii)(c), (g) and (h) declared
by him in Form 26 Affidavit.
Thus, referring to the aforesaid incidents it is contended that
the non-disclosure and suppression of the details of his assets
and liabilities amounted to corrupt practice.
8.14.2 Response: As regard to the allegations of non-
disclosure of the statutory dues at Sl.No.8 in respect to
properties declared at Sl.No.7 of the Form 26 Affidavit, it is
contended that there is no suppression of facts. As there was no
demand notice from the statutory authority there was no need
to disclose the same in the Form 26 Affidavit.
8.14.3 Evidence: One Smt. Lakshmidevi R, Joint
Commissioner, Revenue Department has been examined as
PW.2 in support of the aforementioned allegations. The said
witness has produced documents pertaining to assessment and
payment of tax details of which are as under;
(i) Exs.P49 to P60 pertains to the self assessment of
property tax for the period from 2018 - 2019 to 2023 -
93
2024 in respect of property No.28 of Bhattarahalli Grama,
K.R Puram Hobli, Bangalore, and the certified copies of
the tax paid receipts for the said period.
(ii) Exs.P61 to P72 pertains to the self assessment of
property tax for the period from 2018 - 19 to 2023 - 24 in
respect of property No. 48/2 Vignananagr, Kaggadasapura
Main Road, Bangalore, and the certified copies of the tax
paid receipts for this said period.
(iii) Exs.P73 to P84 pertain to the self assessment of
property tax for the period from 2018 - 19 to 2023 - 24 in
respect of property No.89/2 of Outer Ring Road,
Munnekolalu, Marathahalli, Bangalore, and the certified
copies of the tax paid receipts for this said period.
(iv) Exs.P85 to P96 pertain to the self assessment of
property tax for the period from 2018 - 19 to 2023 - 24 in
respect of property No.245 of 'A' Block, Devarabisanahalli,
Marathahalli, Bangalore, and the certified copies of the tax
paid receipts for this said period.
(v) Exs.P97 to P108 pertain to the self assessment of
property tax for the period from 2018 - 19 to 2023 - 24 in
respect of property No.43, Varthur Main Road ,
Munekolalu, Bangalore, and the certified copies of the tax
paid receipts for this said period.
94
(vi) Exs.P109 to P120 pertain to the self assessment of
property tax for the period from 2018-19 to 2023-24 in
respect of property No.1 of Chowdeshwari Layout, 5th
Main, Marathahalli, Bangalore, and the certified copies of
the tax paid receipts for this said period.
(vii) In the cross-examination, Respondent No.1 has
deposed at paragraph No.49 that except for the COVID-
19 pandemic period since there was no demand, he has
paid the property tax in respect of all the properties only
against the demand. He has denied the suggestion, that
though there were property tax due and payable he has
not disclosed the same in his Form 26 Affidavit at Ex.P4.
8.14.4 Discussion/Analysis: Learned Senior counsel for the
petitioner submitted that in terms of sub-Section (8) of Section
144 and Section 48 of the Bruhat Bengaluru Mahanagara Palike
Act, 2020 (for brevity 'BBMP Act, 2020') absence of demand
does not mean there is no due. That property tax in a sum of
Rs.1,09,04,478/- has been paid during August, 2023 and
another sum of Rs.24,30,447/ has been made on 24.07.2024.
That there is no whisper regarding payment of property tax
being due or paid subsequently even in the written statement
that was filed on 05.12.2023. Thus, the same amounts to false
statement made in the Form 26 Affidavit wherein it is declared
95
liability towards property tax as 'Nil'. She refers to tabular
column indicating actual due dates and payment of property tax
made thereunder. Learned Senior counsel appearing for
Respondent No.1 submits that issue of non payment of property
tax in comparison to the overall assets held by Respondent
No.1, his wife, and daughter would be insignificant. In any
event, the Respondent No.1 has paid and discharged the said
dues though belatedly. The non-payment of property tax was an
inadvertent error committed by his employees and he had no
intention of either suppressing or misleading as sought to be
made out.
8.14.5 The chart prepared and submitted by the petitioner
based on the evidence led by PW 2 and the documents
produced at Exs.P49 to 120 is as under;
Date of Page Nos. of E property
Exhibits Year Amount Paid
Payment Details
P57 2020-2021 07.08.2023 Rs.3,74,823.00 770 No.28 Battrahalli Village
P53 2021-2022 07.08.2023 Rs.3,30,774.00 771 No.28 Battrahalli Village
P59 2022-2023 07.08.2023 Rs.3,06,984.00 772 No.28 Battrahalli Village
P60 2023-2024 07.08.2023 Rs.2,84,129.00 773 No.28 Battrahalli Village
P67 2018-2019 16.08.2023 Rs.19,796.00 788 No.48/1 Vignan Nagar
P68 2019-2020 16.08.2023 Rs.17,302.00 789 No.48/1 Vignan Nagar
P69 2020-2021 16.08.2023 Rs.14,807.00 790 No.48/1 Vignan Nagar
P70 2021-2022 16.08.2023 Rs.13,121.00 791 No.48/1 Vignan Nagar
P71 2022-2023 16.08.2023 Rs.12,210.00 792 No.48/1 Vignan Nagar
P72 2023-2024 16.08.2023 Rs.11,239.00 793 No.48/1 Vignan Nagar
P80 2019-2020 05.08.2023 Rs.2,11,819.00 808 No.89/1 ORR
Munnekolalu
P81 2020-2021 07.08.2023 Rs.1,80,192.00 809 No.89/1 ORR
Munnekolalu
P82 2021-2022 07.08.2023 Rs.1,58,807.00 810 No.89/1 ORR
Munnekolalu
96
P83 2022-2023 07.08.2023 Rs.1,47,257.00 811 No.89/1 ORR
Munnekolalu
P84 2023-2024 07.08.2023 Rs.1,36,110.00 812 No.89/1 ORR
Munnekolalu
P94 2021-2022 07.08.2023 Rs.28,57,527.00 841 245A Devabisanahalli
P95 2022-2023 07.08.2023 Rs.26,48,530.00 842 245A Devabisanahalli
P96 2023-2024 24.07.2024 Rs.24,30,447.00 843 245A Devabisanahalli
P106 2021-2022 05.08.2023 Rs.11,08,569.00 871 46 Varthur Main Road
P107 2022-2023 05.08.2023 Rs.10,27,729.00 872 47 Varthur Main Road
P1 2023-2024 07.08.2023 Rs.9,50,304.00 873 48 Varthur Main Road
P118 2021-2022 05.08.2023 Rs.33,198.00 902 A Chowdeshwari Layout
P119 2022-2023 05.08.2023 Rs.30,815.00 903 5 Chowdeshwari Layout
P120 2023-2024 05.08.2023 Rs.28,436.00 904 6 Chowdeshwari Layout
8.14.6 Chapter XIII of the BBMP Act, 2020 deals with Taxes. In
that Section 144 provides for levy of Tax on buildings and land
or both and the rates at which the same is leviable. Sub-Section
(8) of Section 144 reads as under;
"(8) The person primarily liable to pay the property tax,
shall pay the tax in two equal installments through
demand draft or E-Payment. The first being before 30th
May and second by 29th November of each financial
year. However, the owner or occupier or person
primarily liable to pay property tax may choose to pay
in one installment:
Provided that if the owner or occupier who is
liable to pay property tax files return and also pays
property tax for the whole year, within one month from
the date of commencement of each year he shall be
allowed a rebate of five per cent on the tax payable by
him:
Provided further that the Government may on
the recommendation of the Corporation by notification
extend the time limit for payment of property tax
without penalty and for the benefit of Five percent
rebate in respect of any financial year.
Provided also that subject to random scrutiny
as may be prescribed, the tax return filed for the first
time or the year in which g guideline value of property
has been revised under section 45B of the Karnataka
Stamp Act 1957 (Karnataka Act 34 of 1957) shall form
the base for payment of tax applicable during each
block year. "
97
8.14.7 Section 147 of the BBMP Act, 2020 providing for
payment of property tax which reads as under;
"147. Payment of property tax.-
(1)The owner of the building or vacant land or both shall pay
the tax either in one installment or in two equal installments,
within such time periods as notified by the corporation from
time to time.
(2) The corporation shall have the power to extend such
notified time period under sub section (1) and waive such
penalty payable due to delayed payment.
(3) Any person owner of the building or vacant land or both
who is required to pay tax shall submit a self-assessed
return, in such format as may be prescribed, within those
time periods notified under sub section (1) to the Chief
Commissioner or to such officer or agency authorized by him
in this behalf.
(4) In order to facilitate the filing of return by an owner or
occupier, the corporation shall issue such guidelines for the
ease of calculation of the payable tax and the Chief
Commissioner shall direct zonal commissioners of the
corporation to establish such help centres within the zonal
committee as may be necessary."
8.14.8 Section 148 (before its omission under the Act 17 of
2024 effective from 07.03.2024) reads as under;
"148. Demand for the payment of tax and recovery of
taxes.-
(1) If the tax including the penalty payable under this chapter
is not paid after it has become due, the Corporation may cause
to be served upon the person liable for the payment of the
same, a notice of demand in such form as may be prescribed.
(2) If a person seeks to appeal against the demand notice
issued by the Chief Commissioner or any person authorized by
him, such person may file an appeal before the Tribunal in such
manner as may be prescribed.
98
(3) Any person seeking to file an appeal under sub-section (2)
shall deposit fifty percent of the demanded amount with the
Tribunal.
(4) If the person to whom a notice of demand has been served
under sub section (1) does not pay the tax within thirty days
from the service of such demand, in the absence of any stay
issued by Tribunal or any court on the demand notice, the Chief
Commissioner may recover by distraint under his warrant and
sale of the such movable property of the defaulter or if the
defaulter is the occupier of the building by distress and sale of
any movable property which may be found in or on such
building or land, the amount due on account of tax together
with the warrant fee and distraint fee and with such further
sums as will satisfy the probable charges, that will be incurred
in connection with the detention and of the sale of property so
distrained. (5) If, for any reason the distraint, or a sufficient
distraint of the defaulter's property cannot be effected, the
Chief Commissioner may attach the bank account or the
immovable property of the defaulter in such manner as may be
prescribed, till the recovery of the property tax due. The Chief
Commissioner may move the competent court to absolute the
attachment order made by him. Further the Chief
Commissioner may prosecute the defaulter before a competent
Court.
8.14.9 Thus, the primary obligation of payment of property tax
voluntarily without any demand is on the owner of the building
or the vacant land as the case may be. The issue of notice
would arise if the property tax including the penalty payable
was not paid after it has become due. Unlike in case of the
payment of other taxes such as GST or income Tax where there
is always an element of fluctuation in income and expenditure,
month after month and year after year which requires periodical
assessment and determination, in the matter of property tax
99
rates at which tax to be assessed is fixed and there is hardly
any scope for periodical fluctuation. Therefore, the owner of the
building or the vacant land is statutorily obligated to pay the tax
whether or not there is any demand notice issued by the
authorities. In fact by virtue of Act 17 of 2024 and even the
provisions of Section 148 of BBMP Act, 2020, which provides for
demand for payment of tax if not paid after it becomes due and
for recovery of tax has now been deleted.
8.14.10 Also relevant to note that the property tax is the major
source of income for the Statutory authority like Bruhat
Bengaluru Mahanagara Palike which would be used ultimately
for public good. In the words of the Apex Court as held in the
case of SRIKANTH KASHINATH JITURI AND OTHERS Vs.
CORPORATION OF CITY AT BELGAUM reported in (1994) 6
SCC 572 wherein dealing with basis of determination of rate of
property tax at paragraph 11 the Apex Court has held as under;
"11. Before parting with this appeal, we feel compelled to
express our doubts as to the soundness and continuing
relevance of the view taken by this Court in several earlier
decisions that the property tax must be determined on the
basis of fair rent alone regardless of the actual rent
received. Fair rent very often means the rent prevailing
prior to 1950 with some minor modifications and additions.
Property tax is the main source of revenue to the
municipalities and municipal corporations. To compel these
local bodies to levy and collect the property tax on the
100
basis of fair rent alone, while asking them at the same time
to perform all their obligatory and discretionary functions
prescribed by the statute may be to ask for the impossible.
The cost of maintaining and laying roads, drains and other
amenities, the salaries of staff and wages of employees --
in short, all types of expenditure have gone up steeply over
the last more than forty years. In such a situation,
insistence upon levy of property tax on the basis of fair
rent alone -- disregarding the actual rent received -- is
neither justified nor practicable. None of the enactments
says so expressly. The said principle has been evolved by
courts by a process of interpretation. Probably a time has
come when the said principle may have to be reviewed. In
this case, however, this question does not arise at this
stage and, therefore, it is not necessary to express a final
opinion on the said issue."
8.14.11 Conclusion: Admittedly, property tax has not been
paid in respect of the aforementioned properties owned by
Respondent No.1, his wife and dependent daughter. Property
tax due to the tune of Rs.1,09,04,478/- was paid during August,
2023 and Rs.24,30,447/- was paid on 24.07.2024. Payment of
property tax voluntarily is a statutory obligation irrespective of
issuance of demand notice. Without paying the property tax,
declaration made on oath by Respondent No.1 in the Form 26
Affidavit that there being no municipal/property tax dues would
undoubtedly amount to non-disclosure/ false declaration.
Petitioner has proved this allegation and Respondent No.1 has
thus failed to prove any compliance much less substantial
101
compliance of this requirement. Issue Nos.1 and 3 are answered
partly in the affirmative.
Regarding Issue No.2:
9. The petitioner having made the allegations as noted
above has contended that false declaration and non-disclosure
of assets and liabilities by the Respondent No.1 in Form 26
Affidavit amounts to corrupt practice as contemplated under
sub-sections(1) and (2) of Section 123 of the R.P. Act, 1951,
materially affecting the result of election.
9.1 For the purpose of this issue provisions of sub-Section (1)
of Section 100 and Section 123 of the R.P. Act, 1951 are
extracted hereunder for immediate reference:
100. Grounds for declaring election to be void.- [(1)
Subject to the provisions of sub-section (2) of [the High court]
is of opinion-
(a) that on the date of his election a returned candidate was
not qualified, or was disqualified, to be chosen to fill the seat
under the Constitution or this Act 5[***] [or the Government
of Union Territories Act, 1963 (20 of 1963)]; or
(b) that any corrupt practice has been committed by a
returned candidate or his election agent or by any other
person with the consent of a returned candidate or his election
agent; or
(c) that any nomination has been improperly rejected; or
(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 or any nomination, or
102
(ii) by any corrupt practice committed in the interests of the
returned candidate [by an agent other than his election
agent), or
(iii) by the improper reception, refusal or rejection of any
vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the
Constitution or of this Act or of any rules or orders made
under this Act,
[the High Court] shall declare the election of the returned
candidate to be void.]
"123. Corrupt practices.--The following shall be deemed to
be corrupt practices for the purposes of this Act:--
(1)"Bribery", that is to say--
(A) any gift, offer or promise by a candidate or his agent or by
any other person with the consent of a candidate or his
election agent of any gratification, to any person whomsoever,
with the object, directly or indirectly of inducing--
(a) a person to stand or not to stand as, or to withdraw or
not to withdraw from being a candidate at an election, or
(b) an elector to vote or refrain from voting at
an election, or as a reward to--
(i) a person for having so stood or not stood, or for having
withdrawn or not having withdrawn his candidature; or
(ii) an elector for having voted or refrained from voting;
(B) the receipt of, or agreement to receive, any
gratification, whether as a motive or a reward--
(a)by a person for standing or not standing as, or for
withdrawing or not withdrawing from being, a candidate; or
(b)by any person whomsoever for himself or any other person
for voting or refraining from voting, or inducing or attempting
to induce any elector to vote or refrain from voting, or any
candidate to withdraw ornot to withdraw his candidature.
Explanation.--For the purposes of this clause the term
"gratification" is not restricted to pecuniary gratifications or
gratifications estimable in money and it includes all forms of
entertainment and all forms of employment for reward but it
103
does not include the payment of any expenses bona fide
incurred at, or for the purpose of, any election and duly
entered in the account of election expenses referred to in
section 78.
(2) Undue influence, that is to say, any direct or indirect
interference or attempt to interfere on the part of the
candidate or his agent, or of any other person with the consent
of the candidate or his election agent, with the free exercise of
any electoral right:
Provided that--(a)without prejudice to the generality of the
provisions of this clause any such person as is referred to
therein who--
(i)threatens any candidate or any elector, or any person in
whom a candidate or an elector interested, with injury of any
kind including social ostracism and ex-communication or
expulsion from any caste or community; or
(ii) induces or attempts to induce a candidate or an elector to
believe that he, or any person in whom he is interested, will
become or will be rendered an object of divine displeasure or
spiritual censure, shall be deemed to interfere with the
free exercise of the electoral right of such candidate or elector
within the meaning of this clause;
(b)a declaration of public policy, or a promise of public action,
or the mere exercise of a legal right without intent to interfere
with an electoral right, shall not be deemed to be interference
within the meaning of this clause."
9.2 POSITION OF LAW:
It is necessary to advert to exposition of law by the Apex Court
on this aspect of the matter which is as under:
9.2.1 Apex Court in the case of UNION OF INDIA Vs.
ASSOCIATION FOR DEMOCRATIC REFORMS reported in
(2002)5 SCC 295 has held that the voter's right to know
104
antecedents including criminal past of a candidate to
membership of Parliament or Legislative Assembly, is a
fundamental right.
9.2.2 Essentiality of declaration of assets and liabilities of a
candidate entering electoral contest has been explained by the
Apex Court in the case of PEOPLES' UNION FOR CIVIL
LIBERTIES (PUCL) Vs. UNION OF INDIA reported in (2003)
4 SCC 399 wherein at paragraph Nos.119 and 120 it has been
held as under:
119. Disclosure of assets and liabilities is another thorny
issue. If the right to information is to be meaningful and if it
is to serve its avowed purpose, I am of the considered view
that the candidate entering the electoral contest should be
required to disclose the assets and liabilities (barring articles
of household use). A Member of Parliament or State
Legislature is an elected representative occupying high public
office and at the same time, he is a "public servant" within
the meaning of the Prevention of Corruption Act as ruled by
this Court in the case of P.V. Narasimha Rao v. State [(1992)
3 SCC 637] . They are the repositories of public trust. They
have public duties to perform. It is borne out by experience
that by virtue of the office they hold there is a real potential
for misuse. The public awareness of financial position of the
candidate will go a long way in forming an opinion whether
the candidate, after election to the office had amassed wealth
either in his own name or in the name of family members viz.
spouse and dependent children. At the time when the
candidate seeks re-election, the citizens/voters can have a
comparative idea of the assets before and after the election
so as to assess whether the high public office had possibly
been used for self-aggrandizement. Incidentally, the
disclosure will serve as a check against misuse of power for
making quick money, a malady which nobody can deny, has
been pervading the political spectrum of our democratic
nation. As regards liabilities, the disclosure will enable the
voter to know, inter alia, whether the candidate has
105
outstanding dues payable to public financial institutions or the
Government. Such information has a relevant bearing on the
antecedents and the propensities of the candidate in his
dealings with public money. "Assets and liabilities" is one of
the important aspects to which extensive reference has been
made in Assn. for Democratic Reforms case [Ed.: See full text
at 2003 Current Central Legislation, Pt. II, at p. 3] . The
Court did consider it, after an elaborate discussion, as a vital
piece of information as far as the voter is concerned. But,
unfortunately, the observations made by this Court in this
regard have a been given a short shrift by Parliament with
little realization that they have a significant bearing on the
right to get information from the contesting candidates and
such information is necessary to give effect to the freedom of
expression.
120. As regards the purpose of disclosure of assets and
liabilities, I would like to make it clear that it is not meant to
evaluate whether the candidate is financially sound or has
sufficient money to spend in the election. Poor or rich are
alike entitled to contest the election. Every citizen has equal
accessibility in the public arena. If the information is meant to
mobilize public opinion in favour of an affluent/financially
sound candidate, the tenet of socialistic democracy and the
concept of equality so firmly embedded in our Constitution
will be distorted. I cannot also share the view that this
information on assets would enable the public to verify
whether unaccounted money played a part in contesting the
election. So long as Explanation 1 to Section 77 of the RP Act,
1951 stands and the contributions can legitimately come from
any source, it is not possible for a citizen/voter to cause a
verification to be made on those lines. In my opinion, the real
purposes of seeking information in regard to assets and
liabilities are those which I adverted to in the preceding
paragraph. It may serve other purposes also, but, I have
confined myself to the relevancy of such disclosure vis-Ã -vis
right to information only.
9.2.3 In the case of Lok Prahari (supra) dealing with aspect of
declaration/ non -disclosure of assets and source of income
amounting to "Undue Influence" - Corrupt Practice under
106
Section 123(2) of the R.P. Act, 1951, the Hon'ble Apex Court at
paragraph Nos.79 and 81 held as under:
79. We shall now deal with Prayer 2 [ Prayer 2 -- "declare
that non-disclosure of assets and sources of income of self,
spouse and dependants by a candidate would amount to
undue influence and thereby, corruption and as such election
of such a candidate can be declared null and void under
Section 100(1)(b) of the 1951 RP Act in terms of the
judgment reported in AIR 2015 SC 1921."] which seeks a
declaration that non-disclosure of assets and sources of
income would amount to "undue influence" -- a corrupt
practice under Section 123(2) of the 1951 RP Act. In this
behalf, heavy reliance is placed by the petitioner on a
judgment of this Court in Krishnamoorthy v. Sivakumar
[Krishnamoorthy v. Sivakumar, (2015) 3 SCC 467 : (2015) 2
SCC (Cri) 359 : AIR 2015 SC 1921] . It was a case arising
under the Tamil Nadu Panchayats Act, 1994. A notification
was issued by the State Election Commission stipulating that
every candidate at an election to any panchayat is required to
disclose information, inter alia, whether the candidate was
accused in any pending criminal case of any offence
punishable with imprisonment for two years or more and in
which charges have been framed or cognizance has been
taken by a court of law. In an election petition, it was alleged
that there were certain criminal cases pending falling in the
abovementioned categories but the said information was not
disclosed by the returned candidate at the time of filing his
nomination. One of the questions before this Court was
whether such non-disclosure amounted to "undue influence"
-- a corrupt practice under the Panchayats Act. It may be
mentioned that the Panchayats Act simply adopted the
definition of a corrupt practice as contained in Section 123 of
the 1951 RP Act.
81. For the very same logic as adopted by this Court in
Krishnamoorthy [Krishnamoorthy v. Sivakumar, (2015) 3 SCC
467 : (2015) 2 SCC (Cri) 359 : AIR 2015 SC 1921] , we are
also of the opinion that the non-disclosure of assets and
sources of income of the candidates and their associates
would constitute a corrupt practice falling under heading
"undue influence" as defined under Section 123(2) of the
1951 RP Act. We, therefore, allow Prayer 2.
107
9.2.4 In the case of S.Rukmini Madegowda (supra) at
paragraph No.37, the Hon'ble Apex Court has held as under:
37. In our considered view, a false declaration with regard
to the assets of a candidate, his/her spouse or
dependants, constitutes corrupt practice irrespective of
the impact of such a false declaration on the election of
the candidate. It may be presumed that a false
declaration impacts the election.
9.2.5 In the case of Karikho Kri (supra) at paragraph Nos.40
and 44, the Hon'ble Apex Court has held as under:
40. In Assn. for Democratic Reforms v. Union of India [Assn.
for Democratic Reforms v. Union of India, (2024) 5 SCC 1 :
(2024) 243 Comp Cas 115] , a Constitution Bench affirmed
that, in terms of the earlier judgments in Assn. for
Democratic Reforms [Assn. for Democratic Reforms v. Union
of India, (2024) 5 SCC 1 : (2024) 243 Comp Cas 115] and
People's Union for Civil Liberties (PUCL) v. Union of India
[People's Union for Civil Liberties (PUCL) v. Union of India,
(2003) 4 SCC 399] , the right of voters to information, which
is traceable to Article 19(1)(a) of the Constitution, is built
upon the jurisprudence that information which furthers
democratic participation must be provided to citizens and
voters have a right to information which would enable them
to cast their votes rationally and intelligently because voting
is one of the foremost forms of democratic participation. It
was further observed that voters have a right to the
disclosure of information which is "essential" for choosing the
candidate for whom a vote should be cast.
44. The decision of this Court in Kisan Shankar Kathore
[Kisan Shankar Kathore v. Arun Dattatray Sawant, (2014) 14
SCC 162] , also demonstrates this principle, as this Court
undertook examination of several individual defects in the
nomination of the returned candidate and found that some of
them were actually insubstantial in character. This Court
noted that two facets required consideration -- whether
there is substantial compliance in disclosing requisite
information in the affidavits filed along with the
nomination and whether non-disclosure of information
on identified aspects materially affected the result of
108
the election. This Court observed, on facts, that non-
disclosure of the electricity dues in that case was not a
serious lapse, despite the fact that there were dues
outstanding, as there was a bona fide dispute about the
same. Similar was the observation in relation to non-
disclosure of municipal dues, where there was a
genuine dispute as to re-valuation and re-assessment
for the purpose of tax assessment. Earlier, in Shambhu
Prasad Sharma v. Charandas Mahant [Shambhu Prasad
Sharma v. Charandas Mahant, (2012) 11 SCC 390] , this
Court observed that the form of the nomination paper is not
considered sacrosanct and what is to be seen is whether there
is substantial compliance with the requirement as to form and
every departure from the prescribed format cannot, therefore,
be made a ground for the rejection of the nomination paper.
9.2.6 Adverting to the aforesaid position of law as enunciated
and analyzing the same, the Hon'ble Apex Court in the case of
Ajmera Shyam (supra) dealing with a challenge to election on
the ground of non-disclosure of income as shown in the income
tax return for four financial years out of the last five financial
years in the Form 26 affidavit, at paragraph Nos.10.11, 10.12,
10.13, 10.34, 10.35 and at 11.1, 11.2, 11.3, 11.4 has held as
under:
10.11 Section 36 (4) of the Act clearly states that the
Returning Officer shall not reject any nomination paper on
the basis of a defect that is not of a substantial character.
Consequently, if the defect is not considered substantial, the
nomination cannot be rejected, and acceptance of such
nomination cannot be deemed improper to invoke the
provisions of Section 100 (1)(d)(i) of the Act.
10.12 Applying the same legal standard, consequently, if
such defect in not disclosing the assets or income is not of a
substantial nature, it cannot be said to be a corrupt practice
within the meaning of Section 100(1)(b) of the Act.
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For the same reasons, the provisions of Section
100(1)(d)(iv) of the Act cannot be attracted, if the defect is
not a material one.
10.13 Thus, in the present case, as we examine the issue as
to whether non-disclosure of income as shown in the income
tax return for four years amounts to non-compliance with
the mandate of Rule 4A of the Rules, and if so, whether the
acceptance of the nomination paper of Respondent No. 1 was
improper to attract the provisions of Section 100(1)(d)(i),
Section 100(1)(b), or Section 100(1)(d)(iv), it must first be
ascertained whether such a defect of non-disclosure was of a
substantial character under the circumstances. If it is so
proved, it has to be then determined whether, this will
attract adverse actions contemplated under Section 100,
which the election petitioner, the Appellant herein, seeks to
invoke.
10.34 We are, thus, of the view that merely because a
returned candidate has not disclosed certain information
related to the assets, courts should not rush to invalidate the
election by adopting a highly pedantic and fastidious
approach, unless it is shown that such concealment or non-
disclosure was of such magnitude and substantial nature that
it could have influenced the election result.
In this case, it has not been demonstrated that such
concealment or non-disclosure of certain information related
to assets was of a substantial nature that could have
materially affected the result of the election of the returned
candidate. Of course, it was observed by this Court in Lok
Prahari (supra), S. Rukmini Madegowda (supra), etc., that if
it is found that there has been non-disclosure of assets, it
amounts to a corrupt practice. But the non-disclosure of
income as per Income Tax Return in the present case, as
discussed above, is not of a substantial nature to be
considered a corrupt practice.
10.35 The true test, in our opinion, would be whether the
non-disclosure of information about assets in any case is of
consequential or inconsequential import, finding of which will
be the basis for declaring the election valid or void as the
case may be.
11. CONCLUSION
11.1 Judicial intervention in election disputes concerning
disclosure of information, as discussed above, was prompted
by the quest for sanitising the electoral process by
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eliminating polluting elements by making candidates'
criminal antecedents public. Aiming to prevent criminals from
participating in elections to maintain purity of the electoral
process -- essential for the proper functioning of
parliamentary democracy -- the court was compelled to
exercise its extraordinary power to issue specific directions.
Consequently, not only disclosure of criminal antecedents,
but also related obligations to disclose assets, liabilities, and
educational qualifications of election candidates became
mandatory. The knowledge of the criminal antecedents,
assets and educational qualifications of the candidates by
voters certainly invigorates the electoral process, which is
ensured by obligatory disclosure by the candidate.
However, the Court has made a subtle distinction
between non-disclosure of criminal antecedents and
that of assets and educational qualifications. While
disclosure of criminal antecedents in the electoral
process was the most critical element to maintain the
purity of the electoral process which has to be
scrupulously adhered to, disclosure of assets and
educational qualifications were considered as
attending supplementary requirements to strengthen
the electoral process, of which there will be certain
scope for consideration as to whether it is of
substantial or inconsequential nature.
In the light of the above, this disclosure requirement
as far as assets and educational qualification is
concerned, should not be unreasonably stretched to
invalidate an otherwise validly declared election over
minor technical non-compliances that are not of
substantial character, and should not be the basis for
nullification of the people's mandate.
11.2 In the light of the legal position exposited, on
examination of the facts in the peculiar background obtaining
in the case, we hold that the non-disclosure of income in the
income tax return for four financial years by Respondent No.
1, is not a defect of substantial character. Therefore, the
nomination could not have been rejected under Section
36(2) of the Representation of the People Act, 1951 as
contended by the Appellant and hence, no illegality was
committed by the Returning Officer in accepting the
nomination of the Respondent No. 1. Resultantly, the penal
clause cannot be invoked to invalidate Respondent No. 1's
election under Section 100(1)(d)(i) of the Act on the ground
that the nomination of Respondent No. 1 was improperly
accepted.
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11.3 As we have held that the defect of non-disclosure
mentioned is not of a substantial nature, for the same reason
the Respondent No. 1 cannot be considered to have indulged
in a corrupt practice within the meaning of Section 123 (2) of
the Act, and thus, the election of Respondent No. 1 cannot
be rendered void under Section 100(1)(b) of the Act.
11.4 Consequently, on the same consideration, it cannot be
also said that the Respondent No. 1 did not comply with the
relevant provisions of the Act or any rule or order made
under the Act, to attract the provisions of Section
100(1)(d)(iv) of the Act.
(emphasis added)
9.3 The issue No.2 framed as above is required to be
adverted and adjudicated in the light of aforesaid settled
proposition of law.
9.4 On the analysis of the evidence led by the parties while
answering issue Nos.1 and 3 this Court has come to the
conclusion that there is non-compliance of the requirement of
disclosure of sources of income and assets and liabilities as well
as the false declaration in respect of the following four items:
(i) Non-disclosure of businesses and
corresponding current account balance relating
to Respondent No.1 and his wife:
(refer paragraph Nos.8.2. to 8.2.17)
(ii) Non-disclosure of agricultural land in
Sy.No.21 measuring 2 acres 22 guntas owned
by Respondent No.1.
(refer paragraph Nos.8.4 to 8.4.6)
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iii) Non-disclosure of nature of land and their
approximate market value:
(refer paragraph Nos.8.4.17 to 8.4.24)
(iv) Declaration of Municipal/Property Tax dues
pertaining to properties of the Respondent
No.1, his wife and daughter as described at
Clause (7)B(ii)(a to f) as "Nil" at Clause
(8)8(vi).
(refer paragraph Nos. and 8.14 to 8.14.11)
Discussion/Analysis:
9.4.1 Admittedly, Respondent No.1 has not disclosed his
sources of income. He has neither disclosed the details of his
following business entities/concern nor their corresponding
current account balance details ;
(1) R and R Bar and Restaurant;
(2) Bhagini Residency;
(3) Srinivasa Wines;
(4) Bhagini Palace;
(5) Wholesale Liquor Proprietorship Concern.
9.4.2 Similarly, there is no disclosure with regard to business
being run by his wife under the name and style of "Mini Bar and
Restaurant", Baiyappanahalli as well as its current account
balance, which is her source of income.
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9.4.3 Though in the written statement it is contended that the
bank account details given under Sl.No.(7)A(ii) and the
investment details given under Sl.No.(7)A(iii) includes all the
account balance details, no evidence is placed on record by the
Respondent No.1 providing specific details of the aforesaid
business entities /concerns. Similarly, no separate details are
provided with regard to their corresponding Current accounts
balance and the Savings Bank accounts balance.
9.4.4 When admittedly the main sources of income of the
Respondent No.1 and his wife being the aforesaid hotel and
liquor businesses (even as admitted by Respondent No.1 in his
cross examination while answering question Nos. 8, 9, 10, 21,
22, 23 as extracted hereinabove). In the absence of any
satisfactory explanation being given, it would be difficult to
accept that there is a "substantial compliance" of the
requirement of declaration/disclosure with regard to sources of
income and current account balance pertaining to the
businesses which are said to be the main source of income.
9.4.5 Similarly, respondent has not disclosed 2 acres and 22
guntas of land in Sy.No.21 owned by him. Though an
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explanation is offered that said extent of land forms part of
deed of sale dated 09.03.2006, under which he purchased land
in Sy.No.19 measuring 2 acres 32.5 guntas, and that due to
oversight same is not mentioned, since even the approximate
market value of the same is not declared as noted above, there
is no substantial compliance.
9.4.6 Respondent No.1 has declared land bearing Sy.No.164,
Kothakote Village, Bagepalli Taluk, measuring 1 acre 10 guntas
owned by his daughter Amrita S, as agricultural land under
Sl.No.(7)B(i)(b).
9.4.7 Similarly, he has declared land bearing Sy.Nos.173, 174,
138/2, 158/2, 172 and 157 Kothakote Village of Bagepalli
Taluk measuring 10 acres and 10 guntas owned by the
Respondent No.1 as agricultural land under Sl.No.(7)B(i)(j). The
explanation offered by the Respondent No.1 for non-disclosure
of nature of land as due to oversight and unintentional, and that
there has been no non-agricultural activity being carried on in
the aforesaid lands though they have been converted to
commercial purposes, cannot be accepted, inasmuch as,
aforesaid relevant Sl.Nos.(7)B(i)(b) and (7)B(i)(j) are meant for
115
providing details of agricultural properties while Sl.No.(7)B(ii) is
meant for providing details of non-agricultural properties. This
cannot be a case of oversight. This also will have effect on the
valuation of the properties as nature of land as non-
agricultural/residential/commercial/industrially converted lands
carry higher market value than the agricultural lands.
9.4.8 The reason for non-disclosure of nature of lands, in the
light of Form 26 Affidavit providing specific columns thereof,
cannot be countenanced merely on the say of the same being a
bonafide mistake or oversight.
9.4.9 Section 45-B of the Karnataka Stamp Act, 1957 provides
for constitution of Central Valuation Committee in terms of
which Central Valuation Committee is the final authority for
formulation of policy, methodology and administration of
market value guidelines in the State which is also empowered
to constitute Market Valuation Sub-Committees in each sub-
Districts and Districts, for estimation and revision of Market
Value Guidelines of the properties for the purpose of Section
45-A of the Act. Section 45-A of the Act provides the procedure
to deal with undervalued instrument of conveyance. Relevant
116
also to refer Section 2(mm) of Karnataka Stamp Act which
defines "Market Value" to mean, in relation to any property,
which is the subject-matter of an instrument, means the price
which such property would have fetched, in the opinion of the
Deputy Commissioner or the Appellate Authority or the Chief
Controlling Revenue Authority, if sold in open market on the
date of execution of such instrument or the consideration stated
in the instrument, whichever is higher."
9.4.10 When the Form 26 Affidavit requires "Approximate
Current Market Value" to be disclosed, it means market value
for the purpose of buying and selling. Further mere statement
that the declaration of the approximate current market value of
the property as deemed fit by the Respondent No.1 without
reference to nature of land and "Actual Current Market Value"
on the test of property being put on sale, cannot be accepted to
be a true declaration of the approximate current market value
of the property. Though, reference to the Guidelines Value
may not be the mandatory yardstick it cannot be ruled out that
the same would lend acceptable basis to calculate "Approximate
Current Market Value" particularly in the light of the term
117
"market value" as defined under the Karnataka Stamp Act. The
gap between approximate market value disclosed by the
Respondent No.1 in his Form 26 Affidavit and the market value
of the property shown in the Guidelines Value issued by the
State appears to be substantial.
9.4.11 As per the deposition of PW2 undisputedly Respondent
No.1 had not paid the property tax. There is no explanation of
any nature whatsoever either with regard to any pending
bonafide disputes pertaining to assessment/reassessment of the
value and payment of tax, which was the issue in the case of
KISAN SHANKAR KATHORE Vs. ARUN DATTATRAY
SAWANT AND OTHERS reported in (2014) 14 SCC 162.
9.4.12 Property tax due to the tune of Rs.1,09,04,478/- was
paid during August, 2023 and Rs.24,30,447/- was paid on
24.07.2024.
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Conclusion:
9.5 ''False statement or a false declaration, that too
made on oath, inherently carries with it corrupt,
deceitful, dishonest and fraudulent intent, which once
proved, neither requires further probe of its innocence
nor the need of testing the same through the lens of
substantiality.''
9.5.1 Merely because Respondent No.1 owns and possesses
assets worth several hundred crores cannot be the reason to
condone or exempt the mandatory requirement of true and full
disclosure of information/details enlisted above. His possessing
huge amount of wealth cannot be the reason to accept the
contention of "substantial compliance" merely because the
value of undisclosed assets and the outstanding amount due to
the Government are comparatively less or insignificant. When
the value of undisclosed assets and the value of outstanding
amount due to the Government are viewed specifically and
individually they indeed form a substantially huge amounts.
They do not remain a mere technicality.
9.5.2 It is one thing to say that for a candidate like Respondent
No.1 who owns assets worth several hundred crores, dues of
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this nature are insignificant. But it is another thing to view the
seriousness of the false declaration, declaring dues as 'NIL' by a
candidate who is going to occupy high public office for the third
time. It is in this perspective, a declaration of municipal
property tax dues to be nil when indeed they are due and liable
to be paid, which impacts the election process.
9.5.3 When admittedly the Respondent No.1 has not disclosed
the sources of income, details of the businesses being run by
him and his wife as noted above, and has also failed to disclose
lands owned by him and their nature, and when he has falsely
declared of he not being liable to pay any dues specifically
towards the property tax as noted above, the same would
amount to ''corrupt practice'', amounting to ''undue influence''
falling within the ambit of sub-Section(2) of Section 123 and
would form a ground for declaring his election void under clause
(b) of sub-Section of (1) of Section 100 of R.P. Act, 1951.
9.5.4 Requirement of filing an affidavit duly filled with all true
particulars on oath is another mandatory requirement
contemplated under Section 100 (1)(d)(iv) read with Rule 4A
of the Conduct of Election Rules, 1961. Since the Respondent
120
No.1 as found above has not only made a false declaration but
has also failed to disclose the required information which will
have to be construed as non-compliance with the mandatory
requirement of Rule 4A of the Conduct of Election Rules, 1961,
eventually attracting the consequences contemplated under
Section 100(1)(d)(iv) of the R.P. Act, 1951. Rule 4A of the
Conduct of Election Rules, 1961, reads as under:
4A. Form of affidavit to be filed at the time of delivering
nomination paper.--The candidate or his proposer, as the
case may be, shall, at the time of delivering to the Returning
Officer the nomination paper under sub-section (1) of section
33 of the Act, also deliver to him an affidavit sworn by the
candidate before a Magistrate of the first class or a Notary in
Form 26.
9.5.5 Clearly, non-disclosure of source of income, false
declaration of nature of lands and their valuation as noted
above and false declaration of there being 'NIL' dues towards
property tax, are of substantial character and same cannot be
overlooked merely, as contended by the Respondent No.1 to be
due to oversight or bonafide mistake, when obtaining such
informations has been recognised to be the fundamental right
of the voter guaranteed under Article 19(1)(a) of the
Constitution of India.
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9.5.6 Thus on the aforesaid four counts, the petitioner has
indeed proved non-disclosure and false declaration of
information regarding sources of income, assets and liabilities, a
''corrupt practice'' falling within the purview of sub-section (2)
of Section 123 of the R.P. Act, 1951, amounting to ''undue
influence'' irrespective of impact of such non disclosure and
false declaration on the election of the candidate, as held by
Apex Court in the case of Lok Prahari and S.Rukmini
Madegowda (supra).
9.5.7 Therefore, the contention of learned Senior counsel
appearing for respondent No.1, that the petitioner is required to
plead and prove the ''direct'' or ''indirect'' ''interference'' or
''attempt to interfere'' with free exercise of electoral rights
cannot be accepted.
Regarding Issue No.4:
10. The above discussion, findings and conclusion takes this
Court to the consideration of issue No.4 for grant of prayers as
sought for in the petition.
10.1 The first prayer is to set-aside of the election of
Respondent No.1 to the 16th Karnataka Legislative Assembly
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from 140-Bagepalli Assembly Constituency. In the light of
discussion and the conclusion arrived at while dealing with issue
No.2, this Court has held that non disclosure and false
declaration of information regarding sources of income of the
respondent No.1 and his wife as well as assets and liabilities fall
within the ambit of sub-Section (2) of Section 123 and the
same is the ground for declaring the election to be void under
sub-Section (1)(b) of 100 of the R.P. Act, 1951.
10.2 The second prayer sought for is to declare the petitioner
as duly elected candidate to fill the seat of 16th Karnataka
Legislative Assembly from 140-Bagepalli Assembly
Constituency.
10.3 Learned Senior counsel for the petitioner relying upon the
Section 101 of the R.P. Act, 1951, contended that since the
Respondent No.1 being the returned candidate has obtained
votes by corrupt practice, petitioner being the candidate who
has received next majority of valid votes, he be declared as
duly elected candidate. In support of this submission, learned
Senior counsel appearing for the petitioner relied upon the
judgment of the Hon'ble Apex Court in the case of
VISHWANATHA REDDY VS. KONAPPA RUDRAPPA
123
NADGOUDA AND OTHERS reported in 1968 SCC Online20,
wherein at paragraph No.13 it has held as under:
13. The view that we are taking is consistent with the
implication of CI. (b) of Section 101. When in an election
petition which complies with Section 84 of the Act it is found
at the hearing that some votes were obtained by the returned
candidate by corrupt practices, the Court is bound to declare
the petitioner or another candidate elected if, but for the
votes obtained by the returned candidate by corrupt practice,
such candidate would have obtained a majority of votes. In
cases falling under Clause (b) of Section 101 the Act requires
merely proof of corrupt practice and obtaining votes by
corrupt practice : it does not require proof that the voters
whose votes are secured by corrupt practice had notice of the
corrupt practice. If for the application of the rule contained in
Clause (b) notice to the voters is not a condition precedent,
we see no reason why it should be insisted upon in all cases
under Clause (a). The votes obtained by corrupt practice by
the returned candidate, proved to be guilty of corrupt
practice, are expressly excluded in the computation of total
votes for ascertaining whether a majority of votes had been
obtained by the defeated candidate and no fresh poll is
necessary. The same rule should, in our judgment, apply
when at an election there are only two candidates and the
returned candidate is found to be under a statutory
disqualification existing at the date of the filling of the
nomination paper."
10.4 She also relied upon the judgment of the Hon'ble Apex
Court in the case of SYEDA NOOR FATIMA ZAIDI Vs. HEENA
UROOZ AND OTHERS reported in 2024 SCC OnLine SC 4104
referring to paragraph No.21 which reads as under:
'' 21. Section 37(2)(b) of the Act does provide for declaring the
person having the second highest number of votes, if the same
be a majority of the valid votes without counting the votes
secured by the originally returned candidate. The position in
law holding the field thus far, seems to be to declare a
candidate elected on the disqualification of another, only if
there were two candidates in fray and not where candidates are
more than two. Reference can be made to the 5-Judge Bench
124
decision in Vishwanatha Reddy v. Konappa Rudrappa
Nadgouda, AIR 1969 SC 6046. As is vivid from the paragraph
cited infra, the Court did not lay down a blanket principle that
one candidate could be declared returned on the other's
disqualification only if there were two candidates in total, and in
no other scenario. The Court clearly suggested that in an
election with more than two candidates in the fray, notice to
the voters 'may assume significance', and the candidate with
the next highest number of votes would not be declared elected
as a sequitur to the disqualification of the original returned
candidate. It is apparent from the exposition of the law that the
the course of action in elections with more than two candidates
and the returned candidate being disqualified, would turn on
the phrase 'may'. In Prakash Khandre v. Dr. Vijay Kumar
Khandre, (2002) 5 SCC 568, a 3-Judge Bench, while following
the dicta in Vishwanatha Reddy (supra), cautioned that 'for one
seat, there were five candidates and it would be impossible to
predict or guess in whose favour the voters would have voted if
they were aware that the elected candidate was disqualified to
contest election or if he was not permitted to contest the
election by rejecting his nomination paper on the ground of
disqualification to contest the election and what would have
been the voting pattern.'7 This was reiterated recently by 3
learned Judges in Muniraju Gowda P M v. Munirathna, (2020)
10 SCC 192.''
10.5 Referring to the above, she emphatically submitted that as
per the latest judgment of the Hon'ble Apex Court in the case of
Syeda Noor Fatima (supra), the course of action hitherto
available to declare the candidate with next highest number of
votes to be available only under the circumstances, if there
were two candidates in total and no other scenario as held in
Vishwanatha Reddy (supra) case, need not be applied as a
blanket principle. She emphatically submitted that in the light of
language employed under Section 101 of the R.P. Act, 1951,
125
the petitioner being the next candidate who obtained the
highest valid votes is the only choice to be declared by strictly
applying the provisions of said section as there is no scope for
equitable consideration of the matter.
10.6 Per contra, learned Senior counsel for the Respondent
No.1 referring to the very same paragraph No.13 of the
judgment in the case of Vishwanatha Reddy (supra) insists
that declaration of candidate obtaining next highest votes as
elected could apply only in the scenario when there is only two
candidates in respect of a single seat. He further refers to the
judgment of the Hon'ble Apex Court in the case of VATAL
NAGARAJ Vs. R. DAYANAND SAGAR reported 1975 4 SCC
127 wherein at paragraph Nos.29 to 32, the Hon'ble Apex
Court held as under:
'' 29. The only bitter bone of contention between the
parties which survives is covered by Issue 11. The sanctity of
the poll verdict will stand violated if the tribunal, without the
strictest compulsion of statutory provisions, substitutes for an
elected representative a court-picked candidate. The relevant
part of Section 101 may well be set out at this stage:
"101. Grounds for which a candidate other than the returned
candidate may be declared to have been elected.-- If any
person who has lodged a petition has, in addition to calling in
question the election of the returned candidate, claimed a
declaration that he himself or any other candidate has been
duly elected and the High Court is of opinion
126
(b) that but for the votes obtained by the returned candidate
by corrupt practices the petitioner or such other candidate
would have obtained a majority of the valid votes,
the High Court shall after declaring the election of the returned
candidate to be void declare the petitioner or such other
candidate, as the case may be, to have been duly elected."
The insistent requirements of the section are that firstly the
returned candidate must have obtained votes by the operation
of corrupt practices; secondly, such tainted votes must be
quantified with judicial assurance and thirdly, after deduction of
such void votes, the petitioner or other candidate must be
shown to have secured a majority of the valid votes. In the
present case, the decisive factor is the satisfactory proof of the
number of votes, if any, attracted by the appellant into his
ballot box by the corrupt means. How many voters were lured
for certain by the expenditure of several thousand rupees more
than is sanctioned by the law? Did the campaigning in those
hired cars snatch votes at all? Did deleterious leaflets draw into
Nagaraj's net a specific set of voters? To capsule the enquiry,
how many votes were definitely obtained by the use of each
corrupt practice? This hinges not on mystic maybes and vague
imponderables and prejudice to prospects but on tangible
testimony that a number of persons, arithmetically assessed,
swung towards and probably voted actually for the returned
candidate, directly magnetised by the corrupt practice, so that
one could positively predicate those votes as having been
obtained ... by corrupt practices. This clear nexus is of critical
importance. Happy speculation, hypothetical possibility and
clairvoyant surmise, however imaginatively and objectively
made, cannot displace this drastic requirement. Where, for
instance, a certain number of persons, in violation of the legal
ban, have been transported by the candidate and they have
been shown, with fair assurance, to have cast their votes in his
favour or where specific cases of false personation or double
voting at the instance of the candidate or his agents had
occurred and the margin of difference between the victor and
the nearest vanquished is narrow and the gap is more than
made up by the illegally procured votes, the case for the
application of Section 101 will surely arise. Courts do not elect
candidates or sign into Parliamentary seats those whom the
constituency has not yet favoured. The normal democratic
process cannot be bypassed conveniently on the score of
corrupt practices by the rival except in those exceptional cases
where Section 101 stands fulfilled. You must win not only an
election petition but an election itself.
127
30. The decisions cited before us by Shri A.K. Sen do not take
us further. Indeed there is a paucity of precedents in this area,
for reasons which are not difficult to guess. In T. Nagappa v.
T.C. Basappa [AIR 1955 SC 756 : 11 ELR 203] this Court had to
deal with a case where the lead of the winner was only 34
votes, there was cogent proof of about 60 voters having been
transported by the offending candidates to the polling booth of
whom 47 voted for him so that, if their votes were struck out,
the margin of difference would disappear and the loser would
have secured the larger number of valid votes. There the
learned Judges were at pains to point out that the petitioner got
only 34 votes less than the Respondent and that the Tribunal
(by a majority) had found that the bus procured by Respondent
1 did carry to the polling booths about 60 voters, leading to the
legitimate presumption that the majority of them did vote for
Respondent 1. Under these circumstances, the Court did not
care to interfere with the Tribunal's factual view that if the
votes attributable to the corrupt practice were left out of
account, the petitioner would have gained an undisputed
majority. In that very case while pointing out that the High
Court should not have upset a finding of fact of the Tribunal,
this Court cautiously added that "it may be that the view taken
by the dissenting member of the Tribunal was the more
proper". Apparently, the dissenting member was not inclined to
upset the poll verdict even on this evidence. Where there are a
number of serious candidates contesting from a constituency,
the situation becomes complex and unpredictable. It is
convenient assumption, not reasoned probability, to guess for
whom, if at all, the voters of the winner who used corrupt
practices would have alternatively cast their franchise. Sheer
disenchantment with the vicious techniques might well have
turned away many sensitive souls from the polling station. In
the appeal before us the lead is over a thousand votes, no link
between the polluted practice and the voters affected is forged,
ten candidates were in the field and some of them had polled
well. The observations of this Court in Jamuna Prasad case
[Jamuna Prasad v. Lachhi Ram, AIR 1954 SC 686, 689 : (1955)
1 SCR 608] that "there is nothing to show why the majority of
the first Respondent's voters would have preferred the sixth
Respondent and ignored the third and fourth Respondents"
underscores the hazard in such multiple-contest situations. Shri
A.K. Sen's persuasive invitation to compute on imperfect data is
to ask us to crystal-gaze. We decline the essay in the occult.
31. In the present case the reasoning of the trial court dealing
with this branch is not brief but a blank. All that the Court has
said is that the difference is only 1044 votes between the
appellant and the Respondent and that a reasonable judicial
guess is not taboo: "Therefore it can be reasonably concluded
128
as per clause (b) of Section 101 of the A.P. Act that but for the
votes obtained by the returned candidate (first Respondent) by
corrupt practices, the petitioner would have obtained a majority
of the valid votes." We are sorry the sequitur is too obscure for
us to see. There were ten candidates in the field and the
curious plea bearing on this relief in the election petition
appears to be that the petitioner has done social service and
deserved victory and so there was no need to send him back to
the constituency to seek a re-election -- strange compliance
with Section 101 of the Act Indeed, the petitioner, himself a
barrister and a former Deputy Minister, conversant with the
requirements of election law knows that where a claim for a
declaration in his favour is put forward at least formal
averments tacking the corrupt practice onto obtaining of
definite votes was necessary. On the other hand, all that he
states is that as a result of the hate campaign against the
Muslims and the Tamils, alleged to have been carried on by the
appellant and his agents,
"the Tamil-speaking people thought that it would be to their
advantage to support the D.M.K. candidate and the Muslim
population thought that they would be protected only if the
Muslim League candidate was returned to the election".
Therefore what? After adding that these two candidates had
secured a large number of votes from the Tamils and the
Muslims, the petition makes a puzzling statement:
"These votes would have been polled by the petitioner and the
Congress Party but for the corrupt practices under Section 123
committed by the first Respondent, his election agent and the
agents of the first Respondent ...."
The abstruse logic, the bare assertion and the total absence of
a tie-up between specific corrupt practices and the number of
votes obtained thereby lead us to an outright rejection of the
relief, not merely for want of proper averments but also for a
total void in proof. Absent visible welding of the electoral vice
established into the numerical measure of the victory, the votes
at the polls alone, not the writ of the Court, can seat him in the
legislature. We have no hesitation in reversing the finding on
Issue 11.
32. The conclusion therefore is that the appellant's election is
set aside and the constituency has to choose its representative
by a fresh poll. It must be noted that half the term has already
run out since the election which we now set aside. Having
regard to the democratic process and the duty not to keep
Chamarajpet orphaned in the legislature, we expect the Chief
129
Election Commissioner to proceed expeditiously to hold a fresh
election.''
10.7 He also relies upon the judgment of the Hon'ble Apex
Court in the case of PRAKASH KANDRE Vs.
DR.VIJAYAKUMAR KANDRE AND OTHERS reported in
(2002) 5 SCC 568 wherein at paragraph Nos.8 to 24 it has
held as under:
Re: Question 1
8. At the time of hearing of these appeals, learned Senior
Counsel Mr Ashok Desai submitted that the order passed by
the High Court declaring election petitioner Dr Vijay Kumar
Khandre as elected is, on the face of it, illegal and erroneous
as election was contested by 5 candidates and in support of his
submission, he referred to various decisions rendered by this
Court. As against this, Mr K.N. Bhat, learned Senior Counsel
for Respondent 1 submitted that the High Court rightly
declared Dr Vijay Kumar Khandre as elected and the decision
of the High Court is based on the provisions of Section 101 of
the Act.
9. For appreciating the aforesaid submissions, we would first
refer to the relevant provisions of the Act, namely, Sections
53, 84 and 101 of the Act which are as under:
"53. Procedure in contested and uncontested elections.--(1) If
the number of contesting candidates is more than the number
of seats to be filled, a poll shall be taken.
(2) If the number of such candidates is equal to the number of
seats to be filled, the Returning Officer shall forthwith declare
all such candidates to be duly elected to fill those seats.
(3) If the number of such candidates is less than the number
of seats to be filled, the Returning Officer shall forthwith
declare all such candidates to be elected and the Election
Commission shall, by notification in the Official Gazette call
upon the constituency or the elected members or the members
of the State Legislative Assembly or the members of the
130
electoral college concerned as the case may be, to elect a
person or persons to fill the remaining seat or seats:
Provided that where the constituency or the elected members
or the members of the State Legislative Assembly or the
members of the electoral college having already been called
upon under this sub-section, has or have failed to elect a
person or the requisite number of persons, as the case may
be, to fill the vacancy or vacancies, the Election Commission
shall not be bound to call again upon the constituency, or such
members to elect a person or persons until it is satisfied that if
called upon again, there will be no such failure on the part of
the constituency of such members.
84. Relief that may be claimed by the petitioner.--A petitioner
may, in addition to claiming a declaration that the election of
all or any of the returned candidates is void, claim a further
declaration that he himself or any other candidate has been
duly elected.
101. Grounds for which a candidate other than the returned
candidate may be declared to have been elected.--If any
person who has lodged a petition has, in addition to calling in
question the election of the returned candidate, claimed a
declaration that he himself or any other candidate has been
duly elected and the High Court is of opinion--
(a) that in fact the petitioner or such other candidate received
a majority of the valid votes; or
(b) that but for the votes obtained by the returned candidate
by corrupt practices the petitioner or such other candidate
would have obtained a majority of the valid votes,
the High Court shall after declaring the election of the returned
candidate to be void declare the petitioner or such other
candidate, as the case may be, to have been duly elected."
10. From a reading of sub-section (2) of Section 53, it is clear
that if the number of candidates is equal to the number of
seats to be filled, the Returning Officer has to declare all such
candidates to be duly elected to fill those seats, meaning
thereby it would be an uncontested election. Further, if the
number of contesting candidates is more than the number of
seats to be filled, a poll is required to be taken. Finally, after
taking poll, if one candidate is declared elected and there are
only two candidates who contested for the election, and if it is
found that the elected candidate was disqualified for one or
131
the other reason for being declared to be elected then his
election would be set aside and the unsuccessful candidate, if
otherwise eligible, could be declared as elected and that relief
could be granted in view of Section 53 read with Section 84 of
the Act.
11. However, the question which requires consideration is -- if
there are more than two candidates for one seat and the
elected candidate is subsequently found to be disqualified,
whether the candidate who has secured more votes than the
remaining candidates should be declared as elected or not. For
this, we would consider the ingredients of Section 101 which
inter alia provide 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
if--
(a) in fact the petitioner or such other candidate received a
majority of valid votes; or
(b) but for the votes obtained by the returned candidate by
corrupt practices, the petitioner or such other candidate would
have obtained a majority of the valid votes.
12. Therefore, the first ingredient for declaring the election
petitioner or other candidate to have been duly elected
depends upon error for various reasons in counting of valid
votes and if it is found that in fact the petitioner or such other
candidate received a majority of valid votes, he is to be
declared elected.
13. The second ingredient provides for establishing that the
votes obtained by the returned candidate were obtained by
corrupt practices and but for such votes the petitioner or such
other candidate would have obtained a majority of valid votes.
Say as in the present case, the difference between the elected
candidate and the election petitioner is of 10,327 votes and if
it is established that the elected candidate obtained more than
10,327 votes by corrupt practices then the petitioner or such
other candidate who has obtained majority of valid votes could
be declared as elected.
14. However, in an election where the elected candidate is
declared to be disqualified to contest election and there are
more than two candidates contesting election, there is no
specific provision under the Act under which the person who
has secured the next highest number of votes could be
declared as elected. The Act is silent on this point. Further, it
cannot be presumed that the votes secured by the disqualified
132
elected candidates would have been wasted or would have
been secured by the next candidate who has secured more
votes. If disqualified candidate was not permitted to contest
the election then how the voters would have voted in favour of
the candidate who has secured more votes than the other
remaining candidates would be a question in the realm of
speculation and unpredictability. In such a situation, declaring
the election of the returned candidate on the ground of his
initial disqualification to contest the election by itself would not
entitle the election petitioner or any other candidate to be
declared elected.
15. The learned counsel for the parties referred to various
decisions rendered by this Court and we would refer to them in
chronological order. The Constitution Bench of this Court
in Konappa Rudrappa Nadgouda v. Vishwanath Reddy [(1969)
2 SCR 90 : AIR 1969 SC 604 sub nom Vishwanatha
Reddy v. Konappa Rudrappa Nadgouda] dealt with the case
where one Vishwanath Reddy was declared elected to Mysore
Legislative Assembly and that election was challenged by
Nadgouda who was a contesting candidate on the ground that
Reddy was disqualified from standing as a candidate for
election. This Court by order dated 19-7-1968 held that
election of Reddy was void and that votes cast in his favour be
treated as thrown away. The Court held "as there was no other
contesting candidate, we declare the appellant (election
petitioner) as elected to the seat from Yadgiri Constituency".
That order was challenged by filing a review application which
was granted and question whether it was open to the Court on
finding recorded about disqualification of Reddy to declare
Nadgouda as duly elected to Mysore Legislative Assembly was
dealt with and decided. The Court referred to an earlier
decision in Keshav Lakshman Borkar v. Dr Deorao Lakshman
Anande [AIR 1960 SC 131 : (1960) 1 SCR 902] wherein it was
held that a candidate whose nomination paper is accepted
after scrutiny, is a validly nominated candidate "at least for the
purpose of receiving votes at the election", and that the
candidate must be treated as a person for whom votes could
be given. The Court on that view held that where there are
only two candidates for a seat and the election of the
candidate declared elected is set aside on the ground that he
was disqualified, the defeated candidate cannot be declared
elected, and there must be a fresh election. In the opinion of
the Court the votes cast in favour of the disqualified candidate
cannot be said to be thrown away unless there is a "special
pleading" that certain voters had cast their votes with the
knowledge or notice that the candidate for whom they had
voted was not eligible for election, and they had deliberately
thrown away their votes in favour of the disqualified person; in
133
the absence of such a plea it cannot be said that the votes cast
in favour of a person who was by law disqualified from being
nominated, but who was in fact nominated, were thrown away.
In the opinion of the Court, a defeated candidate out of the
two who contested the election may be declared elected under
Section 84 read with Section 101 of the Act, if he proves that
the voters had notice of the disqualification of the successful
candidate.
16. The correctness of the said view was challenged before the
Constitution Bench. The Court considered various English
decisions cited at the Bar and observed that the cases decided
by the courts in the United Kingdom appear to have proceeded
upon some general rule of election law that the votes cast in
favour of a person who is found disqualified for election may
be regarded as thrown away only if the voters had notice
before the poll of the disqualification of the candidate.
Thereafter, the Court pertinently observed but in our judgment
the rule which has prevailed in the British courts for a long
time has no application in our country. The rule enunciated in
U.K. has only the merit of antiquity; the rule cannot be
extended to the trial of disputes under our election law, for it
is not consistent with our statute law, and in any case the
conditions prevailing in our country do not justify the
application of that rule. The Court also considered Section 53
of the Act and held that it renders a poll necessary only if
there are more candidates contesting the election than the
number of seats contested and if the number of candidates
validly nominated is equal to the seats to be filled, no poll is
necessary and where by an erroneous order of the Returning
Officer poll is held which, but for that order, was not
necessary, the court would be justified in declaring those
contesting candidates elected, who, but for the order, would
have been declared elected.
17. Thereafter, the Court observed thus: (AIR p. 608, para 12)
"When there are only two contesting candidates, and one of
them is under a statutory disqualification, votes cast in favour
of the disqualified candidate may be regarded as thrown away,
irrespective of whether the voters who voted for him were
aware of the disqualification. This is not to say that where
there are more than two candidates in the field for a single
seat, and one alone is disqualified, on proof of disqualification
all the votes cast in his favour will be discarded and the
candidate securing the next highest number of votes will be
declared elected. In such a case, question of notice to the
voters may assume significance, for the voters may not, if
134
aware of the disqualification have voted for the disqualified
candidate."
18. The Court also considered Section 101 and held as under:
(AIR pp. 608-09, para 13)
"The votes obtained by corrupt practice by the returned
candidate, proved to be guilty of corrupt practice, are
expressly excluded in the computation of total votes for
ascertaining whether a majority of votes had been obtained by
the defeated candidate and no fresh poll is necessary. The
same rule should, in our judgment, apply when at an election
there are only two candidates and the returned candidate is
found to be under a statutory disqualification existing at the
date of the filing of the nomination paper."
19. In Thiru John v. Returning Officer [(1977) 3 SCC 540 :
(1977) 3 SCR 538] the Court dealt with the biennial election to
the Rajya Sabha from the State of Tamil Nadu where the
voting pattern is single transferable vote wherein the elected
candidate Shri John was found by the Court to be statutorily
disqualified for election. The Court considered the question
whether the votes secured by such candidate be regarded as
"thrown away" and in consequence the next candidate be
declared elected. In that context the Court observed: (SCC p.
555, para 55)
"55. Again, the answer to this question, in our opinion, must
be in the negative. It is nobody's case that the electors who
voted for Shri John, had at the time of election, knowledge or
notice of the statutory disqualification of this candidate. On the
contrary, they must have been under the impression that Shri
John was a candidate whose nomination had been validly
accepted by the Returning Officer. Had the electors notice of
Shri John's disqualification, how many of them would have
voted for him and how many for the other continuing
candidates, including Sarvshri Subrahmanyam and Mohana
Rangam, and in what preferential order, remains a question in
the realm of speculation and unpredictability."
20. The Court also referred to the following observations made
by Hidayatullah, C.J. speaking for the Court in R.M.
Seshadri v. G. Vasantha Pai [(1969) 1 SCC 27] rejecting
similar contention: (SCC p. 37)
"This (question) will depend on our reaching the conclusion
that but for the fact that voters were brought through this
corrupt practice to the polling booths, the result of the election
had been materially affected. In a single transferable vote, it is
135
very difficult to say how the voting would have gone, because
if all the votes which Seshadri had got, had gone to one of the
other candidates who got eliminated at the earlier counts,
those candidates would have won. We cannot order a re-count
because those voters were not free from complicity. It would
be speculating to decide how many of the voters were brought
to the polling booths in car. We think that we are not in a
position to declare Vasantha Pai as elected, because that
would be merely a guess or surmise as to the nature of the
voting which would have taken place if this corrupt practice
had not been perpetrated."
And, thereafter the Court held as under: (SCC pp. 555-56,
para 58)
"58. The position in the instant case is no better. It is
extremely difficult, if not impossible, to predicate what the
voting pattern would have been if the electors knew at the
time of election, that Shri John was not qualified to contest the
election. In any case, Shri Subrahmanyam was neither the
sole continuing candidate, nor had he secured the requisite
quota of votes. He cannot, therefore, be declared elected."
21. The Court also considered the dictum in the case
of Vishwanath [(1969) 2 SCR 90 : AIR 1969 SC 604 sub
nom Vishwanatha Reddy v. Konappa Rudrappa Nadgouda] and
observed that the ratio decidendi of the said case is applicable
only where (a) there are two contesting candidates and one of
them is disqualified; and (b) the election is on the basis of
single non-transferable vote.
22. Again in Lata Devi (Mali) v. Haru Rajwar [(1989) 4 SCC
773] this Court dealt with the same question and observed as
under: (SCC p. 780, para 16)
"It is to be noted that in an election petition what is called in
question is the election and what is claimed is that the election
of all or any of the returned candidates is void, with or without
a further declaration that the election petitioner himself or any
other candidate had been duly elected. Declaring the election
of the returned candidate void does not, by itself, entitle the
election petitioner or any other candidate to be declared
elected."
23. Learned counsel for the appellant lastly referred to the
decision in D.K. Sharma v. Ram Sharan Yadav [1993 Supp (2)
SCC 117] . In that case, the High Court referred to the
decision in Konappa Rudrappa Nadgouda [(1969) 2 SCR 90 :
AIR 1969 SC 604 sub nom Vishwanatha Reddy v. Konappa
136
Rudrappa Nadgouda] and held that on the basis of the oral
evidence, it was not possible to hold that the voters who cast
their votes in favour of the elected candidate did so after
having noticed about the disqualification and knowing that
their votes would be wasted and therefore, the second prayer
of the election petitioner to declare him as duly elected after
throwing away the votes of the elected candidate, was not
allowed. This Court did not find any infirmity in the said
reasoning and, therefore, dismissed the appeal.
24. In view of the aforesaid settled legal position, in our view,
the impugned order passed by the High Court declaring the
election petitioner as elected on the ground that the votes cast
in favour of the elected candidate (appellant) are thrown away
was totally erroneous and cannot be justified. As held by the
Constitution Bench in Konappa case [(1969) 2 SCR 90 : AIR
1969 SC 604 sub nom Vishwanatha Reddy v. Konappa
Rudrappa Nadgouda] that some general rule of election law
prevailing in the United Kingdom that the votes cast in favour
of a person who is found disqualified for election may be
regarded as "thrown away" only if the voters had noticed
before the poll the disqualification of the candidate, has no
application in our country and has only merit of antiquity. We
would observe that the question of sending such notice to all
voters appears to us alien to the Act and the Rules. But that
question is not required to be dealt with in this matter. As
stated earlier, in the present case, for one seat, there were
five candidates and it would be impossible to predict or guess
in whose favour the voters would have voted if they were
aware that the elected candidate was disqualified to contest
election or if he was not permitted to contest the election by
rejecting his nomination paper on the ground of
disqualification to contest the election and what would have
been the voting pattern. Therefore, order passed by the High
Court declaring the election petitioner Dr Vijay Kumar Khandre
as elected requires to be set aside."
10.8 He also relies upon the judgment of the Hon'ble Apex
Court in the case of MUNIRAJU GOWDA P.M Vs.
MUNIRATHNA AND OTHERS reported in (2020) 10 SCC
192, at paragraph Nos.13 to 22 of its judgment has held as
under:
137
13. But there is something that stares at the face. It
appears that when the results were announced, the
petitioner was declared to have secured 82,572 votes,
while the first Respondent was declared to have secured
1,08,064 votes. Therefore, in terms of Section 101 of
the Representation of the People Act, 1951 (for short
"the Act") the election petitioner should satisfy:
(i) that he received a majority of the valid votes; or
(ii) that but for the votes obtained by the returned
candidate by corrupt practices, he would have obtained
a majority of the valid votes.
14. As observed by the High Court, pleadings necessary
for the High Court to form an opinion in terms of clause
(a) or clause (b) of Section 101 of the Act were not
there in the election petition. Under Section 83(1)(a) of
the Act, an election petition should contain a concise
statement of material facts. What constitutes "material
facts" would depend upon the ground on which the
election of a returned candidate is challenged. Several
grounds are enumerated in Section 100(1) of the Act
and pleading of material facts co-relatable to the
grounds set out in Section 100(1), forms the bedrock of
an election petition.
15. In the election petition, as it was originally filed,
there was no averment of material facts traceable to the
ingredients incorporated in clauses (a) and (b) of
Section 101. This is why the first Respondent herein
made the first strike by moving an application in IA No.
4 of 2019 for striking out Prayer (c). Actually, IA No. 4
of 2019 was filed by the first Respondent herein on 11-
10-2019, pointing out that there are no necessary
pleadings with reference to Section 101.
16. It is only after two months of the first Respondent
filing IA No. 4 of 2019 that the petitioner herein moved
an application in IA No. 1 of 2020 for amendment of the
pleadings by incorporating one paragraph, after the
existing Para 30 of the election petition. To be precise IA
No. 1 of 2020 was filed on 11-2-2020 seeking to
incorporate one paragraph as Para 30(a) in the original
election petition. This proposed additional paragraph
comprised of two parts, one relating to the alleged
corrupt practices and the other relating to the
requirements of Section 101(b) of the Act. By the order
impugned [Muniraju Gowda v. Munirathna, 2020 SCC
138
OnLine Kar 1633] herein, the High Court allowed the
amendment to the extent of first part of Para 30(a), but
rejected the amendment as regards the second part
which relates to the ingredients of Section 101(b). As
rightly pointed out by the High Court, the election
petitioner cannot be allowed to suddenly wake up to the
reality of lack of pleading of material facts, relating to
his rights in terms of Section 101 after more than 18
months of the filing of the election petition. The same is
also barred by limitation. Therefore, the High Court did
the right thing in disallowing the second part of the
proposed Para 30(a) and in striking off Prayer (c).
17. In any case, the second part of Para 30(a) sought to
be incorporated by way of amendment, does not satisfy
the requirement of pleading of material facts, necessary
for the High Court to form an opinion in terms of clause
(a) or (b) of Section 101.
18. Once it is found that neither the original election
petition nor the amended election petition contains any
pleading of material facts which would enable the High
Court to form an opinion in terms of Section 101, there
was no alternative for the High Court but to strike off
Prayer (c).
19. There is one more reason why the petitioner cannot
succeed. In the elections in question, there were 14
candidates in the fray, including the petitioner herein
and the first Respondent. In Vishwanatha Reddy v.
Konappa Rudrappa Nadgouda [Vishwanatha Reddy v.
Konappa Rudrappa Nadgouda, AIR 1969 SC 604] , the
Constitution Bench of this Court treated the votes polled
in favour of the returned candidate as thrown away
votes, on the ground that he was disqualified from
contesting and that the election petitioner was entitled
to be declared elected, in view of the fact that there was
no other contesting candidate. But the Constitution
Bench cautioned that the rule for the exclusion of the
votes secured by corrupt practices by the returned
candidate in the computation of the total votes and the
consequential declaration of the candidate who secured
the next highest number of votes as duly elected, can be
applied only when there are just two candidates at an
election.
20. The ratio in Vishwanatha Reddy [Vishwanatha Reddy
v. Konappa Rudrappa Nadgouda, AIR 1969 SC 604] was
followed in Thiru John v. Returning Officer [Thiru John v.
139
Returning Officer, (1977) 3 SCC 540] . Though this case
concerned election to the Rajya Sabha through single
transferable votes, this Court observed in this case that
it would be extremely difficult if not impossible, to
predicate what the voting pattern would have been, if
the electors knew at the time of election that one was
disqualified. The Court pointed out that the question as
to how many of the voters would have cast their votes in
favour of other continuing candidates and in what
preferential order, remained a question in the realm of
speculation and unpredictability.
21. In D.K. Sharma v. Ram Sharan Yadav [D.K. Sharma
v. Ram Sharan Yadav, 1993 Supp (2) SCC 117] , this
Court followed the dictum in Vishwanatha Reddy
[Vishwanatha Reddy v. Konappa Rudrappa Nadgouda,
AIR 1969 SC 604] to the effect that where there are
more than two candidates in the field, it is not possible
to apply the same ratio as could be applied when there
are only two candidates. This principle was also
reiterated in Prakash Khandre v. Vijay Kumar Khandre
[Prakash Khandre v. Vijay Kumar Khandre, (2002) 5
SCC 568] , where this Court pointed out : (Prakash
Khandre case [Prakash Khandre v. Vijay Kumar
Khandre, (2002) 5 SCC 568] , SCC pp. 579-80, para 24)
"24. ... in the present case, for one seat, there were five
candidates and it would be impossible to predict or
guess in whose favour the voters would have voted if
they were aware that the elected candidate was
disqualified to contest election or if he was not permitted
to contest the election by rejecting his nomination paper
on the ground of disqualification to contest the election
and what would have been the voting pattern."
22. Therefore, apart from the fact that in the election
petition, there were no pleadings of material facts co-
relatable to the ingredients of clause (a) or (b) of
Section 101 of the Act, to sustain Prayer (c), even
legally the High Court could not have granted Prayer (c)
in view of the fact that there were 14 candidates in the
fray.
10.9 Thus, relying upon the aforesaid line of precedents learned
Senior Counsel for the Respondent No.1 emphatically submitted
140
that in the absence of any pleading and proof, the relief of
declaring petitioner having been elected cannot be granted.
Conclusion:
10.10 The settled position of law consistently followed and
affirmed in all the aforesaid judgments by the Apex Court is
the law laid down in the case of Vishwanatha Reddy (supra)
where the declaration of candidates securing next highest valid
votes to be elected is permissible in the scenario when there
are only two candidates. Such course of action may not be
permissible in the absence of material pleading and proof of
disqualified candidate securing votes by corrupt practice and in
the case of there being more than two candidate for one seat.
10.11 The reliance placed on by the learned Senior counsel for
the petitioner, judgment of the Hon'ble Apex Court in the case
of Syeda Noor Fatima (supra) is of no avail inasmuch as in
very same judgment at paragraph No.22 the Hon'ble Apex
Court as held as under:
22. It is not to be lost sight of that MFA No. 201854/2022
was nothing more than a proxy petition filed by R 1 to aid R
2. The High Court ought to have dismissed MFA No.
201854/2022 in limine. In this view, apropos the instant case,
we do not propose to examine as to if and when the 'may'
141
from Vishwanatha Reddy (supra), could operate when the
returned candidate is declared disqualified in an election with
more than two candidates. Ex abundanti cautela, we
clarify that the present judgment shall not constitute
precedent. As a sequel thereto, the issue as to whether
or not the Trial Court's verdict ought to be disturbed on
this score, purely on the anvil of law, is expressly left
open.''
(emphasis supplied)
10.12 The other aspect of the matter which emerges from the
aforesaid judgments of the Hon'ble Apex Court is requirement
of specific pleadings in the election petition in support of the
relief sought under Section 101 of the R.P. Act, 1951. In the
instant case except paragraph No.84, nothing is whispered in
the entire Election Petition requiring consideration of the prayer
in this regard. Paragraph No.84 of the petition reads as under:
"84. It is submitted that the information not disclosed by
the Respondent No.1 detailed supra, though crucial and
material, was intentionally suppressed by Respondent No.1
in Form 26-Affidavit. If these facts were made known to
the voters/electors, would have definitely rejected the
candidature of the Respondent No.1. In this background, it
is submitted that due to suppression of aforesaid facts, the
election of the Respondent No.1 has been materially
affected. As such petitioner is entitled to be declared as
returned candidate under Section 101 of R.P. Act.''
10.13 Admittedly apart from petitioner and the Respondent
No.1 there are 13 other candidates who have contested the
election to 140-Bagepalli Assembly Constituency, who are
142
arrayed as Respondent Nos.2 to 14 herein. There is no specific
material averments as to how many votes more than 19,179
have been secured by the Respondent No.1 by corrupt practice.
Therefore, it is not possible to presume and form an opinion
that all those votes more than 19,179 allegedly obtained by
corrupt practice by respondent No.1 would have gone in favour
of the petitioner.
10.14 Thus, except the above cryptic averment in the election
petition, nothing is forthcoming enabling this Court to form the
opinion as required under Section 101 of R.P. Act, 1951 for
grant of relief of declaration to declare the petitioner to have
been the elected candidate of the 16th Karnataka Legislative
Assembly from 140-Bagepalli Assembly Constituency. Issue
No.4 raised is answered in the negative.
11. REGARDING ADDITIONAL ISSUE No.1:
11.1 One another contention raised by the petitioner as found
at para 83 of the petition is, Returning Officer to 140-Bagepalli
Constituency ought not to have accepted the nomination filed
by the Respondent No.1 on the allegation of non-disclosure and
false information in Form 26 Affidavit Sl.Nos. 4, 7 and 8.
143
11.2 In response, the Respondent No.1 has contended that the
Returning Officer has rightly accepted the nomination papers of
the Respondent No.1 after scrutiny and after ascertaining that
the Respondent No.1 has furnished all details as required under
law.
11.3 The primary ground on which the petitioner seeking
consideration of this contention of improper acceptance of
nomination filed by Respondent No. 1 by the Returning Officer
is that the non-disclosure and false information in Form 26
Affidavit by the Respondent No.1 has interfered with the free
exercise of electoral right and thereby Respondent No. 1 has
committed corrupt practice as contemplated under sub-Section
(2) of Section 123 of the R.P. Act, 1951.
11.4 It is necessary at this juncture to refer to Section 36 of
the R.P. Act, 1951 providing for scrutiny of nominations which
reads as under:
"36. Scrutiny of nominations.-(1) On the date fixed for the
scrutiny of nominations under section 30, the candidates, their
election agents, one proposer [***] of each candidate, and one
other person duly authorised in writing by each candidate, but
no other person, may attend at such time and place as the
returning officer may appoint; and the returning officer shall
give them all reasonable facilities for examining the nomination
144
papers of all candidates which have been delivered within the
time and in the manner laid down in section 33.
(2) The returning officer shall then examine the nomination
papers and shall decide all objections which may be made to
any nomination and may, either on such objection or on his
own motion, after such summary inquiry, if any, as he thinks
necessary, [reject] any nomination on any of the following
grounds:-
[(a) [that on the date fixed for the scrutiny of nominations the
candidate] either is not qualified or is disqualified for being
chosen to fill the seat under any of the following provisions that
may be applicable, namely:-Articles 84, 102, 173 and 191,
8[***].
[Part II of this Act and sections 4 and 14 of the Government of
Union Territories Act, 1963 (20 of 1963)] 10[***]; or
(b) that there has been a failure to comply with any of the
provisions of section 33 or section 34; or
(c) that the signature of the candidate or the proposer on the
nomination paper is not genuine.]
(3) Nothing contained in [clause (b) or clause (c)] of sub-
section (2) shall be deemed to authorise the [rejection] of the
nomination of any candidate on the ground of any irregularity
in respect of a nomination paper, if the candidate has been duly
nominated by means of another nomination paper in respect of
which no irregularity has been committed.
(4) The returning officer shall not reject any nomination paper
on the ground of any [***] defect which is not of a substantial
character.
(5) The returning officer shall hold the scrutiny on the date
appointed in this behalf under clause (b) of section 30 and shall
not allow any adjournment of the proceedings except when
such proceedings are interrupted or obstructed by riot or open
violence or by causes beyond his control:
Provided that in case [an objection is raised by the
returning officer or is made by any other person] the candidate
concerned may be allowed time to rebut it not later than the
next day but one following the date fixed for scrutiny, and the
returning officer shall record his decision on the date to which
the proceedings have been adjourned.
145
(6) The returning officer shall endorse on each nomination
paper his decision accepting or rejecting the same and, if the
nomination paper is rejected, shall record in writing a brief
statement of his reasons for such rejection.
[(7) For the purposes of this section, a certified copy of an
entry in the electoral roll for the time being in force of a
constituency shall be conclusive evidence of the fact that the
person referred to in that entry is an elector for that
constituency, unless it is proved that he is subject to a
disqualification mentioned in section 16 of the Representation
of the People Act, 1950 (43 of 1950).
(8) Immediately after all the nomination papers have been
scrutinised and decisions accepting or rejecting the same have
been recorded, the returning officer shall prepare a list of
validly nominated candidates, that is to say, candidates whose
nominations have been found valid, and affix it to his notice
board.]"
11.5 The Handbook for Returning Officer issued by the Election
Commission of India, wherein at paragraph 5.11 under the
heading Preliminary Examination of Nomination Papers' reads
as under;
5.11 PRELIMINARY EXAMINATION OF NOMINATION PAPERS
5.11.1 As each nomination paper is filed, Returning Officer
or the Specified Assistant Returning Officer, as the case
may be, is required by law to examine it then and there
from the technical standpoint as required under Section 33
(4) of the Act of 1951. But Returning Officer is not required
to hold any formal scrutiny of any nomination papers at this
stage. This preliminary examination is restricted to entries
relating to the name and electoral roll details relating to the
candidate and the proposer(s) as given in the nomination
paper (s) and those as entered in the electoral roll. The
following aspects may be examined at this stage:
1) If the candidate is an elector in Returning Officer's
constituency, he should compare the entries in the
nomination paper with the entries in the electoral roll
relating to the serial number and name of the candidate and
his proposer/s.
146
ii) If he comes from another constituency, Returning Officer
or the Specified Assistant Returning Officer should compare
the entries in the nomination paper with the entry relating
to the candidate's name in the electoral roll of the
constituency or the relevant part thereof or certified copy of
such entry filed by him. The candidate is required by law to
produce before Returning Officer or the Specified Assistant
Returning Officer such electoral roll or the relevant part
thereof or a certified copy of relevant entries thereof
[Section 33 (5)].
iii) Make sure that the electoral roll with which Returning
Officer or the Specified Assistant Returning Officer makes
such comparison is the one currently in force for the
constituency in either case.
iv) Check whether the affidavit in revised Form 26 is duly
filled up and attached along with the nomination paper. If
not attached, Returning Officer or the Specified Assistant
Returning Officer should bring it to his notice this
requirement through a notice by way of the check list.
v) Check whether all columns of the affidavit are filled up,
as incomplete affidavits are liable to be rejected leading to
rejection of nomination paper. In case any of the columns
are left blank by the candidate, Returning Officer or the
Specified Assistant Returning Officer will mention it in the
checklist and hand it over to the candidate against proper
receipt. In such cases the candidate will have opportunity to
file a fresh affidavit complete in all respects by the time
fixed for commencement of scrutiny.
11.6 Perusal of the aforesaid provisions of Section 36 of R.P.
Act, 1951 and of the Handbook though indicate scope for
candidates, their election agents, one proposer, one other
person duly authorized in writing to examine nomination papers
and raise objections, Returning Officer is required by law to
examine then and there from the technical standpoint as
required under Section 33(4) of the R.P. Act, 1951. However,
147
he is not required to hold any formal scrutiny of any nomination
papers at that stage. More particularly with regard to the
requirement of disclosure/non disclosure/false declaration
pertaining to informations as envisaged under affidavit provided
as per Rule 4A of the Conduct of Election Rules, 1961.
11.7 Clause 5 of the said paragraph further indicates that all
that the Returning Officer is required to examine is whether all
columns of the affidavits are filled up, as incomplete affidavits
are liable to be rejected leading to rejection of nomination
papers. This aspect of the matter has also been considered by
the Apex Court in the Ajmera Shyam's case. Wherein at
paragraphs 9.3.2 to 9.10.2 the Apex Court has held as under;
"9.3.2 Regarding the second ground related to corrupt
practice as mentioned under Section 100(1)(b) of the Act,
the questioned acts will clearly be those committed by the
candidate during the election process. This second ground
pertains specifically to the acts committed by the returned
candidate or on behalf of the returned candidate and is not
connected to the candidate's attributes or qualifications. It is
also a ground that already existed in the statute as enacted
by Parliament before the judicial intervention as mentioned
above.
Such acts are censured to ensure the integrity of the election
process, to prevent voters from being misled or unduly
influenced, and are essential for the proper conduct of
elections, and there can be no leniency when addressing the
issue of corrupt practices.
9.3.3 As regards the other grounds concerning improper
acceptance or rejection of nominations, or the non-
compliance with the provisions of the Constitution, or the
148
Act, or rules, or orders made under the Act, it is observed
that these issues are mainly technical and involve some
element of subjectivity, since no nomination paper can be
rejected for a defect that is not of a substantial character as
provided under Section 36 (4) of the Act.
9.4 In light of the foregoing legal position, it is clear that
disclosure concerning criminal antecedents is linked to the
existing provisions under Section 8 and 9 of the Act, which
specify that a candidate would be disqualified if convicted of
any offences listed under Section 8 or dismissed for
corruption or disloyalty under Section 9 of the Act.
9.5 However, regarding voidance of the election of the
returned candidates due to non-disclosure of assets, it is not
explicitly stated in the Act. It has become part of election law
through judicial intervention and it is to be mentioned as
part of the Form 26 Affidavit filed during the nomination
process, as discussed above.
9.6 At the same time, it has to be kept in mind that
considering the evolution of law concerning disclosure of
information relating to criminal antecedents and assets and
the "raison d'etre" for the same, these considerations cannot
be placed at the same pedestal. By its very nature, the
requirement to disclose criminal antecedents has to be
examined more scrupulously and dealt with more strictly as
the involvement of criminals is a bane in our electoral
system, which was the prime focus of judicial intervention
which is reflected in the insertion of Section 33A of the Act.
On the other hand, disclosure of information about assets
and educational qualification were attending requirements to
improve the quality of the electoral process and the elected
members for which no specific statutory provision has been
made in the Act, but forms part of the information required
to be mentioned in the Form 26 Affidavit in terms of Rule 4A.
9.7 Certainly, there was concern also about assets when it
was noticed that apart from criminal acts of the candidates,
money was being misused by the candidates to influence the
voters. Further, it was also observed that there is a tendency
of the elected members to misuse their official positions to
enrich themselves at the expense of public funds while in
office. It is for these reasons that it was felt that candidates
must disclose their assets when seeking re-election.
9.8 It may, however, be noted that there can be no
disqualification under the law based on a candidate's wealth
or financial status unlike in the case of candidates with
criminal antecedents, who will stand disqualified if convicted
of certain offences mentioned under Section 8 of the Act.
There is no restriction on contesting an election due to
having immense wealth or being impoverished in a
149
democracy. Ultimately, the people elect their representative
regardless of the candidate's financial condition, judging
instead primarily on whether the candidate can genuinely
represent their interest.
9.9 This aspect has been succinctly articulated by P.
Venkatarama Reddi, J in PUCL (supra) in paragraphs no. 119
and 120 of the judgment as quoted earlier, which in essence
conveys the idea that the purpose of disclosure of assets and
liabilities of the candidate is not to associate with the
prospect or eligibility of his candidature or his capacity to
spend money in the electoral process, but primarily to
evaluate at a subsequent point in time after the election,
whether there has been disproportionate increase in wealth
by misusing official position and by self-aggrandizement.
9.10 This issue relating to disclosure of information may be
viewed from another perspective.
There is a provision under the statute to probe the
nomination of a candidate before the election is held and
result is declared, i.e., during the scrutiny by the Returning
Officer, who can reject it at the nomination stage if there has
been a failure to disclose necessary information by the
candidate.
This exercise of examining the validity of nomination can
also be undertaken by the Court after the election is over in
an election petition and result is known to the voters, as in
the present case.
9.10.1 This post-election judicial scrutiny about any such
irregularity or deficiency in not disclosing necessary
information serves as a safeguard against arbitrary actions
by the Returning Officer or any injustice caused to a
candidate.
9.10.2 Nevertheless, there is a qualitative difference
between these two stages in examining the issue of non-
disclosure of information. At the time the Returning Officer
scrutinizes the nomination papers of the candidates, the
voters are yet to express their mind through the ballot box.
However, once the election is concluded and the voters have
delivered their verdict and the same has been made public, a
new dimension is introduced -- that is, the people's
mandate, which cannot be overlooked by the court when
examining the legality of the acceptance of the nomination."
11.8 The allegations of non-disclosure/false declaration etc., as
made in the present petition even as observed by the Apex
150
Court in the aforesaid paragraph of its judgment in Ajmera
Shyam's case cannot be termed as technical which even as per
the paragraph 5.11 of the Handbook, cannot be made amenable
for a formal scrutiny at the stage of filing nomination paper.
Even though the information furnished by a candidate would
amount to non-disclosure or false declaration, Returning Officer
may not have an opportunity of examining the authenticity of
allegations at the stage of accepting nomination as could be
done in an election petition after conducting a full-fledged trial.
This requires, concise statement as per Section 83 of the R.P.
Act, 1951, pleading and proof on corrupt practices beyond
reasonable doubt, it would be impossible to imagine such a
situation at the very stage of filing of the nomination.
Therefore, the contention urged by the petitioner of improper
acceptance of nomination under the fact situation of this matter
cannot be countenanced.
Additional issue is answered accordingly.
12. For the aforesaid analysis and reasons following:
ORDER
(i) Petition is partly allowed.
151
(ii) Election of Respondent No.1 to the 16th
Karnataka Legislative Assembly from 140-
Bagepalli Assembly Constituency is set aside.
(iii) Relief of Declaration sought by the petitioner to
declare him as duly elected to fill the seat of 16th
Karnataka Legislative Assembly from 140-
Bagepalli Assembly Constituency is rejected.
(iv) Registry shall communicate this order to the
Speaker of the State Legislature and shall also
forward certified copy to the Election
Commissioner as required under Section 103 of
the R.P. Act, 1951 read with Rule 19 of Election
Petitions Procedure Rules, Karnataka.
Assistance of Ms.Rao Shivani Dinesh and Ms.Sania Niyaz,
Research Assistants is appreciated and placed on record.
Sd/-
(M.G.S. KAMAL)
JUDGE
SBN/RU/RL
152
Witness Examined on Behalf of the Petitioner:
PW1 C. Muniraju
PW2 Lashmidevi. R.,
Documents marked on behalf of Petitioner:
Ex.P1 Certified copy of Form No.7A
Ex.P2 Certified copy of Form No.21C
Ex.P3 Certified copy of Form No.21E
Ex.P4 Certified copy of Form No.26
Ex.P5 Copy of the tax payer search results page
downloaded from GST portal/website pertaining to
Respondent No.1-PAN Number. Certificate under
Section 65B of Indian Evidence Act in support of
the above computer output downloaded from the
website.
Ex.P6 Copy of the tax payer search results page
downloaded from GST portal/website pertaining to
Respondent No.1-business through GST Numbers.
Ex.P7 Copy of the tax payer search results page
downloaded from GST portal/website pertaining to
wife of Respondent No.1-PAN Number.
Ex.P8 Copy of the tax payer search results page
downloaded from GST portal/website pertaining to
wife of Respondent No.1- business through GST
Numbers.
153
Ex.P9
Copy of Form No.26/affidavit belongs to one Sri.
H.D. Ranganath downloaded from official website
of Election Commission of India i.e.,
www.affidavit.eci.gov.in.
Ex.P10 Copy of Form No.26/affidavit belongs to one Sri.
Y.A. Narayanaswamy pertaining to MLC election
downloaded from official website of Election
Commission of India i.e.,
www.ceo.karnataka.gov.in.
Ex.P11 Copy of Form No.26/affidavit belongs to one Sri.
Y.A. Narayanaswamy pertaining to MLC election
downloaded from official website of Election
Commission of India i.e.,
www.affidavitarchive.eci.nic.in.
Ex.P12 RTC of Respondent No.1 pertaining to Sy.No.21,
Basabathanahalli of Hosakote Taluk.
Ex.P13
EC of Respondent No.1 pertaining to Sy.No.21,
Basabathanahalli of Hosakote Taluk downloaded
from official website i.e.,
www.kaveri.karnataka.gov.in.
Ex.P14 RTCs of Respondent No.1 pertaining to Sy.Nos.13,
16, 20, 19, 17, 18 and 15, Basabathanahalli of
Hosakote Taluk.
Ex.P15 RTC of Respondent No.1 pertaining to Sy.No.9/1 of
Chinnakayalapalli Village, Bagepalli Taluk.
Ex.P16
RTC of Respondent No.1 pertaining to Sy.No.164
of Kothakote Village, Bagepalli Taluk.
Ex.P17 Copy of conversion order pertaining to Sy.No.164
of Kothakote Village, Bagepalli Taluk downloaded
from official website i.e.,
www.landrecords.karnataka.gov.in.
Ex.P18 RTCs of Respondent No.1 pertaining to Sy.No.173,
174, 138/2, 158/2 and 157 of Kothakote Village,
Bagepalli Taluk.
154
Ex.P19
Copy of conversion orders pertaining to Sy.No.173,
174, 138/2, 158/2 and 157 of Kothakote Village,
Bagepalli Taluk downloaded from official website
i.e., www.landrecords.karnataka.gov.in
Ex.P20 RTCs of Respondent No.1 pertaining to Sy. Nos.12,
12/1 and 12/2 Basabathanahalli of Hosakote
Taluk.
Ex.P21 RTC of Respondent No.1 pertaining to
Sy.No.138/1, Kothakote Village, Bagepalli Taluk.
Ex.P22 Copy of conversion order pertaining to
Sy.No.138/1 of Kothakote Village, Bagepalli Taluk
downloaded from official website i.e.,
www.landrecords.karnataka.gov.in
Ex.P23 RTC of Respondent No.1 pertaining to Sy.No.32/2
of Basabathanahalli of Hosakote Taluk.
Ex.P24 Copy of the company master data belongs to
Bhagini Hospitalities Pvt. Ltd., downloaded from
MCA portal/website i.e., www.mca.gov.in
Ex.P25 Certified copies of FIR and Annexures pertaining to
the Crime No.101/2023 on the file of Bagepalli
Police Station.
Ex.P26
Copy of the property tax status in relation to
property described at Sl.No.7(B)(ii)(c) of Ex.P4
downloaded from BBMP website i.e.,
www.bbmptax.karnataka.gov.in
Ex.P27 Office copy of my letter addressed to BBMP dated
19.06.2023 in relation to property described at
Sl.No.7(B)(ii)(c) of Ex.P4Ex.P28 Copy of the property tax status in relation to
property described at Sl.No.7(B)(iii)(c) of Ex.P4
downloaded from BBMP website i.e.,
www.bbmptax.karnataka.gov.in.
155
Ex.P29 Copy of the property tax status in relation to
property described at Sl. No. 7 (B) (iii) (b) of Ex.
P4 downloaded from BBMP website i.e.,
www.bbmptax.karnataka.gov.in.
Ex.P30 Copy of the property tax status in relation to
property described at Sl. No. 7 (B) (iii) (d) of Ex.
P4 downloaded from BBMP website i.e.,
www.bbmptax.karnataka.gov.in.
Ex.P31 Copy of the property tax status in relation to
property described at Sl. No. 7 (B) (iii) (e) of Ex.
P4 downloaded from BBMP website i.e.,
www.bbmptax.karnataka.gov.in.
Ex.P32 Copy of the property tax status in relation to
property described at Sl. No. 7 (B) (iii) (f) of Ex.
P4 downloaded from BBMP website i.e.,
www.bbmptax.karnataka.gov.in.
Ex.P33 Office copy of my letter addressed to BBMP dated
19.06.2023 in relation to property described at Sl.
No. 7 (B) (iii) (a), (b), (d), (e) and (f) of Ex. P4.
Ex.P34 Reply issued by BBMP dated 21.06.2023.
Ex.P35 Affidavit of PW1
Ex.P36 Copy of GST payment status pertaining to RR Bar
and Restaurant
Ex.P37 Copy of GST payment status pertaining to Bhagini
Residency
Ex.P38 Copy of GST payment status pertaining to
Srinivasa Wines
Ex.P39 Copy of GST payment status pertaining to
Wholesale Liquors Business
Ex.P40 Copy of GST payment status pertaining to Bhagini
Palace
Ex.P41 Copy of GST payment status pertaining to Mayuri
Bar and Restaurant belonging to wife of
Respondent No.1
156
Ex.P42 Copy of status of payment of property tax
pertaining to the property described at
Sl.No.7(B)(ii)(c) of Form 26 Affidavit of the
Respondent No.1
Ex.P43 Copy of status of payment of property tax
pertaining to the property described at
Sl.No.7(B)(iii)(a) of Form 26 Affidavit of the
Respondent No.1
Ex.P44 Copy of status of payment of property tax
pertaining to the property described at
Sl.No.7(B)(iii)(b) of Form 26 Affidavit of the
Respondent No.1
Ex.P45 Copy of status of payment of property tax
pertaining to the property described at
Sl.No.7(B)(iii)(d) of Form 26 Affidavit of the
Respondent No.1
Ex.P46 Copy of status of payment of property tax
pertaining to the property described at
Sl.No.7(B)(iii)(e) of Form 26 Affidavit of the
Respondent No.1
Ex.P47 Copy of status of payment of property tax
pertaining to the property described at
Sl.No.7(B)(iii)(f) of Form 26 Affidavit of the
Respondent No.1
Ex.P48 Certificate under Section 65B of the Indian
Evidence Act, 1872 in respect of the documents
marked at Ex.P36 to P47
Exs.P49 to P60 Certified copy of the self assessment of the
property tax for the period from 2018-19 to 2023-
24 pertaining to Sy.No.28 of Battarahalli Grama,
K.R.Puram Hobli, Bengaluru and Certified copies of
tax paid receipts
157
Exs.P61 to P72 Certified copy of the self assessment of the
property tax for the period from 2018-19 to 2023-
24 pertaining to Sy.No.48/2 of Vignnanagar,
Kagadasapura Main Road, Bengaluru and Certified
copies of tax paid receipts
Exs.P73 to P84 Certified copy of the self assessment of the
property tax for the period from 2018-19 to 2023-
24 pertaining to Sy.No.89/2 of Outer Ring Road,
Munnekolalu, Marathahalli, Bengaluru and Certified
copies of tax paid receipts
Exs.P85 to P96 Certified copy of the self assessment of the
property tax for the period from 2018-19 to 2023-
24 pertaining to Sy.No.245, A Block,
Devarabisanahalli, Marathahalli, Bengaluru and
Certified copies of tax paid receipts
Exs.P97 to P108 Certified copy of the self assessment of the
property tax for the period from 2018-19 to 2023-
24 pertaining to Sy.No.43 of Vartur Main Road,
Munnekolalu, Bengaluru and Certified copies of tax
paid receipts
Exs.P109 to P120 Certified copy of the self assessment of the
property tax for the period from 2018-19 to 2023-
24 pertaining to property No.1 of Chowdeshwari
Layout, 5th Main Road, Marathahalli, Bengaluru
and Certified copies of tax paid receipts
Ex.P121 Certificate under Section 65B of Indian Evidence
Act
Witness Examined on Behalf of the Respondent No.1 :
RW1 S.N. Subbareddy
DOCUMENTS MARKED ON BEHALF OF RESPONDENT NO.1
R1 AICC press release dated 25.03.2023
158
R2 Sale Deed dated 09.03.2006
R3 Sale Deed dated 13.12.2004
R4 Sale Deed dated 19.03.1998
R5 Sale Deed dated 09.11.2011
R6 Sale Deed dated 09.11.2011
R7 Sale Deed dated 15.01.2009
R8 Final Report filed by Police Inspector
R9 Order sheet in Crime No.101/2023
R10 RTC -Sy.No.206/1
R11 RTC -Sy.No.380/2
R12 RTC -Sy.No.19/4
R13 Form No.26 downloaded from the website
R14 Certificate under Section 65B of Indian
Evidence Act
Sd/-
(M.G.S. KAMAL)
JUDGE
