Telangana High Court
Nandu Lal Agarwal vs Kunamneni Sambasiva Rao on 9 June, 2025
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
ELECTION PETITION No.3 OF 2024
ORDER:
Heard Mr. Ramesh Kuthumbaka, learned counsel for Election
Petitioner, Mr. G. Vidya Sagar, learned Senior Counsel representing Mr.
Sai Prasen Gundavaram, learned counsel for respondent No.1, Mr. K.
Durga Prasad, learned counsel representing Mr. Ramesh Katikineni,
learned counsel for respondent Nos.2 & 16, Mr. Ravi Chandra Sekhar,
learned counsel for respondent No.4. None appears for respondent
No.15.
2. The Election Petitioner filed the present Election Petition under
Section – 81 read with 100, 101 and 125A of the Representation of
Peoples Act, 1951 and Rule – 3 of the Rules to Regulate the trial of
Election Petitions under the Representation of Peoples Act, 1951,
seeking the following reliefs:
i. to declare the election of Respondent No.1 as Returned Candidate
for 117- Kothagudem Assembly Constituency, Telangana State as
null and void under Section – 100(1)(d)(iv) of Representation of
Peoples Act, 1951 as respondent No.1 failed to comply Form-26
Affidavit prescribed by Rule – 4A of the Conduct of Election Rules
1961.
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EP No.3 of 2024ii. to declare respondent No.2 as Returned Candidate for 117 –
Kothagudem Assembly Constituency, Bhadhradri – Kothagudem
District, Telangana State, under Section – 101 read with 98 (c) and
84 of R.P. Act, 1951 with effect from 04.12.2023.
iii. to impose imprisonment and penalty under Section – 125 A (iii) of
the RP Act, 1951 against respondent No.1 under Section – 99 of RP
Act, 1951 for his failure to furnish the required information,
concealing the material information and for giving false Form-26
affidavit dated 08.11.2023, which is prescribed by Rule – 4A of the
Conduct of Election Rules 1961.
iv. to communicate the decision of this Court in this matter to the
Election Commission of India and the Speaker of the Telangana
Legislative Assembly in terms of Section – 103 of the RP Act,1951.
v. to Grant costs of the petition.
3. The election petitioner has filed this election petition
contending as follows:
i) He is the resident of Kothagudem Town which comes under
117-Kothagudem Assembly Constituency. His Aadhar Card Number is
7175 6675 8671 and Voter ID Number is KYT 1505502.
ii) Vide Memo No.4004/Elecs.D/A1/2023-1, dated 09.10.2023
and Gazette Notification No.37, dated 03.11.2023 issued by the Election
Commission of India (for short ‘ECI’), the following schedule of
elections was declared to elect the Members to the Telangana State
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EP No.3 of 2024Legislative Assembly-2023 for total 119 Assembly Constituencies in
Single Phase including 117-Kothagudem Assembly Constituency.
a) Date to file the nominations : 03.11.2023 to 10.11.2023 b) Scrutiny of nomination papers : 13.11.2023 c) Polling Date : 30.11.2023 d) Counting and declaration of result : 03.12.2023
iii) Respondent No.1 contested in the said election as a candidate
set up by the Communist Party of India (CPI), while respondent No.2
contested as a candidate set up by the All India Forward Bloc Party’.
Apart from them, 28 other candidates also contested in the said election
for the Post of MLA to 117-Kothagudem Assembly Constituency
(hereinafter referred to as ‘Subject Constituency’).
iv) The petitioner cast his vote in the said election conducted on
03.12.2023 for the subject constituency. Results were declared and
respondent No.1 was declared as ‘Returned Candidate’ for the subject
constituency, and Gazette Notification No.44, dated 04.12.2023 was also
issued to that effect.
v) Respondent No.1 stood in the first place while respondent No.2
stood in the second place among others by securing the following votes:
Candidate Votes secured
Respondent No.1 80,336
Respondent No.2 53,789
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vi) As per Rule – 4A of the Conduct of Election Rules, 1961 (for
short ‘Rules, 1961’), contesting candidate must file Form-26 in the form
of an affidavit along with nomination papers before the Returning
Officer.
vii) Firstly, Form-26 affidavit dated 08.11.2023 submitted by
respondent No.1 was notarized by Mr. Mendu Rajamallu, B.A., B.L.,
Advocate of Kothagudem with Notary Registration No.820. The said
notary is not a competent person to practice as a Notary in terms of
Section – 9 of the Notaries Act, 1952 as he did not possess a valid
certificate of practice as on the date of Notary. In view of the same, the
affidavit of respondent No.1 does not amount to be a sworn affidavit and
thereby he has not complied with Rule – 4A of the Rules, 1961, to
contest the election. Thus, the declaration of respondent No.1 as
Returned Candidate is liable to be set aside.
viii) Secondly, respondent No.1 intentionally suppressed by not
disclosing the name of his wife in Form-26 affidavit which not only
amounts to an offence punishable under Section – 125A of the
Representation of Peoples Act, 1951 (for short ‘RP Act’), but also
amounts to non-compliance of Rule – 4A of the Rules, 1961.
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4. Respondent No.1 filed counter denying the averments made in
the election petition contending as follows:
i) The prayer sought by the election petitioner is in contravention
to the provisions of Sections – 81 and 84 of the RP Act.
ii) The certificate of practice of Mr. Mendu Rajamallu was
renewed by the competent authority vide proceedings No.C&IG (R&S)
Endt.No.NR/653/2024/KMM-9, dated 22.01.2024 for a period w.e.f.
07.07.2021 up to 06.07.2026. In view of the same, the result of the
election of respondent No.1 would not materially be affected, nor would
it attract non-compliance of Rules, 1961.
iii) The election petition was filed beyond the prescribed period
of limitation of 45 days from the date of election of the returned
candidate. The result of subject constituency was declared on
03.12.2023. The election petition ought to have been filed on or before
17.01.2024, whereas the present election petition was filed on
20.01.2024 with a delay of three (03) days. Since the RP Act being a
Special Enactment and the election petition being a statutory remedy,
there cannot be condonation of any delay.
iv) With regard to non-disclosure of name of wife of respondent
No.1 in Form-26 affidavit, Form-26 under Rule – 4(a) of the Rules, 1961
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does not prescribe the name of the spouse. In the absence of any column
seeking the name of spouse, the contention of election petitioner that
non-mentioning the name of wife of respondent No.1 would amount to
non-compliance of Rule – 4 (a) of the Rules, 1961 is untenable.
5. Respondent No.2 filed written statement admitting the legal
position and law as stated in the election petition. He further contended
that he also contested for the post of MLA to the subject constituency.
6. On perusal of pleadings and hearing on both sides, this Court
framed the following issues for trial:
i. Whether the petitioner being a voter is entitled to file an Election
Petition without filing the objections during the scrutiny of
nominations before the Returning Officer?
ii. Whether the election petition is filed within the limitation period?
iii. Whether the election petitioner has complied with the statutory
requirements under Representation of Peoples Act, 1951 for
maintaining the election petition?
iv. Whether the declaration of the Respondent No.1 as returned
candidate is valid without valid nomination / Form 26 affidavit?
v. Whether non mentioning of the name of the wife of Respondent
No.1 in his Form-26 Affidavit dated 08.11.2023 amounts to
suppression of material information or non-disclosure of the
material particulars in Form- 26 Affidavit submitted by the
Respondent No.1, before the Returning Officer?
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EP No.3 of 2024vi. Whether the nomination filed by the Respondent No.1 is
substantially defective in terms of the Section – 36 of R.P. Act,
1951?
vii. Whether the Returning Officer has conducted the scrutiny of
nominations in terms of the Section – 36 of the R.P. Act 1951?
viii. Whether there is any cause of action for the Election Petitioner to
file the present Election Petition?
ix. Whether the election of respondent No.1, from 117-Kothagudem
Assembly Constituency, is liable to be set aside as null and void?
x. Whether respondent No.2 is entitled to be declared as duly elected
Returned Candidate from 117-Kothagudem Assembly
Constituency, Telangana State, as he secured next highest votes in
the Election?
xi. Whether respondent No.1 is liable for punishment under Section –
125A (iii) read with 99 of R.P. Act 1951 for his failure to furnish
the required information, concealing the material information and
for giving false Form-26, affidavit dated 08.11.2023.
xii. To What relief?
7. Vide order dated 26.12.2024, this Court appointed Mr. K.
Sudharshan, retired District Judge as Commissioner to record the
evidence of parties.
8. Before the Commissioner, PWs.1 to 4 were examined and
Exs.P1 to 14 and Exs.X1 and X2 (a) to X5 (b) were marked on behalf of
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EP No.3 of 2024election petitioner, whereas RW.1 was examined on behalf of respondent
No.1 and Exs.R1 to R9 were marked. However, respondent No.2
reported no evidence.
9. Mr. Ramesh Kuthumbaka, learned counsel for Election
Petitioner, contended as follows:
i. Respondent No.1 – Returned Candidate did not disclose his wife’s
name in Form 26. Therefore, there is deliberate suppression of his
wife’s name by respondent No.1. The same is in violation of the
principle laid down by the Apex Court and this Court.
ii. Knowing information about the candidate is part and parcel of
Article – 19 (1) of the Constitution of India.
iii. Thus, respondent No.1 failed to disclose his wife’s name and,
therefore, it amounts to undue influence in terms of the provisions
of the RP Act.
iv. Despite raising an objection by respondent No.2 on 13.11.2023
with regard to the same, the Returning Officer did not consider the
said aspect.
v. The Returning Officer rejected the objections raised by respondent
No.2 with regard to non-disclosure of respondent No.1’s wife
name by respondent No.1. Therefore, the election is materially
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EP No.3 of 2024affected. The Returning Officer ought to have rejected the
nomination of respondent No.1.
vi. Disclosure of names of wife and dependants, if any, by any
candidate contesting in election is mandatory. In the present case,
respondent No.1 failed to disclose his wife’s name in the affidavit
filed in Form 26 filed by the Returned Candidate along with
nomination in terms of Rule – 4A of the Rules, 1961. Therefore,
the election of respondent No.1 is materially affected.
vii. Thus, the nomination filed by respondent No.1 is substantially
defective in terms of Section – 36 of the RP Act.
viii. The Returning Officer did not conduct scrutiny of nomination of
respondent No.1 in terms of Section – 36 of the RP Act.
ix. Mr. Mendu Rajamallu, Advocate, who notarized the affidavit of
respondent No.1 in Form 26 filed along with nomination, is not
competent to notarize the affidavit as on the said date i.e.,
08.11.2023. Therefore, the affidavit filed by respondent No.1 in
Form 26 along with the nomination does not amount to sworn
affidavit. Thus, there is violation of Rule – 4A of the Rules, 1961.
x. He has placed reliance on the principle laid down in the following
decisions:
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e) National Insurance Co.Ltd. v. Seema Malhotra 5
f) New India Assurance Co.Ltd. v. Mandar Madhav Tambe 6
g) Oriental Insurance Co.Ltd. v. Felix Correa 7
q) Mopuragundu Thippeswamy v. K. Eranna 17
1
. E.P. No.5 of 2019, decided on 09.11.2022 by Madhya Pradesh High Court
2
. (1976) 1 SCC 897
3
. AIR 2024 SC 2069
4
. WPC No.3621 of 2019, decided on 04.10.2019 by Chhattisgarh High Court at Bilaspur
5
. AIR 2001 SC 1197
6
. (1996) 2 SCC 328
7
. (2003) 10 SCC 289
8
. 2018 INSC 862
9
. AIR 2014 SC 344
10
. (1994) Suppl. (1) SCC 449
11
. E.P. No.31/2014, decided on 20.11.2017 by High Court of M.P. at Indore Bench
12
. AIR 1954 SC 520
13
. E.P. No.1 of 2019, decided on 23.09.2022 by High Court of Manipur at Imphal
14
. AIR 2015 SC 1921
15
. (2018) 4 SCC 699
16
. (2017) 2 SCC 487
17
. 2019 (2) ALD 504
11
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EP No.3 of 2024
t) Yumkham Erabot Singh v. Okram Henry Singh20
u) Vemireddy Pattabhirami Reddy v. Yendapalli Srinivasulu
Reddy 21
v) Abhiram Singh v. C.D. Commanchen (dead) by LRs.22
w) Central Board of Dawoodi Bohra Community v. State of
Maharashtra23
x) Commissioner of Income Tax v. Vatika Township Private
Limited 24
y) District Collector, Vellore District v. K. Govindaraj25
z) Interplay Between Arbitration Agreements under
Arbitration and Conciliation Act, 1996 and Stamp Act,
1899, IN RE 26
aa) Mannalal Jain v. State of Assam27
bb) Kumar Gorakhnath Shinde v. The State of Maharashtra 28
cc) Mary Pushpam v. Telvi Curusumary 29
dd) National Insurance Company Limited v. Pranay Sethi 30
ee) Pradip Chandra Parija v. Pramod Chandra Patnaik3118
. 2020 LawSuit (Manipur) 67
19
. AIR 2022 SC 4347
20
. 2021 LawSuit (Manipur) 43
21
. E.P. No.1 of 2017, decided on 14.07.2023 by A.P. High Court.
22
. (2017) 2 SCC 629
23
. (2005) 2 SCC 673
24
. (2015) 1 SCC 1
25
. (2016) 4 SCC 763
26
. (2024) 6 SCC 1
27
. AIR 1962 SC 386
28
. W.P. No.11434 of 2016, decided on 16.07.2024 by Bombay High Court
29
. 2024 INSC 8
30
. (2017) 16 SCC 680
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ff) State of Maharashtra v. Jagannath 32
gg) State through CBI v. Hemendhra Reddy 33
xi) With the aforesaid submissions, learned counsel for the
election petitioner sought to set aside the election of respondent No.1 for
the subject constituency and to declare respondent No.2, who secured
second highest votes in the subject election as returned candidate.
10. Whereas, Mr. G. Vidya Sagar, learned Senior Counsel
representing Mr. Sai Prasen Gundavaram, learned counsel for respondent
No.1, contended as follows:
i) As per the provisions of the RP Act, the Rules, 1961 and the
Handbook of the Election Commission of India, respondent
No.1 has to fill all the blanks. There is no need of
disclosing his wife’s name.
ii) Respondent No.1 has no dependants.
iii) Respondent No.1 has disclosed his wife's PAN Number,
details of assets and liabilities. There is no error in it.
iv) On consideration of the said aspects only, the Returning
Officer accepted the nomination of respondent No.1 –
31
. (2002) 1 SCC 1
32
. AIR 1989 SC 1133
33
. (2023) 7 SCR 134
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returned candidate. Even then, the election petitioner filed
the present election petition.
v) The Election Petitioner is not the Voter of subject
constituency and he has not filed any proof to substantiate
his contention that he is a voter of subject constituency and,
therefore, on the said ground itself, the present election
petition is liable to be dismissed.
vi) As per the contents of the election petition, the subject
election is not materially affected.
vii) The election petitioner failed to plead and prove that the
alleged non-disclosure of wife’s name by respondent No.1,
the subject election is materially affected.
viii) On consideration of the said aspects only, more particularly,
the procedure laid down in the Hand Book of the Election
Commission of India, the Returning Officer has returned the
objections submitted by respondent No.2.
ix) Mr. Mendu Rajamallu, Advocate, who notarized the
affidavit of respondent No.1 in Form 26 filed along with
nomination, submitted an application seeking renewal of his
notary certificate well within the time as per the Notaries
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Act, 1952 and the Rules made thereunder and the same was
pending before the competent authority. Thereafter, the
Commissioner and Inspector General of Registration and
Stamps (C & IGRS) has issued renewal certificate which is
came into force from the date of expiration of earlier notary
certificate. Therefore, there is no error in it.
x) Respondent No.1 being the returned candidate got 80336
votes, whereas respondent No.2 got 53789 votes and, thus,
respondent No.1 gained confidence of the people. Thus, the
subject election cannot be set aside on vague allegations.
xi) He placed reliance on the following decisions:
b) Padma Sundara Rao v. State of Tamil Nadu 35
d) Career Institute Educational Society v. Om Shree Thakurji
Educational Society 37
e) People’s Union for Civil Liberties (PUCL) v. Union of
India 38
g) Lok Prahari15
34
. (1987) 4 SCC 137
35
. (2002) 3 SCC 533
36
. (2002) 4 SCC 638
37
. (2023) 16 SCC 458
38
. (2003) 4 SC 399
39
. (2017) 10 SCC 1
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xii) With the aforesaid submissions, learned Senior Counsel
sought to dismiss the election petition.
11. Mr. K. Durga Prasad, learned counsel representing Mr.
Ramesh Katikineni, learned counsel for respondent Nos.2 & 16,
contended that respondent No.1 did not disclose his wife’s name and he
has kept columns blank in the affidavit filed in Form 26 along with
nomination of respondent No.1. Therefore, respondent No.2 has
submitted objections on 13.11.2023 to the Returning Officer with regard
to the same. Respondent No.2 also cited the provisions of the RP Act,
Rules, 1961 and the principle laid down by the Apex Court. The
Returning Officer did not consider the same. Thus, the election of
respondent No.1 has to be declared as void and respondent No.2 has to
be declared as returned candidate for the subject constituency.
Therefore, he sought to set aside the election of respondent No.1 and
declare respondent No.2 as returned candidate.
40
. (2003) 6 SCC 697
41
. (2005) 6 SCC 537
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12. As discussed above, both Mr. Ramesh Kuthumbaka, learned
counsel for Election Petitioner, Mr. G. Vidya Sagar, learned Senior
Counsel representing Mr. Sai Prasen Gundavaram, learned counsel for
respondent No.1, Mr. K. Durga Prasad, learned counsel representing Mr.
Ramesh Katikineni, learned counsel for respondent Nos.2 & 16, Mr.
Ravi Chandra Sekhar, learned counsel for respondent No.4, made their
submissions extensively by placing reliance on the aforesaid judgments.
Though respondent No.2 filed written statement did not choose to cross-
examine the witnesses of both side. Respondent No.4 neither filed
written statement nor cross-examined the witnesses on both sides.
13. ISSUE No.1: Whether the petitioner being a voter is entitled
to file an Election Petition without filing the objections during the
scrutiny of nominations before the Returning Officer?
i) It is the specific contention of the election petitioner that he is
the resident of Kothagudem and he is staying in the address mentioned in
the election petition. He has exercised his franchise in the elections held
to the subject constituency during the year 2023 and also earlier. He has
filed Ex.P11 – his voter identity card, which is also marked as Ex.P6.
During cross-examination, he has admitted the said facts.
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ii) According to Mr. G. Vidya Sagar, learned senior counsel
appearing on behalf of respondent No.1, the petitioner has filed Ex.P11 –
voter ID card dated 25.09.2013. He has not filed final voters list of
subject constituency for the year 2023. Voters list will be displayed
before election on calling objections etc. The election petitioner failed to
file the said voters list and also voter ID of the year 2023. Therefore, the
present election petition filed by the election petitioner has to be
dismissed on the said ground alone.
iii) In the light of the aforesaid discussion, it is relevant to note
that the election petitioner has filed the present election petition under
Sections – 81 read with 100, 101 and 125A of the RP Act and Rule – 3 of
the Rules to Regulate the Trial of Election Petitions under RP Act.
Section – 81 of the RP Act deals with ‘presentation of petitions, the same
is relevant and it is extracted as under:
“81. Presentation of petitions.–
(1) An election petition calling in question any
election may be presented on one or more of the
grounds specified in sub-section (1) of section 100
and section 101 to the High Court by any candidate at
such election or any elector within forty-five days
from, but not earlier than the date of election of the
returned candidate or if there are more than one
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EP No.3 of 2024returned candidate at the election and dates of their
election are different, the later of those two dates.
Explanation.–In this sub-section, “elector” means a
person who was entitled to vote at the election to
which the election petition relates, whether he has
voted at such election or not.
[***] Omitted by Act 47 of 1966
(3) Every election petition shall be accompanied by
as many copies thereof as there are respondents
mentioned in the petition and every such copy shall
be attested by the petitioner under his own signature
to be a true copy of the petition.”
iv) Section – 2 (e) of the RP Act defines ‘elector’, and the same is
extracted as under:
“2 (e) “elector” in relation to a constituency means a
person whose name is entered in the electoral roll of
that constituency for the time being in force and who
is not subject to any of the disqualifications
mentioned in section 16 of the Representation of the
People Act, 1950.”
v) Explanation to Section – 81 of the RP Act says that in this sub-
section, “elector” means a person who was entitled to vote at the election
to which the election petition relates, whether he has voted at such
election or not.
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vi) Thus, any elector can file election petition. In the present
case, the election petitioner is the voter of the subject constituency and in
proof of the same, he has filed voter I.D. Card – Ex.P11. Respondent
No.1 failed to disprove the same during cross-examination of PW.1, or
by producing any evidence. Therefore, the contention of respondent
No.1 that the election petitioner is not the voter of the subject
constituency and that the present election petition filed by him is not
maintainable is unsustainable. This issue is answered accordingly.
14. ISSUE No.2: Whether the election petition is filed within the
limitation period?
i) As stated above, Section – 81 of the RP Act deals with
‘presentation of petitions’, and it has to be filed within forty-five days
from, but not earlier than the date of election of the returned candidate or
if there are more than one returned candidate at the election and dates of
their election are different, the later of those two dates. In the light of the
same, it is relevant to note that in the present case, the elections were
held on 30.11.2023 and results were declared on 03.12.2023. The
election petitioner filed the present election petition on 20.01.2024.
Therefore, forty-five days period from 03.12.2023 is expired by
16.01.2024.
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ii) It is relevant to note that there was Pongal Vacation for the
Court from 17th January, 2024 to 19th January, 2024. 13th January and
14th January being Second Saturday and Sunday respectively, and 15th
and 16th January were declared as holidays on account of
Sankranti/Pongal and Kanumu respectively. Therefore, the election
petitioner filed the present election petition on the re-opening day i.e.,
20.01.2024. Thus, the election petitioner filed the present election
petition within limitation in terms of Section – 81 of the RP Act.
Therefore, the contention of learned Senior Counsel appearing on behalf
of respondent No.1 that the election petition is time barred is
unsustainable. This issue is answered accordingly.
15. ISSUE No.3: Whether the election petitioner has complied
with the statutory requirements under Representation of Peoples Act,
1951 for maintaining the election petition?
i) The election petitioner has filed the present election petition in
terms of the provisions of the RP Act, Rules to Regulate the Trial of
Election Petitions under RP Act. It is apt to note that though respondent
No.1 contended that the election petitioner has not complied with the
statutory requirements under the provisions of the RP Act, to maintain
the present election petition, he failed to make out any case to prove the
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same. Therefore, the said contention of respondent No.1 is also
unsustainable. This issue is answered accordingly.
16. ISSUE Nos.4 & 7: Whether the declaration of the Respondent
No.1 as returned candidate is valid without valid nomination / Form 26
affidavit? and Whether the Returning Officer has conducted the scrutiny
of nominations in terms of the Section – 36 of the R.P. Act 1951?
i) Section – 33 of the RP Act deals with ‘presentation of
nomination paper and requirements for a valid nomination. Section –
33A refers to ‘Right to information’ and 33B refers to candidate to
furnish information only under the Act and the Rules. They are relevant
and the same are extracted as under:
“33A. Right to information.–(1) A candidate shall,
apart from any information which he is required to
furnish, under this Act or the rules made thereunder,
in his nomination paper delivered under sub-section
(1) of section 33, also furnish the information as to
whether–
(i) he is accused of any offence punishable with
imprisonment for two years or more in a pending case
in which a charge has been framed by the court of
competent jurisdiction;
(ii) he has been convicted of an offence [other than any
offence referred to in sub-section (1) or sub-section
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EP No.3 of 2024(2), or covered in sub-section (3), of section 8 and
sentenced to imprisonment for one year or more.
(2) 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, also deliver to him an affidavit sworn by
the candidate in a prescribed form verifying the
information specified in sub-section (1).
(3) The returning officer shall, as soon as may be
after the furnishing of information to him under sub-
section (1), display the aforesaid information by
affixing a copy of the affidavit, delivered under sub-
section (2), at a conspicuous place at his office for the
information of the electors relating to a constituency
for which the nomination paper is delivered.”
“33B. Candidate to furnish information only
under the Act and the rules.–Notwithstanding
anything contained in any judgment, decree or order
of any court or any direction, order or any other
instruction issued by the Election Commission, no
candidate shall be liable to disclose or furnish any
such information, in respect of his election which is
not required to be disclosed or furnished under this
Act or the rules made thereunder.”
ii) In the present case, respondent No.1 has filed nomination
along with notarized affidavit in Form 26 (Ex.P5). The same was
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received and accepted by the Returning Officer. It is relevant to note
that during scrutiny, respondent No.2 has submitted objections (Ex.P9)
stating that respondent No.1 did not disclose his wife’s name in the
affidavit in Form 26 and, therefore, the nomination filed by respondent
No.1 is liable for rejection. In Ex.P10 – original order, the Returning
Officer stated that he cannot conduct a roving enquiry while conducting
scrutiny and he would only see as to whether the candidate filled all the
columns and the affidavit is attested properly or not. On consideration of
the said aspects only, the Returning Officer has accepted the nomination
of respondent No.1. The objections filed by respondent No.2 vide Ex.P9
were returned by the Returning Officer vide Ex.P10 order dated
13.11.2023.
iii) In the light of the above, it is relevant to note that Section – 36
of the RP Act deals with ‘scrutiny of nomination’. The same is relevant
and extracted hereunder:
“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
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EP No.3 of 2024facilities for examining the nomination 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,
Part II of this Act and sections 4 and 14 of the
Government of Union Territories Act, 1963 (20 of
1963)]; 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.
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EP No.3 of 2024
(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.
(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,
26
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EP No.3 of 2024candidates whose nominations have been found valid, and
affix it to his notice board.”
iv) As per the aforesaid provision, the Returning Officer cannot
conduct a roving enquiry and he cannot go into the genuineness and
correctness of the information furnished by the candidate while
conducting scrutiny. The said principle was also laid down by the Apex
Court in Resurgence India9, Kisan Shankar Kathore3 and Karikho
Kri v. Nuney Tayang 42.
v) In the light of the above discussion, on consideration of the
said aspects only, the Returning Officer accepted the nomination of
respondent No.1. There is no error in it. It is apt to note that the election
petitioner did not file any objections to the Returning Officer stating that
respondent No.1 failed to fill all the columns and failed to disclose his
wife’s name. It is respondent No.2, who has filed objections vide Ex.P9
on the said ground. The said aspect was considered by the Returning
Officer and rejected the objections submitted by respondent No.2 vide
Ex.P10. Therefore, the election petitioner cannot contend that the
nomination filed by respondent No.1 is not valid and that the Returning
42
. 2024 SCC OnLine SC 519
27
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EP No.3 of 2024Officer accepted the said invalid nomination. Issue Nos.4 and 7 are
accordingly answered.
17. ISSUE Nos.5, 6 & 8: Whether non mentioning of the name of
the wife of Respondent No.1 in his Form-26 Affidavit dated 08.11.2023
amounts to suppression of material information or non-disclosure of the
material particulars in Form – 26 Affidavit submitted by the Respondent
No.1, before the Returning Officer?; Whether the nomination filed by
the Respondent No.1 is substantially defective in terms of the Section –
36 of R.P. Act, 1951?; and Whether there is any cause of action for the
Election Petitioner to file the present Election Petition?
i) As discussed above, the election petitioner filed the present
election petition to declare the election of respondent No.1 – returned
candidate as invalid on the following two (02) grounds:
(a) Respondent No.1 did not disclose his wife’s name in Ex.P5
affidavit in Form 26 filed under Rule – 4A of the Rules, 1961; and
(b) Mr. Mendu Rajamallu, who notarized Ex.P5 affidavit, did not
possess a valid certificate as on the date of notary i.e., 08.11.2023.
Thus, according to the election petitioner, respondent No.1 did not file
Form 26 in accordance with the Rules, 1961.
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EP No.3 of 2024
ii) Ex.P5 is the affidavit filed by respondent No.1 in Form 26 in
terms of Rule – 4A of the Rules, 1961 along with nomination. Column at
Serial No.4 is with regard to details of permanent account and status of
filing of income tax return which are to be mentioned in a tabular form
and the same is as under:
(4) Details of Permanent Account-Number (PAN) and status of filing of Income Tax
return.
The financial year Total Income
for which the last shown in Income-
S.No. Names PAN Income-Tax returns Tax return (in
has been filed Rupees
1 Self DNLPK4073E 2023-24 Rs. 4,58,910/-
2022-23 Rs. 4,68,400/-
2021-22 Rs. 4,68,260/-
2020-21 Rs. 5,04,000/-
2019-20 Rs. 4,07,628/-
2 Spouse DNMPK4487B i) 2023-24 Rs. 9,25,640/-
ii) 2022-23 Rs.10,61,180/-
iii) 2021-22 Rs. 98,130/-
iv) 2020-21 Rs. 4,29,280/-
v) 2019-2020 Rs. 4,73,959/-
3 HUF (if candidate is No Pan allotted i) Not applicable i) Not applicable
Karta/Coparcener) ii) Not applicable ii) Not applicable
iii) Not applicable iii) Not applicable
iv) Not applicable iv) Not applicable
v) Not applicable v) Not applicable
4 Dependant-1 No Pan allotted i) Not applicable i) Not applicable
ii) Not applicable ii) Not applicable
iii) Not applicable iii) Not applicable
iv) Not applicable iv) Not applicable
v) Not applicable v) Not applicable
5 Dependant-2 No Pan allotted i) Not applicable i) Not applicable
ii) Not applicable ii) Not applicable
iii) Not applicable iii) Not applicable
iv) Not applicable iv) Not applicable
v) Not applicable v) Not applicable
6 Dependant-3 No Pan allotted i) Not applicable i) Not applicable
ii) Not applicable ii) Not applicable
iii) Not applicable iii) Not applicable
iv) Not applicable iv) Not applicable
v) Not applicable v) Not applicable
29
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EP No.3 of 2024
iii) In Ex.P5, respondent No.1 disclosed his PAN Number, Income
Tax Returns for five (05) years. He has also mentioned the PAN Number of
his wife, her income details. With regard to dependants, he has stated as
“Not Applicable”.
iv) It is also relevant to note that column at Serial No.(6A)
consists of ‘A’ Details of movable assets’ and ‘B’ Details of
Immovable Assets’. The same should be mentioned in tabular forms
containing columns i.e., ‘serial number’, ‘description’, ‘self’, ‘spouse’,
‘HUF’, ‘Dependant-1’, ‘Dependant-2’ and ‘Dependant-3’. With regard
to the movable properties, candidate has to disclose cash in hand,
deposits in bank accounts, investment in Bonds debentures/shares and
units in companies/mutual funds and others, investment in NSS, Postal
saving, Insurance Policies and in any Financial Instruments in Post
Office or Insurance Company, Personal loans/advance given to any
person or entity including firm, company, trust etc., and other
receivables from debtors, Motor vehicles/Aircrafts/Yachts/Ships,
Jewellery, bullion and valuable things and any other assets, such as value
of claims/interest etc. Therefore, the candidate has to disclose all the
details of movables and dues of himself, spouse, HUF and dependants
etc. He has to disclose income tax dues and other dues of himself,
30
KL,J
EP No.3 of 2024spouse, HUF and dependants. Column No.8 deals with ‘profession or
occupation’. It says self and spouse.
v) Serial No.10 refers to Part-B of the said affidavit relates to
‘abstract of the details given in (1) to (10) of Part-A, which is in tabular
form. In the said tabular form at serial No.7, the petitioner has to
disclose PAN Number of himself, his spouse and HUF and income tax
returns. Serial No.8 is with regard to the details of assets and liabilities
of the candidate, spouse, HUF and dependants. The same is relevant and
it is extracted as under:
PART-B
(10) ABSETRACT OF THE DETAILS GIVEN IN (1) TO (10) OF PART-1
1 Name of the Candidate KUNAMNENI SAMBASIVA RAO
2 Full Postal address No.3-2-172, Vidyanagar Colony, Chunchupalli
Village and mandal, Bhadradri Kothagudem
District
3 Number and name of the 117-Kothagudem Constituency,
constituency and State Telangana State
4 Name of the Political party which COMMUNIST PARTY OF INDIA
set up the candidate
5 Total number of pending criminal 4 (Four)
cases
6 Total number of cases in which Not Applicable
convicted
7 PAN of Year for Total income shown
which last
income Tax
return filed
a) Candidate DNLPK4073E 2023-24 Rs.4,58,910/-
b) Spouse DNMPK4487B 2023-24 Rs.9,25,640/-
c) HUF Not applicable Not Not applicable
applicable
Not applicable Not Not applicable
applicable
8 Details of Assets and Liabilities in Rupees
Description Self Spouse HUF Depen- Depen- Depen-
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EP No.3 of 2024
dant-I dant-II dant-III
1 2 3 4 5 6 7 8
A Movable Assets
47,70,236.07/- Rs.59,69,140/- Nil Nil Nil Nil
(total value
B Immovable Nil Nil
Rs.40,00,000/- Rs.86,00,000/- Nil Nil
Assets
I Purchase price of
self-acquired Rs.40,00,000/- Nil Nil Nil Nil Nil
immovable
property
II Development/con
struction cost of Nil Nil Nil Nil Nil Nil
immovable
property after
purchase (if
applicable)
III Approximate
current market
a) Rs.40,00,000/- Nil Nil Nil
price a) Rs.86,00,000/- Nil
b) No
b) No
a) Self-acquired
assets (total value
b) inherited
assets (Total
value)
9 Liabilities
I Government dues
Nil Nil Nil Nil Nil Nil
(Total)
II Loans from
Bank/Financial Nil Nil Nil Nil Nil Nil
Institutions and
others (Total)
10 Liabilities that
are under dispute
I Government dues
Nil Nil Nil Nil Nil Nil
(Total)
II Loans from Innova Crysta
Bank/Financial vehicle loan
Rs.4,32,246 due to Nil Nil Nil Nil Nil
Institutions and
Union Bank of
others (Total) India, KGM
11 Highest educational qualifications:
I have completed Bachelor of Arts, Andhra University in the year 1974-77
vi) It is also apt to note that after Column at Serial No.6A of the
affidavit at Note No.5, it is mentioned that ‘candidate is responsible for
supplying all information in compliance of the Hon’ble Supreme Court
Judgment in W.P. (C) No.536 of 2011.
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EP No.3 of 2024
vii) According to the election petitioner, all the candidates
including respondent No.1 – returned candidate shall necessarily fill the
details therein in all columns of the affidavit including his name, spouse
name and dependants. However, respondent No.1 has disclosed his
name at the relevant column of the affidavit, but he has not disclosed his
wife’s name anywhere in the entire Ex.P5 affidavit. Therefore, it is
nothing but non-disclosure and it amounts to ‘undue influence’ in terms
of the provisions of RP Act and, therefore, the election of respondent
No.1 shall be declared as void.
viii) Whereas, according to respondent No.1, he has filled all the
blanks and there is no need of disclosing his wife’s name. Disclosure of
PAN, income tax returns, assets and liabilities etc., of his wife is
mandatory. He has not kept any column blank. Therefore, it is proper
compliance.
ix) Mr. G. Vidya Sagar, learned Senior Counsel, would contend
that there is modification to the affidavit in Form 26 pursuant to the
judgments of the Apex Court. As per the modified form, the candidate
has to fill all the blanks and there is no need of mentioning his spouse
name and dependants’ name. Thus, respondent No.1 has filled all the
columns and mentioned all the details, like PAN, income tax returns,
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EP No.3 of 2024
assets and liabilities, antecedents and educational qualifications of the
candidate and his spouse. According to respondent No.1, he has no
dependants and, therefore, he has not mentioned. The election petitioner
is also not disputing that respondent No.1 has dependants. His two
children are not dependants on respondent No.1.
x) LEGAL POSITION:
a) The Constitution Bench of the Apex Court in Union of India
(UOI) v. Association for Democratic Reforms 43 and People’s Union
of Civil Liberties38 categorically held with regard to filing of affidavits
and giving detailed particulars in affidavit in Form 26. The said
direction is being given just to ensure that false declarations are not
being given by returned candidate, nor nomination forms are being
submitted making false declarations. The Apex Court also held that
right to know about the candidate standing for election has been brought
within the sweep of Article – 19 (1) (a). There can be no doubt that by
doing so, a new dimension has been given to the right embodied in
Article – 19 (1) (a) of the Constitution of India through a creative
approach dictated by the need to improve and refine the political process
of election. In carving out this right, the Court had not traversed a
43
. (2002) 5 SCC 294
34
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EP No.3 of 2024beaten track but took a fresh path. It must be noted that the right to
information evolved by the Apex Court in the said case is qualitatively
different from the right to get information about public affairs or the
right to receive information through press and electronic media, though
to a certain extent, there may be overlapping. The right to information of
a voter/citizen is sought to be enforced against an individual who intends
to become a public figure and the information relates to his personal
matters. A decision-making process of a voter would include his right to
know about public functionaries who are required to be elected by him.
Till a candidate gets elected and enters the House, it would not be
appropriate to refer to him as a public functionary. Therefore, the right
to know about a public act done by a public functionary is not the same
thing as the right to know about the antecedents of the candidate
contesting the election. Nevertheless, the conclusion reached by the
Court that the voter has such a right and that the right falls within the
realm of freedom of speech and expression guaranteed by Article – 19
(1) (a) can be justified on good and substantial grounds.
b) In People’s Union of Civil Liberties38, the Apex Court
referring to the provisions of the RP Act etc., laid down certain
conclusions, which are relevant and the same are extracted hereunder:
35
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EP No.3 of 2024“V. Conclusions
123. Finally, the summary of my conclusions:
(1) Securing information on the basic details
concerning the candidates contesting for elections to
Parliament or the State Legislature promotes freedom
of expression and therefore the right to information
forms an integral part of Article 19(1)(a). This right
to information is, however, qualitatively different
from the right to get information about public affairs
or the right to receive information through the press
and electronic media, though, to a certain extent,
there may be overlapping.
(2) The right to vote at the elections to the House of
the People or Legislative Assembly is a constitutional
right but not merely a statutory right; freedom of
voting as distinct from right to vote is a facet of the
fundamental right enshrined in Article 19(1)(a). The
casting of vote in favour of one or the other candidate
marks the accomplishment of freedom of expression
of the voter.
(3) The directives given by this Court in Union of
India v. Assn. for Democratic Reforms [Ed.: See full
text at 2003 Current Central Legislation, Pt. II, at p.
3] were intended to operate only till the law was
made by the legislature and in that sense “pro
tempore” in nature. Once legislation is made, the
Court has to make an independent assessment in
order to evaluate whether the items of information
36
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EP No.3 of 2024
statutorily ordained are reasonably adequate to secure
the right of information available to the voter/citizen.
In embarking on this exercise, the points of disclosure
indicated by this Court, even if they be tentative or ad
hoc in nature, should be given due weight and
substantial departure therefrom cannot be
countenanced.
(4) The Court has to take a holistic view and adopt a
balanced approach in examining the legislation
providing for right to information and laying down
the parameters of that right.
(5) Section 33-B inserted by the Representation of the
People (Third Amendment) Act, 2002 does not pass
the test of constitutionality, firstly, for the reason that
it imposes a blanket ban on dissemination of
information other than that spelt out in the enactment
irrespective of the need of the hour and the future
exigencies and expedients and secondly, for the
reason that the ban operates despite the fact that the
disclosure of information now provided for is
deficient and inadequate.
(6) The right to information provided for by
Parliament under Section 33-A in regard to the
pending criminal cases and past involvement in such
cases is reasonably adequate to safeguard the right to
information vested in the voter/citizen. However,
there is no good reason for excluding the pending
37
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EP No.3 of 2024
cases in which cognizance has been taken by the
Court from the ambit of disclosure.
(7) The provision made in Section 75-A regarding
declaration of assets and liabilities of the elected
candidates to the Speaker or the Chairman of the
House has failed to effectuate the right to information
and the freedom of expression of the voters/citizens.
Having accepted the need to insist on disclosure of
assets and liabilities of the elected candidate together
with those of the spouse or dependent children,
Parliament ought to have made a provision for
furnishing this information at the time of filing the
nomination. Failure to do so has resulted in the
violation of guarantee under Article 19(1)(a).
(8) The failure to provide for disclosure of
educational qualification does not, in practical terms,
infringe the freedom of expression.
(9) The Election Commission has to issue revised
instructions to ensure implementation of Section 33-
A subject to what is laid down in this judgment
regarding the cases in which cognizance has been
taken. The Election Commission’s orders related to
disclosure of assets and liabilities will still hold good
and continue to be operative. However, Direction 4 of
para 14 insofar as verification of assets and liabilities
by means of summary enquiry and rejection of
nomination paper on the ground of furnishing wrong
38
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EP No.3 of 2024
information or suppressing material information
should not be enforced.”
42
c) The Apex Court in Karikho Kri placing reliance on the said
judgments further held that the direction given by the Apex Court to file
affidavits by giving detailed particulars in Form 26 does not mean that if
the complete information is being given in the affidavit annexing an
Annexure to it, the same cannot be said to be the non-compliance. The
allegation against Sri Karikho Kri, a returned candidate was that he has
suppressed the fact of owning three (03) vehicles and non-submission of
no due certificate in the context of electricity and water charges in
respect of Government accommodation occupied by him, the Apex
Court held the contention of the election petitioner that such non-
disclosure is a defect of substantial character cannot be accepted since in
that circumstance it is not a case of improperly accepted nomination, it
certainly has not materially affected the result of the election as
contemplated in Section – 100 (1) (d) (i) (iv) of the RP Act. Even if the
object with which the Apex Court in Association for Democratic
Reforms43 has required the disclosure of assets is kept in view, the facts
involved therein would indicate that the allegation therein cannot be
taken as non-disclosure though it could have been open for the appellant
39
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EP No.3 of 2024
therein to indicate such aspect in the affidavit, but in any event, it is not a
substantial defect so as to materially affect the result of the election in
the facts and circumstances of the said case.
d) In Association for Democratic Reforms43 and Lok Prahari15,
the Apex Court held that for effective exercise of his fundamental right
under Article – 19 (1) (a), the voter is entitled to have all the relevant
information about candidates at an election which would include
criminal antecedents, if any, of the candidate, his/her spouse and
dependants assets and liabilities, their educational qualifications etc.
e) Thus, the voter has the right to know about the candidate
standing for election has been brought within the ambit of Article – 19
(1) (a) of the Constitution of India. The right to information of the voter
is sought to be enforced against an individual who intends to become a
public figure and the information relates to his personal matters
including the details of spouse and dependants.
f) As discussed above, in Karikho Kri42, a returned candidate,
suppressed about owning of three (03) vehicles and that he has not
furnished no due certificate in the context of electricity and water
charges since he has occupied Government accommodation in MLA
Cottage No.1. Considering the same, the Apex Court held that such non-
40
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EP No.3 of 2024
disclosure cannot, by any stretch of imagination, be treated as an attempt
on his part to unduly influence the voters, thereby inviting the wrath of
Section – 123(2) of the RP Act. The said Karikho Kri had declared the
value of the movable assets of his dependent family members and
himself as Rs.8,41,87,815/-. The value of the three vehicles in question,
by comparison, would be a mere miniscule of this figure. In any event,
suppression of the value of these three vehicles would have no impact on
the declaration of wealth by Karikho Kri and such non-disclosure could
not be said to amount to ‘undue influence’.
g) In Resurgence India9, a 3-Judge Bench of the Apex Court
observed that if the Election Commission accepts nomination papers in
spite of blank particulars therein, it would directly violate the
fundamental right of the citizen to know the criminal antecedents, assets,
liabilities and educational qualifications of the candidate. It was
observed that accepting an affidavit with such blanks would rescind the
verdict in Association for Democratic Reforms43. An affidavit with
blank particulars would render the affidavit nugatory.
h) In Kisan Shankar Kathore3, the Apex Court considered the
issue of non-disclosure of certain government dues in the nomination
and whether it amounts to a material lapse impacting the election of the
41
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EP No.3 of 2024
returned candidate. The Apex Court held that non-disclosure of
electricity and municipal dues was not a serious lapse as there was a
dispute raised in the context thereof. The Apex Court clarified that it
would depend upon the facts and circumstances of each case as to
whether such non-disclosure would amount to a material lapse or not.
Material lapses by the returned candidate, inasmuch as he had failed to
disclose the bungalow standing in the name of his wife and also a vehicle
owned by her. He had also failed to disclose his interest/share in a
partnership firm which amounted to a very serious and major lapse.
i) Paragraph No.43 of the said judgment is relevant and the same
is extracted as under:
“43. When the information is given by a candidate in
the affidavit filed along with the nomination paper
and objections are raised thereto questioning the
correctness of the information or alleging that there is
non-disclosure of certain important information, it
may not be possible for the Returning Officer at that
time to conduct a detailed examination. Summary
enquiry may not suffice. The present case is itself an
example which loudly demonstrates this. At the same
time, it would not be possible for the Returning
Officer to reject the nomination for want of
verification about the allegations made by the
objector. In such a case, when ultimately it is proved
42
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EP No.3 of 2024that it was a case of non-disclosure and either the
affidavit was false or it did not contain complete
information leading to suppression, it can be held at
that stage that the nomination was improperly
accepted. Ms. Meenakshi Arora, learned Senior
Counsel appearing for the Election Commission,
rightly argued that such an enquiry can be only at a
later stage and the appropriate stage would be in an
election petition as in the instant case, when the
election is challenged. The grounds stated in Section
36 (2) are those which can be examined there and
then and on that basis the Returning Officer would be
in a position to reject the nomination. Likewise,
where the blanks are left in an affidavit, nomination
can be rejected there and then. In other cases where
detailed enquiry is needed, it would depend upon the
outcome thereof, in an election petition, as to whether
the nomination was properly accepted or it was a case
of improper acceptance. Once it is found that it was a
case of improper acceptance, as there was
misinformation or suppression of material
information, one can state that question of rejection in
such a case was only deferred to a later date. When
the Court gives such a finding, which would have
resulted in rejection, the effect would be same,
namely, such a candidate was not entitled to contest
and the election is void. Otherwise, it would be an
anomalous situation that even when criminal
proceedings under Section 125-A of the Act can be
43
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EP No.3 of 2024initiated and the selected candidate is criminally
prosecuted and convicted, but the result of his
election cannot be questioned. This cannot be
countenanced.”
j) In Lok Prahari15, the Apex Court held that non-disclosure of
assets and sources of income of candidates and their associates would
constitute a ‘corrupt practice’ falling under the heading ‘undue
influence’ as defined under Section – 123 (2) of the RP Act.
k) In Rukmini Medagowda19, a 3-Judge Bench of Apex Court
held that a false declaration with regard to the assets of a candidate,
his/her spouse or dependents, would constitute a corrupt practice
irrespective of its impact on the election of the candidate as it may be
presumed that a false declaration would impact the election.
l) In Mairembam Prithviraj16, the Apex Court had an occasion to
consider the difference between improper acceptance of the nomination
of a returned candidate as opposed to improper acceptance of the
nomination of any other candidate. It was held that a mere finding that
there has been an improper acceptance of a nomination would not be
sufficient for a declaration that the election is void under Section – 100
(1) (d) (i) of the RP Act and there has to be further pleading and proof
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EP No.3 of 2024
that the result of the election of the returned candidate was materially
affected, but there would be no necessity of any such proof in the event
of the nomination of the returned candidate being declared as having
been improperly accepted, especially in a case where there are only two
candidates in the fray.
m) In Kisan Shankar Kathore3, the Apex Court considered two
facets that are required consideration i.e., (i) whether there is substantial
compliance in disclosing requisite information in the affidavits filed
along with the nomination and (ii) whether non-disclosure of information
on identified aspects materially affected the result of the election. On
examination of the facts, the Apex Court held 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 observation was made in relation to non-disclosure of
municipal dues, where there was a genuine dispute as to revaluation and
re-assessment for the purpose of tax assessment.
n) In Sambhu Prasad Sharma v. Charandas Mahant44, the
Apex Court held that nomination paper is not considered sacrosanct and
what is to be seen is whether there is substantial compliance with the
44
. (2012) 11 SCC 390
45
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EP No.3 of 2024
requirement as to form and every departure from the prescribed format
cannot, therefore, be made a ground for the rejection of the nomination
paper.
o) On consideration of the aforesaid judgments, in Karikho Kri42
at paragraph No.44 the Apex Court held as follows:
“44. Though it has been strenuously contended
before us that the voter’s ‘right to know’ is absolute
and a candidate contesting the election must be
forthright about all his particulars, we are not inclined
to accept the blanket proposition that a candidate is
required to lay his life out threadbare for examination
by the electorate. His ‘right to privacy’ would still
survive as regards matters which are of no concern to
the voter or are irrelevant to his candidature for
public office. In that respect, non-disclosure of each
and every asset owned by a candidate would not
amount to a defect, much less, a defect of a
substantial character. It is not necessary that a
candidate declare every item of movable property that
he or his dependent family members owns, such as,
clothing, shoes, crockery, stationery and furniture,
etc., unless the same is of such value as to constitute a
sizeable asset in itself or reflect upon his candidature,
in terms of his lifestyle, and require to be disclosed.
Every case would have to turn on its own
peculiarities and there can be no hard and fast or
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EP No.3 of 2024straitjacketed rule as to when the non-disclosure of a
particular movable asset by a candidate would
amount to a defect of a substantial character. For
example, a candidate and his family who own several
high-priced watches, which would aggregate to a
huge figure in terms of monetary value, would
obviously have to disclose the same as they constitute
an asset of high value and also reflect upon his lavish
lifestyle. Suppression of the same would constitute
‘undue influence’ upon the voter as that relevant
information about the candidate is being kept away
from the voter. However, if a candidate and his
family members each own a simple watch, which is
not highly priced, suppression of the value of such
watches may not amount to a defect at all. Each case
would, therefore, have to be judged on its own facts.”
p) In Mangani Lal Mandal v. Bishnu Deo Bhandari 45, wherein
a returned candidate is alleged to be guilty of non-compliance with the
provisions of the Constitution or the RP Act or any Rules or Orders
made thereunder and his election sought to be declared as void on that
ground, the Apex Court held that it is essential for the election petitioner
to aver, by pleading material facts, that the result of the election insofar
as it concerned the returned candidate has been materially affected by
such breach or non-observance. It is only on the basis of such pleading
45
. (2012) 3 SCC 314
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and proof that the Court would be in a position to form an opinion and
record a finding that such breach or non-compliance has materially
affected the result of the election before election of the returned
candidate could be declared void. Mere non-compliance or breach of
the Constitution or the statutory provisions, as stated above, would not
result in invalidating the election of the returned candidate under Section
– 100 (1) (d) (iv) as the sine qua non for declaring the election of a
returned candidate to be void on that ground under Clause – (iv) of
Section – 100 (1) (d) is further proof of the fact that such breach or non-
observance has resulted in materially affecting the election of the
returned candidate. For the election petitioner to succeed on such
ground, viz., Section – 100 (1) (d) (iv), there is heavy onus to not only
plead and prove the breach but also show that the result of the election,
insofar as it concerned the returned candidate, has been materially
affected thereby.
xi) As discussed above, at the cost of repetition, in Karikho
Kri42, the allegation against the returned candidate is that he did not
disclose three (03) vehicles and no due certificate in the context of
electricity and water charges in respect of the Government
accommodation occupied by him, the Apex Court held that non-
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disclosure of the same will not affect the election materially and the said
non-disclosure is not of a substantial character in nature.
xii) In Ajmera Shyam v. Mrs. Kova Laxmi 46, the allegation
levelled against the returned candidate by the election petitioner is that
she has not submitted five (05) years Income Tax Returns in the relevant
column and, therefore, it amounts to ‘suppression of fact’. It also
amounts to ‘corrupt practice’. On examination of the facts therein and
also placing reliance on the principle laid down by the Apex Court in
Karikho Kri42, this Court held that the returned candidate has
mentioned all the details, disclosed her income tax returns, assets and
liabilities including movable and immovable etc., it is not suppression
and the subject election of returned candidate is not affected materially.
With the said findings, this Court dismissed the election petition.
However, it is brought to the notice of this Court that the election
petitioner has filed appeal vide Civil Appeal No.13015 of 2024 and the
same is reserved for judgment.
xiii) In the light of the aforesaid principle, coming to the facts of
the present case, as discussed above, the allegation against respondent
No.1 – returned candidate is that he did not disclose his wife’s name.
46
. E.P. No.10 of 2024, decided on 25.10.2024
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Therefore, it is suppression and it amounts to ‘undue influence’ and the
same is in violation of Article – 19 (1) (a) of the Constitution of India.
xiv) As discussed above, respondent No.1 has disclosed his wife’s
PAN, income tax returns for the last five (05) years, her assets and
liabilities. By mentioning the same, respondent No.1 – returned
candidate disclosed that he got married and he has a wife. Therefore,
the only question this Court has to consider is, as to whether non-
disclosure of respondent No.1’s wife name in Ex.P5 – affidavit will
affect the election materially and the said non-disclosure is substantial
character in nature.
xv) As discussed supra, respondent No.1 – returned candidate has
filled all the columns in Ex.P5 – affidavit and there are no blanks. On
consideration of the same only, Returning Officer has accepted his
nomination and he has rejected the objections submitted by respondent
No.2 vide Ex.P10.
xvi) As discussed above, respondent No.1 – returned candidate
has to mention the said facts including his name, PAN Number, Income
Tax details, educational qualifications, assets and liabilities of himself.
He has to disclose the said details of his wife’s name and his dependants
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in Ex.P5 affidavit as per the directives of the Apex Court in Association
for Democratic Reforms43. Non-mentioning/non-disclosure of
respondent No.1’s wife name is not a ground to declare his election as
void in terms of Section – 100 of the RP Act.
xvii) It is apt to note that respondent No.1 has to disclose all the
details of his marital status, antecedents, educational qualifications and
details of dependants. He has to disclose the said details of his spouse
and his dependants. The same are mandatory. Respondent No.1 has
disclosed the aforesaid details. He has not mentioned his wife’s name at
the spouse column in Ex.P5 affidavit. It is also not in dispute that voter
should know the details of candidate and it is part of Article – 19 (1) (a)
of the Constitution of India. Thus, respondent No.1 has disclosed that he
got married, he has spouse and he has disclosed her PAN, income details
and assets and liabilities. Therefore, this Court is of the considered view
that non-mentioning of his spouse name by respondent No.1 – returned
candidate will not affect the subject election materially and it is not
substantial in character.
xviii) As discussed above, the election petitioner failed to establish
that non-mentioning of his wife’s name by respondent No.1 – returned
candidate affected the election materially and it is substantial in nature.
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As discussed above, at the cost of repetition, respondent No.1 – returned
candidate has disclosed that he got married, he has mentioned his spouse
PAN, income tax details, assets and liabilities. Therefore, there is no
material suppression by respondent No.1 – returned candidate in Ex.P5
affidavit to set aside his election.
xix) There is no dispute that there should be purity of election at
every stage. Election process is sacrosanct. Free and fair election is the
sacrosanct thread that weaves our Country’s democratic structure. In the
election petition, the verdict and mandate of electorate in a democratic
party is a sacrosanct one and cannot be lightly set at naught, unless
grounds upon which the same is sought to be challenged and established
convincingly and clinchingly. In the light of the same, in the present
case, there is no non-disclosure/material suppression and there is no
defect in Ex.P5 affidavit filed by respondent No.1 – returned candidate.
xx) With regard to the details of notary, it is the specific
contention of respondent No.1 herein that Mr. Mendu Rajamallu, who
notarized Ex.P5 affidavit of respondent No.1 has appointed as notary
vide G.O.Ms.No.820, dated 07.07.2011. It is for a period of five (05)
years. He has renewed the same on 06.07.2016. The same is effective
till 05.07.2021. He has submitted application for renewal on 11.06.2021
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by paying fee of Rs.1000/- towards renewal fee and the same is pending
with competent authority. The said notary was expired on 06.07.2021
i.e., during pendency of his application dated 11.06.2021 seeking
renewal. The District Registrar, Khammam sent recommendations to the
Commissioner and Inspector General of Registration and Stamps for
renewal certificate of practice of Mr. Mendu Rajamallu on 12.01.2023.
Therefore, according to respondent No.1, there is no fault on the part of
Mr. Mendu Rajamallu and he has submitted the application on
11.06.2021 seeking renewal of notary and the same is pending with
competent authority.
xxi) In view of the same, it is relevant to note that Section – 5 of
the Notaries Act, 1952 deals with ‘entry of names in the Register and
issue or renewal of certificates of practice’. Section – 5 (2) envisages
that the Government appointing the notary, may, on receipt of an
application and the prescribed fee, renew the certificates of practice of
any notary for a period of five years at a time. In the said section, the
word ‘may’ was substituted in place of ‘shall’ vide Act 36 of 1999 w.e.f.
17.12.1999.
xxii) Rule – 8B of the Notaries Rules, 1952 deals with ‘renewal of
Certificate of Practice’ and the same is extracted hereunder:
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sub-rule (4) of rule 8 may be renewed for a further period of five years on
payment of prescribed fee. An application for renewal of Certificate of Practice
shall be submitted to the appropriate Government before six months from the date
of expiry of its period of validity:
Provided that the appropriate Government may, after considering the reasons
stated in the application, relax the condition of submission of application for
renewal of certificate of practice before the said period of six months:
Provided further that where an application for renewal of Certificate of Practice
is received within one year after the date of expiry of its period of validity, the
appropriate Government may, after considering the reasons stated in the
application, renew the Certificate of Practice with effect from the date of expiry of
its period of validity.”
xxiii) In the present case, Mr. Mendu Rajamallu has submitted the
application on 11.06.2021 by paying renewal fee of Rs.1,000/- on
10.06.2021. His certificate was expired on 06.07.2021. The competent
authority i.e., the District Registrar, Khammam, kept the said renewal
application pending. However, the District Registrar, Khammam has
sent recommendation on 12.01.2023 to the Commissioner and Inspector
General of Registration and Stamps for renewal of certificate of practice
of Mr. Mendu Rajamallu. Basing on the said recommendation , the
Commissioner and Inspector General of Registration and Stamps has
issued Ex.X1 proceedings, dated 22.01.2024 renewing the notary of Mr.
Mendu Rajamallu w.e.f. 07.07.2021 for a period of five (05) years.
Thus, respondent No.1 cannot be found fault with the same.
xxiv) As discussed above, the said Mendu Rajamallu has
submitted renewal application on 11.06.2021 before expiry of his
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certificate i.e., 06.07.2021. As per provision to Rule – 8B of the Notary
Rules, the appropriate Government has power to relax the condition of
submission of application for renewal of certificate of practice before the
said period of six (06) months. In the present case, Mr. Mendu
Rajamallu has submitted application seeking renewal on 11.06.2021.
The said fact was considered by the appropriate Government and
renewed his certificate vide Ex.X1 proceedings.
xxv) When the notary has applied for renewal in accordance with
the Rules before expiry of last certificate, he would be entitled for
renewal under Section – 5 (2) of the Notaries Act, 1952. The said
principle was also held by the Patna High Court in Sushil Kumar
Gupta v. State of Bihar47.
xxvi) There is no challenge to Ex.X1. It is relevant to note that
respondent No.1 – returned candidate has believed the version of the said
Mr. Mendu Rajamallu that he has already submitted application seeking
renewal of his certificate and the same is pending with the competent
authority. As on the date of notary of Ex.P5 affidavit i.e., 08.11.2023,
the application submitted by the said Notary is pending with the
competent authority and the District Registrar, Khammam, has already
47
. AIR 1995 Pat. 127
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submitted report on 12.11.2023 recommendation for renewal of notary
and the same was pending with the Commissioner and Inspector General
of Registration and Stamps, Hyderabad. Therefore, as on the date of
notary of Ex.P5 i.e., 08.11.2023, the District Registrar, Khammam has
already forwarded his recommendations for renewal of certificate of the
aforesaid Notary and the same was pending with the competent
authority. Thereafter he has issued Ex.X1 proceedings dated 22.01.2024
renewing notary of Mr. Rajamallu w.e.f. 07.07.2021. Thus, respondent
No.1 cannot expect to conduct an enquiry to ascertain validity of the said
certificate while obtaining notary on Ex.P5. Therefore, on the said
ground, it cannot be held that the election of respondent No.1 is
materially affected.
xxvii) As far as issue No.8 is concerned, in the election petition,
the election petitioner has specifically mentioned the cause of action
including dates etc. It is also apt to note that respondent No.1 has filed
an application under Order – VII, Rule – 11 of CPC to reject the election
petition on the ground that the election petitioner herein has not stated
cause of action in the election petition. The same was dismissed by this
Court. Challenging the said order, respondent No.1 has filed SLP before
the Apex Court and the same was also dismissed by the Apex Court.
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Thus, respondent No.1 cannot contend that there is no cause of action in
the election petition and, therefore, the said contention is unsustainable.
These issues are answered accordingly.
19. ISSUE No.9: Whether the election of respondent No.1, from
117-Kothagudem Assembly Constituency, is liable to be set aside as null
and void?
i) As discussed above, in view of the findings of this Court on
issue Nos.4 and 6, the election of respondent No.1 cannot be set aside by
declaring it as null and void. Hence, this issue is decided accordingly.
20. ISSUE No.10: Whether respondent No.2 is entitled to be
declared as duly elected Returned Candidate from 117-Kothagudem
Assembly Constituency, Telangana State, as he secured next highest
votes in the Election?
i) In view of the aforesaid findings on other issues that there is no
material suppression of fact by respondent No.1- returned candidate and
non-mentioning of his wife’s name in Ex.P5 affidavit is not material
suppression, it is not substantial in character. Therefore, on the said
ground, election of respondent No.1 – returned candidate cannot be set
aside by declaring it as void. Thus, this issue is held against the election
petitioner.
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21. ISSUE No.11: Whether respondent No.1 is liable for
punishment under Section – 125A (iii) read with 99 of R.P. Act 1951 for
his failure to furnish the required information, concealing the material
information and for giving false Form-26, affidavit dated 08.11.2023
i) As discussed above and in view of findings on issue Nos.1 to
10, there is no misrepresentation or concealment of any material
information by respondent No.1 – returned candidate in Ex.P5 Form 26
affidavit dated 08.11.2023. Thus, he is not liable for punishment.
ii) However, it is relevant to note that Section – 125A of the RP
Act deals with ‘penalty for filing false affidavit etc.’ and sub-Section (iii)
deals with ‘concealment of any information. As discussed above,
respondent No.1 – returned candidate did not conceal any information in
Ex.P5 Form 26. Therefore, he is not liable for any penalty. This issue
is answered accordingly.
22. As discussed above, the election petitioner has filed the
present election petition under Section – 81 read with 100, 101 and 125A
of RP Act. The election petitioner failed to establish that respondent
No.1 – returned candidate did not furnish information, concealed material
information and submitted Ex.P5 Form 26 affidavit dated 08.11.2023
falsely.
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23. Section – 100 of the RP Act deals with ‘grounds for declaring
election to be void and the same is extracted hereunder:
“100. Grounds for declaring election to be void.–
(1) Subject to the provisions of sub-section (2) if 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 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
(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
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election of the returned candidate to be void.
xxxxx
xxxxx”
24. In Santosh Yadav v. Narender Singh 48, the Apex Court held
that the success of a winning candidate at an election should not be
lightly interfered with. This is all the more so, when the election of a
successful candidate is sought to be set aside for no fault of his but of
someone else. The Apex Court also summed up the law and the grounds
as regards the result of the election petition having been materially
affected in case of improper acceptance of nomination. In Harsh
Kumar v. Bhagwan Sahai Rawat49, the Apex Court reiterated the said
principle.
25. In Jyoti Priya Mallick v. State of West Bengal 50, the
Division Bench of the Calcutta High Court also held that the election is
very sacrosanct in democracy and if the election process is being
polluted by persons who are entrusted to conduct the election
impartially, then the same will affect the sustenance of Indian
Democracy.
48
. (2002) 1 SCC 160
49
. (2003) 7 SCC 709
50
. (2001) SCC OnLine Cal. 144 (DB)
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26. In the light of the aforesaid principle, in the present case,
respondent No.1 – returned candidate got 80,336 votes, while respondent
No.2 got 53,789 votes. Thus, respondent No.1 – returned candidate
stood with a margin of 26,547 votes. Therefore, voters of the subject
constituency reposed confidence on respondent No.1. The said election
of respondent No.1 cannot lightly be interfered with unless there are
grounds to set aside his election in terms of Section – 100 of the RP Act.
There should be non-disclosure of material facts in the affidavit in Form
26 which should be substantial in nature. The object of filing of the said
affidavit in Form 26 by disclosing all the details including antecedents,
assets and liabilities of the candidate, spouse and dependents etc., is that
the voter should know such particulars of a contesting candidate before
taking a decision to vote in favour of a particular candidate. It became
part and parcel of Article – 19 (1) (a) of the Constitution of India. In the
present case, the allegation against respondent No.1 is that he has not
disclosed his wife’s name in Ex.P5 – affidavit. As stated above, he has
disclosed his wife’s PAN, income tax particulars for five (05) years and
assets and liabilities etc. Thus, he has disclosed that he got married and
his marital status. Therefore, non-disclosure of his wife’s name in Ex.P5
affidavit is not material suppression and is not substantial character in
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nature. On the said ground, this Court cannot set aside the election of
respondent No.1 – returned candidate by declaring the same as void.
27. As stated above, in Krishnamoorthy14, the Apex Court held
that non-disclosure of assets and source 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 RP Act. In
the present case, respondent No.1 – returned candidate has disclosed his
assets and liabilities, movable and immovable properties and also his
spouse. Therefore, it does not amount to undue influence as contended
by the Election Petitioner.
28. Section – 36 of the RP Act deals with ‘scrutiny of
nomination’. During the said scrutiny and while accepting nomination,
Returning Officer will only see as to whether the candidate filled all the
columns or not and he will ensure that there would not be any column
kept blank. During scrutiny, he cannot conduct roving enquiry. The said
principle was also laid down by the Apex Court in Resurgence India9,
Kisan Shankar Kathore3 and Karikho Kri42.
29. In this regard, it is relevant to note that in Vashist Narain
Sharma v. Dev Chandra 51, a 3-Judge Bench of the Apex Court held
51
. (1954) 2 SCC 32
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that the burden of proving that the improper acceptance of a nomination
has materially affected the result of an election would arise in one of
three ways: (i) where the candidate whose nomination was improperly
accepted had secured less votes than the difference between the returned
candidate and the candidate securing the next highest number of votes,
(ii) where the person referred to above secured more votes, or (iii) where
the person whose nomination has been improperly accepted is the
returned candidate himself. It was further held that in the first case the
result of the election would not be materially affected because if all the
wasted votes were added to the votes of the candidate securing the next
highest votes, it would make no difference to the result and the returned
candidate would retain the seat. However, in the other two cases, the
result may be materially affected and insofar as the third case is
concerned, it may be readily conceded that such would be the
conclusion.
30. In Hari Vishnu Kamath v. Syed Ahmad Ishaque 52, a 7-
Judge Bench considered the scope of enquiry under Section – 100 (1) (d)
of the RP Act. It was held that the said provision required before an
order setting aside an election could be made, that two conditions be
52
. (1954) 2 SCC 881
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satisfied. It must, firstly, be shown that there has been improper
reception or refusal of a vote or reception of any vote which is void, or
non-compliance with the provisions of the Constitution or the RP Act, or
any Rules or Orders made thereunder, relating to the election or any
mistake in the use of the prescribed form and it must further be shown
that, as a consequence thereof, the result of the election has been
materially affected. The Bench observed that the two conditions are
cumulative and must both be established. The burden of establishing
them is on the person who seeks to have the election set aside.
31. The said principle was followed by a 3-Judge Bench of the
Apex Court in Kamta Prasad Upadhyaya v. Sarjoo Prasad Tiwari 53.
32. In Arjun Panditrao Khotkar v. Kailash Kushanrao
Gorantyal 54, a 3-Judge Bench of the Apex Court has taken a similar
view as that of view taken in Vashist Narain Sharma51 held that where
a person whose nomination has been improperly accepted is the returned
candidate himself, it may be readily conceded that the conclusion has to
be that the result of the election was ‘materially affected’ without there
being any necessity to plead and prove the same.
53
. (1969) 3 SCC 622
54
. (2020) 7 SCC 1
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33. In Madiraju Venkata Ramana Raju v. Peddireddigari
Ramachandra Reddy 55, a 3-Judge Bench of the Apex Court reiterated
that if there are more than two candidates and if the nomination of one of
the defeated candidates has been improperly accepted, a question might
arise as to whether the result of the election of the returned candidate has
been materially affected by such improper reception but that would not
be so in the case of challenge to the election of the returned candidate
himself on the ground of improper acceptance of his nomination.
34. Considering the said principle, in Karikho Kri42 the Apex
Court held that if acceptance of the nomination of returned candidate is
shown to be improper, it would automatically mean that the same
materially affected the result of the election and nothing more needs to
be pleaded or proved.
35. In the light of the aforesaid principle, as discussed above, in
the present case, nomination of respondent No.1 – returned candidate
was accepted and there is no improper acceptance. As stated above, at
the time of receiving the nomination, Returning Officer will only verify
as to whether candidate filled all the columns or not. He cannot conduct
a roving enquiry at the stage of scrutiny of nomination in terms of
55
. (2018) 14 SCC 1
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Section – 36 of the RP Act. Moreover, in the present case, the election
petitioner did not raise any objection with regard to non-disclosure of his
wife’s name by respondent No.1. Therefore, this Court is of the
considered opinion that the contention of the election petitioner that the
nomination of respondent No.1 – returned candidate was accepted
improperly is untenable.
36. In Kanimozhi Karunanidhi v. A. Santhana Kumar 56, the
returned candidate has not disclosed the payment of income tax of her
spouse in the affidavit in Form 26 and, thus, she has intentionally
suppressed and not disclosed the same to the electors. Considering the
same, the Apex Court held that such non-disclosure is not substantial
character in nature and it will not render election of returned candidate as
invalid.
37. In Karim Uddin Barbhuiya v. Aminul Haque Laskar 57, the
Apex Court on examination of the facts of the said case where election
petitioner made only bald and vague allegations in the Election Petition
without stating the material facts in support thereof as required to be
stated under Section – 83 (1) (a) of the RP Act, and that none of the
allegations with regard to the false statements, suppression and
56
. 2023 SCC OnLine SC 573
57
. 2024 SCC OnLine SC 509
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misrepresentation of facts allegedly made by election petitioner with
regard to his educational qualification or with regard to his liability in
respect of the loan availed by him for his partnership firm or with regard
to his default in depositing the employer’s contribution to provident
fund, would fall within the definition of “corrupt practice” or “undue
influence” as envisaged in Section – 123 (2) of the RP Act. The election
petition also lacks concise statement of “material facts” as contemplated
in Section – 83 (a) of the RP Act. The election petitioner did not raise
any objection in writing against the nomination filed by the returned
candidate. Thus, the facts of the said case are different to the facts of the
present case.
38. In Lok Prahari15, there was non-disclosure of assets and
source of income of candidate and his associate, the Apex Court held
that it amounts to ‘corrupt practice’ and ‘undue influence’. Since it is an
attempt to suppress, effort to misguide and keep the voter in dark.
Whereas in the present case, there is no suppression of fact including
assets and liabilities of the respondent No.1 and her spouse. Therefore,
the facts of the said case are different to the facts of the present case.
39. In Rukmini Medagowda19, returned candidate, who
contested for the post of Mayor, Council of Mysore Municipal
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Corporation, failed to disclose his assets, and it amounts to undue
influence in terms of Section – 123 of the RP Act. But, in the present
case, there is no suppression of any fact including assets, both movable
and immovable and liabilities, antecedents, educational qualifications
etc., of respondent No.1 and his spouse.
40. It is also relevant to note that in Azhar Hussain v. Rajiv
Gandhi 58, the Apex Court observed that the sword of Damocles need not
be kept hanging over his head unnecessarily without point or purpose.
Litigation has to be end at the earliest and the concerned litigants are
relieved of the psychological burden of the litigation so as to be free to
follow their ordinary pursuits and discharge their duties. So long as the
sword of Damocles of the election petition remains hanging an elected
member of the Legislature would not feel sufficiently free to devote his
whole-hearted attention to matters of public importance which clamour
for his attention in his capacity as an elected representative of the
concerned constituency. The time and attention demanded by his elected
office will have to be diverted to matters pertaining to the contest of the
election petition. Instead of being engaged in a campaign to relieve the
distress of people in general and of the residents of his constituency who
58
. 1986 SCC (Supp.) 315
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voted him into office, and instead of resolving their problems, he would
be engaged in a campaign to establish that he has in fact been duly
elected. Instead of discharging his functions as the elected representative
of the people, he will be engaged in a struggle to establish that he is
indeed such a representative, notwithstanding the fact that he has in fact
won the verdict and confidence of the electorate at polls. He will not
only have to win the vote of the people and mandate but also win the
vote of the Court in a long drawn-out litigation before he can whole-
heartedly engage himself in discharging the trust reposed in him by the
electorate. Pendency of election petition would also act as a hindrance if
he were entrusted with some public office in his elected capacity. He
may even have occasions to deal with the representatives of foreign
powers who may wonder whether he will eventually succeed and
hesitate to deal with him. The fact that an election petition calling into
question his election is pending may, in a given case, act as a
psychological fetter and may not permit him to act with full freedom.
Even if he is made of stern metal, the constraint introduced by the
pendency of an election petition may have some impact on his sub-
conscious mind without his ever being or becoming aware of it. Under
the circumstances, there is greater reason why in a democratic set-up, in
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EP No.3 of 2024
regard to a matter pertaining to an elected representative of the people
which is likely to inhibit him in the discharge of his duties towards the
Nation, the controversy is set at rest at the earliest, if the facts of the case
and the law so warrant.
41. In Jagan Nath v. Jaswant Singh59, the Apex Court held that
it is a sound principle of natural justice that success of a candidate who
has won at an election should not be lightly interfered with and any
petition seeking such interference must strictly conform to the
requirements of the law. It is always to be borne in mind that though the
election of a successful candidate is not to be lightly interfered with, one
of the essentials of that law is also to safeguard the purity of the election
process and also to see that people do not get elected by flagrant
breaches of that law or by corrupt practices.
42. May be with the aforesaid intention, the Legislature was
conscious in mentioning the timelines to dispose of election petition
within six (06) months in Section – 86 (7) of the RP Act.
43. In view of the aforesaid discussion, the election petitioner
failed to make out any ground to set aside the election of respondent
59
. AIR 1954 SC 210
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EP No.3 of 2024
No.1 – returned candidate. Therefore, all these issues are decided against
the election petitioner.
44. ISSUE No.12: (To what relief?)
i) In view of the aforesaid discussion, the election petitioner failed
to make out any case to declare the election of respondent No.1 –
returned candidate as void. Thus, the election petition fails and the same
is liable to be dismissed.
ii) The present Election Petition is accordingly dismissed. In the
circumstances of the case, there shall be no order as to costs.
As a sequel thereto, miscellaneous petitions, if any, pending in this
Election Petition, stands closed.
_________________
K. LAKSHMAN, J
9th June, 2025
Mgr
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Election Petitioner:
PW.1: Mr. Nandu Lal Agarwal
PW.2: Mr. D. Madhu
PW.3: Mr. D. Pullaiah
PW.4: Mr. M. SanthoshFor Respondents:
RW.1: Mr. Kunamneni Sambasiva Rao
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EP No.3 of 2024DOCUMENTS MARKED ON BEHALF OF
ELECTION PETITIONER
Exhibit Date Description of document
Ex.P1 09.10.2023 Copy of Memo No.4004/Elecs.D/A1/2023-1
issued by the ECI
Ex.P2 03.11.2023 Gazette Notification No.37 issued by the ECI
Ex.P3 04.12.2023 Gazette Notification No.44 issued by the ECI
Ex.P4 — Form-20 showing details of votes obtained by the
candidates of subject constituency
Ex.P5 08.11.2023 Form-26, Affidavit filed by respondent No.1
Ex.P6 — Copy of Voter ID Card of the petitioner
Ex.P7 — Copy of the Aadhar of the petitioner
Ex.P8 28.12.2023 Copy of Letter No.RTI/NR/12530, 12531/23
issued by the PIO
Ex.P9 13.11.2023 Objection filed by respondent No.2 before the
Returning Officer
Ex.P10 13.11.2023 Original Order passed by the Returning OfficerEx.P11 25.09.2013 Voter Identity Card of PW.1
Ex.P12 — C.C. of Vakalathnama filed on behalf of RW.1
Before the Hon’ble Supreme CourtEx.P13 — C.C. of papers from 34 to 48 including affidavit
Signed by RW.1
Ex.P14 — Copy of papers from page Nos.99 to 110
Purported counter of R-1 filed as Annexure P/9
Before the Hon’ble Supreme Court in SLPRESPONDENT No.1
Exhibit Date Description of document
Ex.R1 07.03.2025 Original letter No.Notaries/720-1/2025 along with
Original verification issued by Dist. Registrar
to R-1, attested Photostat copy of proceedings
of the Commissioner & IGRS.
72 KL,J EP No.3 of 2024 Ex.R2 22.01.2024 Attested Photostat copy of renewal of certificate of practice of Notaries issued by the C&IGRS Ex.R3 22.01.2024 -do- Ex.R4 22.01.2024 Attested Photostat copy of proceedings issued by C&IGRS Ex.R5 -- Attested Photostat copy of Notary Registrar of
Mr. Mendu Rajamallu, Advocate for the year 2023
Ex.R6 — -do- for the year 2024
Ex.R7 — Attested Photostat copy of affidavit of R-2Ex.R8 08.04.2014 -do-
Ex.R9 14.11.2018 -do- X-SERIES: Exhibit Date Description of document Ex.X1 22.01.2024 Proceedings issued by the office of Commissioner
and Inspector General, Registration and Stamps
Department, Hyderabad, renewing the Notary of Mr.
Mendu Rajamallu, Advocate w.e.f. 07.07.2021 for a
further period of five years.
Ex.X2(a) — Photostat copy of Form-26 affidavit of R-1
Ex.X2(b) — Photostat copy of Form-26 affidavit of R-2
Ex.X3 13.11.2023 Photostat copy of objection filed by R-2
Ex.X4 13.11.2023 Photostat copy of order passed by the Returning
Officer
Ex.X5(a) — Photostat copy of declaration of election result
Ex.X5(b) — Photostat copy of final result sheet of votes polled
in the election_________________
K. LAKSHMAN, J
9th June, 2025
Mgr