Karnataka High Court
Sri Ashwathram vs Sri. Priyank Kharge on 25 June, 2025
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IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
ELECTION PETITION NO. 200002 OF 2023
BETWEEN:
SRI. ASHWATHRAM
S/O. TUKARAM RATHOD
R/AT: 1-9-103, WARD NO.7,
TUKARAM NAYAK TANDA
STATION, TANDA NEAR
SEVALAL TEMPLE CHITTAPUR,
KALABURAGI, KARNATAKA - 585 211. ... PETITIONER
(BY SMT: PRAMILA NESARGI, SR ADVOCATE FOR
SRI: G. DEVARAJE GOWDA &
SMT: G. PRIYANKA, ADVOCATES)
AND:
SRI. PRIYANK KHARGE
S/O. MALLIKARJUN KARGE
Digitally signed
by NANDINI B G R/AT: NO.9999
Location: High GUNDUGURTHI VILLAGE TALUK
Court of
Karnataka CHITTAPUR DISTRICT
KALABURAGI - 585 317.
... RESPONDENT
(BY SRI: K.N. PHANINDRA, SR ADVOCATE FOR
SRI: ASHWIN CHIKMATH ALONG WITH
SRIYUTHS: S M PARITOSH, ROHAN HOSMATH &
A.H. ABHISHEK GOWDA, ADVOCATES)
THIS ELECTION PETITION IS FILED UNDER SECTION 81 OF
THE REPRESENTATION OF PEOPLE ACT, 1951, PRAYING A) TO
DECLARE THAT THE DECLARATION OF RESULTS OF RESPONDENT
NO.1, ANNEXURE-C FOR THE ASSEMBLY CONSTITUENCY - 40 -
CHITTAPUR (SC) AS VOID; B) DECLARING THAT RESPONDENT NO.1
HAS COMMITTED CORRUPT PRACTICE UNDER SECTION 123(1),
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123(2), 123(4), 123(6) OF THE REPRESENTATION OF PEOPLE ACT,
1951 AND HE WAS NOT QUALIFIED TO BE CHOSEN TO FILL THE
SEAT OF 40 - CHITTAPUR (SC) ASSEMBLY CONSTITUENCY UNDER
SECTION 100 (1) (B), (1) (D) (IV) OF THE REPRESENTATION OF
PEOPLE ACT, 1951; C) TO DECLARE THAT THE RESULT OF THE
ELECTION OF RESPONDENT NO.1 HAS BEEN MATERIALLY AFFECTED
BY THE IMPROPER RECEPTION AND COUNTING VOTES IN FAVOUR
OF RESPONDENT NO.1 AS VOID UNDER SECTION 100 (1) (A) (D)
(IV) AND DISQUALIFY HIM FOR A PERIOD OF 6 YEARS FROM
CONTESTING IN ELECTIONS; D) TO DECLARE THE VOTES RECEIVED
AND COUNTED IN FAVOR OF RESPONDENT NO.1 AS IMPROPER
RECEPTION AND TREAT THEM AS VOID, WASTED AND THROWN
AWAY VOTES; E) TO MAKE AN ORDER REGARDING THE CORRUPT
PRACTICE COMMITTED BY PERSONS OTHER THAN RESPONDENT
NO.1 IN THE ELECTION HELD FOR 40-CHITTAPUR (SC) ASSEMBLY
CONSTITUENCY AND TO NAME THEM AND TAKE ACTION AS
CONTEMPLATED UNDER SECTION 99; F) PASS SUCH OTHER ORDERS
DEEMED NECESSARY UNDER SECTION 125(A) OF REPRESENTATION
OF PEOPLE ACT, 1951, AND; G) TO REWARD COSTS AND SUCH
OTHER CONSEQUENTIAL RELIEF/RELIEFS IN THE CIRCUMSTANCES
OF THE CASE.
THIS ELECTION PETITION HAVING BEEN HEARD AND
RESERVED ON 06.06.2025 AND COMING ON FOR PRONOUNCEMENT
OF ORDERS THIS DAY, THE COURT PASSED THE FOLLOWING:
CORAM: HON'BLE MRS JUSTICE M G UMA
CAV ORDER
The petitioner has filed this petition under Section 81 of
the Representation of the People Act, 1951 (hereinafter
referred to as 'the RP Act') against the respondent seeking the
following reliefs:
a) To declare that the declaration of
results of Respondent No.1, Annexure for the
Assembly Constituency- 40-Chittapur(SC) as
void;
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b) Declaring that Respondent No. I has
committed Corrupt practice U/s
123(1),123(2),123(4), 123(6) of the
Representation of People Act, 1951 and he was
not qualified to be chosen to fill the seat of 40-
Chittapur(SC) Assembly Constituency U/s
100(1)(b),(1)(d)(iv) of the representation of
People Act, 1951;
c) To declare that the result of the
election of the Respondent No.1 has been
materially affected by the improper reception
and counting votes in favor of the Respondent
no.1 as void under Section 100(1)(A)(d)(iv) and
disqualify him for a period of 6 years from
contesting in elections;
d) To declare the votes received and
counted in favor of the Respondent No.1 as
improper reception and treat them as void,
wasted and thrown away votes;
e) To make an order regarding the
corrupt practice committed by persons other
than the Respondent No.1 in the election held
for 40- Chittapur(SC) Assembly constituency
and to name them and take action as
contemplated under Section 99;
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f) Pass such other orders deemed
necessary under section 125(A) of
Representation of People Act, 1951; and
g) To reward costs and such other
consequential relief/ reliefs in the circumstances
of the case."
2. It is the contention of the petitioner that the
respondent being a successful candidate in the Karnataka
Legislative Assembly from 40-Chittapur(SC) constituency, in
the general election that was held on 10.05.2023, indulged in
corrupt practice as referred to under Section 123(6) of RP Act
by being part of the election manifesto and proclaiming to give
various guarantees, which is nothing but promising freebies to
win over the voters. It is also contended that the caste
certificate produced by the respondent while filing his
nomination as he belongs to Scheduled Caste was not in a
proper format. But the certificate of caste produced by him is
for the purpose of contesting Gram Panchayat election for the
period 2020-2021, which was made used for the General
Assembly election during 2024. Thereby, the respondent has
deceived the public by manipulating the facts, which attracts
Section 100(1)(2)(a) of RP Act.
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3. It is also the contention of the petitioner that the
respondent has misled the general public regarding his
educational qualification. During 2009 election, he declared that
he has studied upto PUC. In 2018, he stated that he has
studied PUC during 1996-98. But in the present election during
2024, he has stated that he has studied PUC in the year 1996.
But he has given a statement which was reported in the
Kannada Prabha daily newspaper that he has studied in law
school, which also amounts to corrupt practice as it is an
attempt to deceive the general public and to mislead them.
4. It is the further contention of the petitioner that the
respondent has adopted the tactics of threatening the
opponents by filing false and frivolous complaints. He filed one
such complaint with Chowk Police Station, Kalaburagi, which
was registered in Crime No.113 of 2023. He has also filed the
complaint against another person, which was registered in
Crime No.33 of 2023 of Sadashivanagara Police Station.
Registration of these criminal complaints was only with an
intention to cause fear in the mind of the general public and
also the opponents, which is in violation of Section 123(2) of RP
Act. It is the further contention of the petitioner that the
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respondent has not submitted his returns regarding
expenditure incurred for providing the guarantees under
manifesto, which attracts Section 123(6) of RP Act. Therefore,
the petitioner is seeking the reliefs as stated above.
5. Learned counsel for the respondent has filed IA
No.1 of 2023 seeking rejection of the petition.
6. Learned counsel for the petitioner has filed
objections to the said application.
7. Heard Smt Pramila Nesargi, learned senior advocate
for the petitioner and Sri K N Phanindra, learned senior
advocate for the respondent on IA No.1 of 2023. Perused the
materials on record.
8. Learned senior advocate for the respondent
supporting the application i.e., IA No. 1 of 2023 and opposing
the petition submitted that even though the petition runs into
more than 40 pages, it lacks material particulars. The petitioner
has not made out any cause of action for seeking the relief's
from this Court. Under such circumstances, the petition is liable
to be dismissed. Since the petition lacks the required
particulars and the facts to give rise to a cause of action to
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attract any of the provisions of RP Act, the petition is liable to
be dismissed in limine.
9. Learned senior advocate submitted that the caste
and income certificate submitted by the respondent, copy of
which is produced as per Annexure-A was issued by the
Tahsildar of Chittapur in Form-D as prescribed under law. As
per this certificate, the respondent belongs to Scheduled caste,
which was never disputed by the petitioner. It is not the
contention of the petitioner that the respondent does not
belong to Scheduled Caste or that he belongs to any other
category and was not qualified to contest from Chittapur
constituency which was reserved for SC. The only contention
raised by the petitioner is that, in the certificate, the Tahsildar
has mentioned that the certificate is meant for Gram Panchayat
election for the period 2020-2021. By that itself, the
respondent will not be liable for disqualification under any of
the provisions of law.
10. Learned senior advocate referred to Section 33(2)
of RP Act to contend that it is the requirement of law to submit
a declaration regarding the caste of the candidate and such
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requirement is complied by producing the caste certificate
issued by the Tahsildar of Chittapur and also by declaring it in
the nomination paper. Merely because the Tahsildar has
mentioned in the caste certificate that it is meant for Gram
Panchayat election for the period 2020-21, it will not in any
manner violate the requirement of law under RP Act. Learned
senior advocate submitted that Annexure-J1 is the copy of
nomination paper submitted by the respondent, wherein, he
has declared that he is the member of Mahar Caste, which is a
scheduled caste. It is in compliance of Section 33(2) of RP Act
and this fact is never denied by the petitioner. Under such
circumstances, this ground is not available for the petitioner to
succeed in the matter.
11. Learned senior advocate also contended that on
filing of the nomination by the respondent, during scrutiny by
the Returning Officer, no one have raised any objection about
the caste certificate or disputed his caste. It was never an issue
before the Returning Officer. It is also not the contention of the
petitioner that the respondent was ineligible to contest the seat
for any reason whatsoever. Learned senior advocate placed
reliance on the handbook for Returning Officer - Edition-2
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August-2022 published by Election Commission of India to
highlight about the grounds for rejection of nomination papers
by the Returning Officer. Only if it is the fact that the candidate
does not belong to Scheduled Caste and if he files a nomination
paper to contest a seat reserved for such caste, then only the
Returning Officer can reject the nomination paper. Learned
senior advocate also referred to the note appended to clause
6.10.1 (viii) to highlight that in order to prevent non SC/ST
persons contesting election from reserved constituencies, the
Returning Officer at the time of scrutiny of nominations should
satisfy himself that the candidates contesting from reserved
constituency belong to such caste or tribe as the case may be
and whenever there is doubt in the mind of the Returning
Officer, he can insist for production of caste certificate issued
by the competent authority. But when the Returning Officer is
satisfied by verifying the caste certificate of the candidate that
he belongs to Scheduled Caste and is contesting for the seat
reserved for such category and more so, when no such
objections were raised before the Returning Officer, the
petitioner cannot have any grievance for seeking
disqualification of the respondent on that ground.
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12. Learned senior advocate further submitted that no
format is prescribed to declare the caste of the candidate under
any of the statutes, particularly under RP Act. Section 33(2) of
RP Act only mandates a declaration to be filed by the
candidate. Such declaration in compliance of the requirement
under Section 33(2) of RP Act is filed by the respondent and
the copy of which is produced in the petition by the petitioner
himself. Under such circumstances, the contention of the
petitioner regarding defect in the caste certificate produced
which is issued by the competent authority, i.e., the Tahsildar,
who is authorized to issue such certificate, cannot be found
fault with.
13. Learned senior advocate further submitted that any
defect in the nomination papers cannot lead to rejection of the
same. As per Section 36(4) of RP Act, only if the defect in the
nomination paper is of substantial character, then only the
Returning Officer can consider rejection of the same.
Moreover, any such objection regarding the defect in the
nomination paper is to be raised by the Returning Officer. A
specific procedure is prescribed in the Returning officer's
handbook at clause 6.10.1 Note on item (viii). Admittedly, no
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such objection was raised before the Returning Officer either by
the petitioner or by any other person. Under such
circumstances, the contention of the petitioner in that regard is
to be rejected out rightly.
14. Learned senior advocate submitted that the dispute
regarding the caste of respondent that he does not belong to
'Mahar' caste or that the same is not notified in the State of
Karnataka as Scheduled Caste was raised for the first time by
filing rejoinder after the respondent filed IA No. 1 of 2023,
seeking rejection of the petition. There is absolutely no such
contention taken in the petition.
15. Learned senior advocate further contended that
regarding educational qualification of the respondent, there is
absolutely no dispute that he studied only upto PUC. No one
has disputed the said fact as declared in the nomination paper.
The contention of the petitioner is with regard to a paper
publication dated 12.06.2023, which is much after declaration
of election results. No such declaration that the respondent is a
law graduate was made in the nomination paper to see
disqualification of the respondent. Moreover, it is only the
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paper cutting produced by the petitioner, which cannot be
relied on to form any opinion regarding misleading of the
general public as required under RP Act.
16. Learned counsel placed reliance on the decision of
the Hon'ble Apex Court in People's Union for Civil Liberties
(PUCL and another) Vs Union of India and another1 to
contend that the Hon'ble Apex Court has made it very clear
that information relating to educational qualification of
contesting candidates does not serve any useful purpose and
by non disclosure of educational qualification of a candidate to
enable the general public to know about the same would not in
any manner violate Article 19(1)(a) of the Constitution of India.
Thus, the Hon'ble Apex Court held that disclosure of
information regarding educational qualification of a candidate is
not an essential component of Right to Information flowing
from Article 19(1)(a) of the Constitution of India. Under such
circumstances, even if the respondent has proclaimed that he is
a law graduate, it will not entitle the petitioner to seek the
relief as claimed in the petition. But when admittedly, no such
declaration is made by the respondent while filing his
1
(2003) 4 SCC 399
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nomination paper or during elections, even that ground is not
available under Section 123 of RP Act.
17. Learned senior advocate contended that even
though it is the contention of the petitioner that Crime No.113
of 2023 of Chowk Police Station was registered against one
Manikanta Rathod, the same was after the Assembly Election as
it was registered on 19.06.2023. Moreover, the respondent is
not the informant, who registered the FIR. Regarding Crime
No.33 of 2023 of Sadashivnagara Police Station, it was
registered on 13.02.2023 i.e., before declaration of Assembly
Election in Karnataka. No further material facts are pleaded nor
any particulars were provided to seek disqualification of the
respondent on such ground.
18. Learned senior advocate submitted that even
though the main contention of the petitioner is that the
respondent had indulged in corrupt practices by publishing the
Assembly Election manifesto-2023, the petitions filed making
similar allegations were already rejected by the co-ordinate
Benches of this Court by order dated 26.03.2024 dismissing
Election Petition No.14 of 2023 and order dated 25.04.2024
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dismissing Election Petition No.15 of 2023. Both the co-
ordinate Benches discussed at length about the very same
election manifesto, which is highlighted by the petitioner in this
petition and came to a consistent conclusion that the petitioner
is not entitled for any relief in the petition and accordingly, the
application similar to IA No.1 of 2023 came to be allowed.
19. Learned senior advocate further submitted that
even though civil appeals were filed before the Hon'ble Apex
Court, challenging both these orders, the same came to be
dismissed vide order dated 17.05.2024 keeping open the
question of law raised therein to be decided in an appropriate
case. Therefore, on facts similar petitions came to be dismissed
and the orders reached finality. He further submitted that the
similar Election Petition No.13 of 2023 was also dismissed vide
order dated 22.04.2025 by the co-ordinate Bench of this Court
by allowing the application filed under Order VII Rule 11(a) of
CPC, rejecting the petition. Under such circumstances, the
petitioner cannot succeed in the present matter.
20. Learned senior advocate placed reliance on the
decision of the Hon'ble Apex Court in S Subramaniam Balaji
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v/s State of Tamil Nadu2 in support of his contention that the
Hon'ble Apex Court considering a similar set of facts where
promise was made about freebies by a political party in the
State of Tamil Nadu categorically held that scheme for
distribution of free goods or freebies as part of public welfare
scheme in fulfillment of election promises made by the winning
political party in its election manifesto, upon coming to power
will not amount to corrupt practice. Learned senior advocate
submitted that the Hon'ble Apex Court while answering the
issue as to whether promises of a political party do constitute a
corrupt practice recorded a categorical finding that it does not.
21. Therefore, it is a fit case for rejection of the petition
as it does not disclose any cause of action. In view of the
above, learned senior advocate prayed for allowing IA No. 1 of
2023 and to reject the election petition as devoid of merits in
the interest of justice.
22. Per contra, learned senior advocate for the
petitioner opposing IA No.1 of 2023 contended that very
serious allegations are made against the respondent in the
2
2013 9 SCC 659
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petition, which requires a detailed consideration by this Court.
Learned senior advocate contended that the co-ordinate
Benches in Election Petition Nos.14 and 15 of 2023 have not
taken into consideration the contentions taken by the
petitioners, while passing the order. She also submitted that
due to health reasons, she could not appear before the Hon'ble
Apex Court when the civil appeals came to be disposed off.
Therefore, a review petition is filed seeking permission to
address the arguments on merits in detail. Such a request was
accepted by the Hon'ble Apex Court and the matter is now
pending for consideration. Therefore, she submits that the
decisions rendered by the co-ordinate Benches of this Court in
Election Petition Nos.14 and 15 of 2023 are pending before the
Hon'ble Apex Court and the same cannot be a basis to allow IA
No. 1 of 2023.
23. Learned senior advocate further submitted that the
facts and circumstances of the case made out in S
Subramaniam Balaji (supra) were entirely different. The
summary of the case as highlighted in paragraph 84 discloses
that judicial interference is permissible when the acts of
respondent is unconstitutional or contrary to the statutory
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provisions, and when the expenditure that are being incurred is
not for the benefit of the State. The Hon'ble Apex Court has
also made it clear that when the schemes challenged are not in
consonance with Article 14 of the Constitution of India,
interference by the Court is mandated. The Hon'ble Apex Court
has also made it very clear that the constitution has provided
various checks and balances before implementing the scheme.
The observation of the Hon'ble Apex Court regarding passing of
suitable appropriation bill for implementation of such schemes
is no more res-integra in view of its later decision in Bhim
Singh Vs Union of India3, wherein, the Hon'ble Apex Court
settled the scheme for its proper implementation. Therefore, a
scheme for implementation is before us and the manifesto,
which is under challenge in this petition could be considered
under the said scheme.
24. Learned senior advocate alternatively contended
that Article 323-A(2)(d) of the Constitution of India excludes
the jurisdiction of either the High Court or Supreme Court,
except the jurisdiction of Hon'ble Apex Court under Article 136
of the Constitution of India to entertain any matter pertaining
3
(2010) 5 SCC 538
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to the process of election. Article 323(b)(f) of the Constitution
of India refers to elections to either House of Parliament or the
House or either House of the Legislature of a State, but
excluding the matters referred to in Articles 329 and 329A and
accordingly, the RP Act was enacted. It is only the Election
Tribunal which is constituted in accordance with the provisions
of Constitution of India will have the right to consider all these
questions pertaining to the elections. She also referred to
Article 329-B of the Constitution of India to contend that there
is a bar for interference in such matters even by the
constitutional Court except under Article 136 of the Constitution
of India. But the Hon'ble Apex Court in S Subramaniam
Balaji (supra) assumed jurisdiction to consider all these
questions and to give a finding while acting under its writ
jurisdiction. Therefore, the said decision is without jurisdiction
and without authority of law. Hence, it is to be ignored by this
Court. It is only the Election Tribunal constituted under the
provisions of Constitution of India is competent to consider any
such matters but not either the High Court or Supreme Court
invoking the writ jurisdiction.
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25. Learned senior advocate referred to the preamble of
RP Act, 1951, to contend that the Parliament has enacted the
law to guide conduct of elections to the House of Parliament
and House of Legislature of each State and also to consider
qualifications or disqualifications of the members. It is to check
the corrupt practices and other offences connected with such
elections and also to consider the disputes arising out of or in
connection with such elections.
26. Learned senior advocate by referring the definitions
of the word 'appropriate authority', 'election' and 'political
party' as defined under Section 2(b), (d) and (f) of RP Act,
1951 along with Section 29-A of RP Act in part IV-A, contended
that the Karnataka Pradesh Congress Committee (KPCC) is not
a political party recognized under the Act. It is only the Indian
National Congress which was registered as a political party is
recognized by law. She further submitted that the election
manifesto produced as per Annexure-F was not issued by
Indian National Congress as tried to be projected, but it was by
KPCC, which makes all the difference. Learned senior advocate
also referred to Section 2(h) of the Election Symbols (R & A)
Order 1968 in support of her such contention. Under such
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circumstances, KPCC not being a registered political party,
could not have issued the election manifesto promising to
distribute freebies which is detrimental to the fiscal health of
the State. The Committee could not have indulged in corrupt
practice of polluting the minds of the voters for the purpose of
getting the votes and spend public money lavishly unmindful of
the development of the State.
27. Learned senior advocate referring to IA.1 of 2023
filed under Order VII Rule 11(a) of CPC read with Section 87 of
RP Act contended that none of these provisions are applicable
for the respondent to seek rejection of the petition. The
election petition is filed by the petitioner as per the procedure
contemplated under High Court Rules. The requirement as
referred to in Sections 81, 82, 83 and 117 of RP Act are
complied with in letter and spirit. Order VII Rule 11(a) of CPC
refers to rejection of the plaint when it does not disclose cause
of action. The petitioner has stated in so many words about
the cause of action for filing the petition. Hence, the
application cannot be entertained.
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28. Learned senior advocate referring to the decisions
of the constitution Bench of the Hon'ble Apex Court in
Minerva Mills Ltd. and Others Vs Union of India and
Others4 and S R Bommai Vs Union of India5 contended
that the Hon'ble Apex Court ignored the verdict of two larger
Benches while deciding S Subramaniam Balaji (supra) and
thus, exceeded its authority and passed the order without
jurisdiction. Since the decision of S Subramaniam Balaji
(supra) is per-incurium, this Court is bound to ignore the same.
29. Learned senior advocate referring to the points for
consideration raised in S Subramaniam Balaji (supra) in
paragraph 55 contended that the facts of the case considered
by the Hon'ble Apex Court was entirely different as the Court
was considering the scheme referred to therein to give a finding
as to whether it is violative of Article 14(2) of the Constitution
of India. She referred to Annexure-F - Election manifestation
ensuring 5 guarantees to contend that the same would not fall
under the purview of public purpose which is referred to in
Chapter-IV of the Constitution of India. While Article 14(2) of
4
1980 (3) SCC 625
5
(1994) 3 SCC 1
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the Constitution of India falls under Chapter-III which refers to
equality before law, the 5 guarantees declared in the election
manifesto are in clear violation of Article 14(2) of the
Constitution of India. Free bus, Gruhalakshmi and other
guarantees were restricted only for ladies without there being
any reasonable justification. When the schemes violate Article
14(2) of the Constitution of India and this discrimination is only
on the basis of sex, even according to the decision of S
Subramaniam Balaji (supra), this Court is required to
interfere with.
30. Learned senior advocate submitted that in S
Subramaniam Balaji (supra), the Court has not decided its
jurisdiction and the same was kept open. With reference to
Order VII Rule 11(d) of CPC, she submitted that it refers to the
words 'barred by any law'. Since the word "law" not only refers
to the law enacted by Parliament or State Legislature, but it
also includes the law laid down by the Hon'ble Apex Court by
virtue of Article 141 of Constitution of India.
31. Learned senior advocate referred to Article 323-A of
Constitution of India which refers to Administrative Tribunals
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and highlighted Article 323A(2)(d) of the Constitution of India
to contend that the Tribunal constituted in this Chapter
excludes the jurisdiction of all Courts, except the jurisdiction of
Supreme Court under Article 136 of Constitution of India. When
there is clear exclusion of jurisdiction of even the Hon'ble Apex
Court, except its jurisdiction under Article 136 of Constitution of
India, it could not have been proceeded to decide the matter,
exercising its power under Articles 32 and 226 of Constitution
of India. Therefore, the decision of the Hon'ble Apex Court in S
Subramaniam Balaji (supra), is without jurisdiction. Hence,
the same may be ignored.
32. Learned senior advocate further submitted that it is
the settled proposition of law that under Order VII Rule 11 of
CPC, to consider as to whether the plaint is to be rejected or
not, only the averments made in the plaint is to be taken into
consideration along with the documents relied on by the
plaintiff. The defence taken by the respondent in the objection
statement or the documents that are produced by him are not
relevant to be taken into consideration at this stage. Moreover,
the averments made in the plaint is to be considered as a
whole. It is also the settled proposition of law that if
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complicated question of law is to be decided, then the Court will
not venture to proceed to reject the plaint at the threshold, but
an opportunity will have to be given to the petitioner to prove
his contention and the decision could be taken regarding the
defence taken by the respondent only after full-fledged trial.
33. Learned senior advocate referred to the decision of
the Hon'ble Apex Court in Kimneo Haokip Hangshing v/s
Kenn Raikhan and Others6 to contend that the election
petition cannot be rejected at the threshold when disputed facts
are raised by the petitioner, which is to be considered after full-
fledged trial.
34. Learned senior advocate referred to the decision of
Hon'ble Apex Court in Dahiben Vs Arvindbhai Kalyanji
Bhanusali & Others7 particularly paragraph Nos.23.3 to 23.6
to contend that even if this Court finds that there is no cause of
action specifically stated by the petitioner or disclosed in the
petition, the Court is required to scrutinize the entire petition
and the documents that are produced in support of such
contentions. If the contentions taken by the petitioner give rise
6
2024 SCC OnLine SC 2548
7
2020 (7) SCC 366
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to a cause of action, then the petition is not liable for rejection.
Learned senior advocate submitted that a pen drive containing
the speeches made by the respondent and voluminous
documents which are relevant to be taken into consideration at
the time of trial are produced. Therefore, a full-fledged trial is
to be held to enable the petitioner to prove the allegations, but
it is not a case to throw away the petition of the petitioner at
the threshold.
35. Learned senior advocate contended that even
though the respondent contends that the co-ordinate Benches
of this Court have rejected the petition in similar matters, non-
filing of the caste certificate in the prescribed format, filing of
several criminal cases either to threaten or to influence the
voters are the peculiar facts pleaded in the present petition.
Under such circumstances, the decision of the co-ordinate
Benches will not have any bearing in this matter.
36. Learned senior advocate further submitted that in S
Subramaniam Balaji (supra), at paragraph No.81, it is
categorically held that the correct forum to decide the issue is
the Election Tribunal and not the writ Court in a writ petition. In
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paragraph 83, the Hon'ble Apex Court made it clear that the
point of jurisdiction of the Hon'ble Apex Court is kept open. In
paragraph 84, it recorded the summary of the finding to hold
that the scheme challenged in that petition is in consonance
with Article 14 of Constitution of India. Whereas in the present
case, some of the guarantees declared are meant only for
women, which is in clear violation of Article 14 of Constitution
of India. It amounts to discrimination and denial of equality
before the law to all persons within the State, which is the
mandate of the Constitution of India.
37. Learned senior advocate contended that even
though the scheme of freebies is not challenged in this petition
by seeking a specific prayer, the petition is well within Section
100 of RP Act, which is a self-contained enactment. Learned
senior advocate referred to the decision of the Hon'ble Apex
Court in Kanimozhi Karunanidhi v/s A Santhana Kumar &
Ors8 and pointed to Paragraphs 18, 19 and 20 to contend that
the position of law is made very clear by the Hon'ble Apex
Court. Therefore, it is contended by the learned senior
advocate that this Court being the Election Tribunal is having
8
2023 Online SCC 573
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jurisdiction to decide the issue that is to be framed on the basis
of pleading of the parties. No grounds are made out for
rejection of the petition at the threshold. Hence, she prays for
dismissal of IA No.1 of 2023 and for framing issues.
38. In view of the rival contentions urged by learned
counsel for the parties, the point that would arise for my
consideration is:
"Whether the respondent has made out
any ground to allow IA No.1 of 2023 filed for
rejection of the petition?"
My answer to the above point is in the 'Affirmative' for
the following:
REASONS
39. It is noticed that the petitioner has approached this
Court under Section 81 of RP Act to declare that the respondent
has followed corrupt practice and was not qualified to be
chosen to contest the Assembly Election from 40-Chittapur(SC)
constituency and therefore, the declaration of election result in
favour of the respondent is to be held as void. Broadly, the
contention of the petitioner could be classified into 4 categories.
Primarily, it is the contention of the petitioner that since the
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Karnataka Pradesh Congress Committee published its election
manifesto, assuring of providing five guarantees if they win in
the election, it amounts to corrupt practice. Since the
respondent is also part of the Committee as he has proclaimed
such guarantees if he is successful in the election and in view of
the same he got elected, he is to be disqualified in view of
Sections 123(1), 123(2), 123(4), 123(6) of RP Act. Secondly, it
is the contention of the petitioner that the caste certificate
produced by the respondent while filing the nomination was
meant for Gram Panchayat election for the period 2020-21. The
same was not valid for the Assembly Election and therefore, the
respondent is to be disqualified. Thirdly, it is the contention of
the petitioner that the respondent has misled the voters
regarding his educational qualification by giving different
versions at different times. It is stated that he proclaimed that
he is a law graduate even though he declared that he studied
only upto PUC in the earlier nomination papers. Fourthly, it is
the contention of the petitioner that a false criminal cases were
registered by the respondent against others to threaten them
from participating freely in the general election.
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40. The respondent has filed IA.1 of 2023 seeking
rejection of the petition under Order VII Rule 11 of CPC. On
consideration of the rival contentions as highlighted above,
learned senior advocate for the respondent has contended
broadly that there is no format prescribed under RP Act to
declare the caste of the candidate. Section 33 (2) of RP Act
only mandates declaration of his caste which the respondent
has declared in the nomination paper. The copy of nomination
paper is produced before this Court where the respondent has
specifically declared that he is a member of Mahar - which is a
scheduled caste. It is not the contention of the petitioner that
the respondent does not belong to Mahar caste nor it is his
contention that Mahar caste is not a Scheduled Caste. The only
contention raised by the petitioner is that the format produced
as per Annexure-A is meant to be submitted to the Gram
Panchayat election for the years 2020-21 and not for Assembly
Election. Section 33(2) of RP Act mandates to provide a
declaration by the candidate specifying the caste or tribe of
which he is a member and the area in relation to which caste
or tribe is a Scheduled Caste or as the case may be a
Scheduled Tribe of the State. Therefore, it is the requirement
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of law under the special enactment that the candidate shall not
be qualified to be chosen to fill the seat unless the nomination
paper contains such declaration.
41. The materials produced before the Court, in
particular Annexure - A is a certificate in Form-B issued by the
Tahsildar of Chittapur certifying that the respondent is a
member of Mahar - a scheduled caste. The copy of nomination
paper submitted by the respondent to the Returning Officer
clearly discloses that it contains a declaration that he is a
member of Mahar - the Scheduled Caste of the State of
Karnataka in relation to Chittapur area. Under such
circumstances, the contention of the petitioner that the
respondent has not submitted caste certificate in the prescribed
format cannot be accepted, that too, when the petitioner never
disputed the fact that the respondent is a member of Mahar -
Scheduled Caste.
42. The other contention raised by the petitioner is with
regard to the respondent indulging in corrupt practice with
reference to Section 123 of RP Act. This contention is with
reference to the election manifesto relied on by the respondent
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while contesting the election promising various guarantees
which is termed as freebies, to win over the voters.
43. In this regard, learned senior advocate for the
respondent placed reliance on decision of the Hon'ble Apex
Court in S Subramaniam Balaji (supra), the Hon'ble Apex
Court considered the following point as referred to in paragraph
55.1(i) as under:
"55.1(i) Whether the promises made by the
political parties in the election manifesto would
amount to 'corrupt practices' is as per Section 123
of RP Act?"
44. The Hon'ble Apex Court gave a finding on the above
point at paragraphs 57, 61, 61.1, 61.2, 61.3 and 61.4 as
under:
"57. Keeping the parameters fixed in the
above section, we have to analyse the claim of
both the parties hereunder. A perusal of clauses
(1) to (8) of Section 123 makes it clear that it
speaks only about a candidate or his agent or
any other person. There is no word about
political parties. Taking note of the conditions
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mandated in those sub-sections, let us test the
respective stand of both the parties.
61. As appealing this argument may sound
good, the implementation of this suggestion
becomes difficult on more than one count:
61.1. Firstly, if we are to declare that
every kind of promises made in the election
manifesto is a corrupt practice, this will be
flawed. Since all promises made in the election
manifesto are not necessarily promising freebies
per se, for instance, the election manifesto of a
political party promising to develop a particular
locality if they come into power, or promising
cent per cent employment for all young
graduates, or such other acts. Therefore, it will
be misleading to construe that all promises in
the election manifesto would amount to corrupt
practice. Likewise, it is not within the domain of
this Court to legislate what kind of promises can
or cannot be made in the election manifesto.
61.2. Secondly, the manifesto of a political
party is a statement of its policy. The question
of implementing the manifesto arises only if the
political party forms a Government. It is the
promise of a future Government. It is not a
promise of an individual candidate. Section 123
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and other relevant provisions, upon their true
construction, contemplate corrupt practice by
individual candidate or his agent. Moreover,
such corrupt practice is directly linked to his own
election irrespective of the question whether his
party forms a Government or not. The
provisions of the RP Act clearly draw a
distinction between an individual candidate put
up by a political party and the political party as
such. The provisions of the said Act prohibit an
individual candidate from resorting to promises,
which constitute a corrupt practice within the
meaning of Section 123 of the RP Act. The
provisions of the said Act place no fetter on the
power of the political parties to make promises
in the election manifesto.
61.3. Thirdly, the provisions relating to
corrupt practice are penal in nature and,
therefore, the rule of strict interpretation must
apply and hence, promises by a political party
cannot constitute a corrupt practice on the part
of the political party as the political party is not
within the sweep of the provisions relating to
corrupt practices. As the rule of strict
interpretation applies, there is no scope for
applying provisions relating to corrupt practice
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contained in the said Act to the manifesto of a
political party.
61.4. Lastly, it is a settled law that the
courts cannot issue a direction for the purpose
of laying down a new norm for characterising
any practice as corrupt practice. Such directions
would amount to amending provisions of the
said Act. The power to make law exclusively
vests in the Union Parliament and as long as the
field is covered by parliamentary enactments, no
directions can be issued as sought by the
appellant. As an outcome, we are not inclined to
hold the promises made by the political parties
in their election manifesto as corrupt practice
under Section 123 of the RP Act."
45. Thus, the Hon'ble Apex Court considered similar
questions as to whether giving promises in the election
manifesto by the political parties would amount to corrupt
practices or not as referred to under Section 123 of RP Act,
recorded a clear finding that it is not. It is held that it is left to
the discretion of the Parliament to lay down any norms. Under
such circumstances, this Court cannot proceed to give a finding
inconsistent with the findings recorded by the Hon'ble Apex
Court.
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46. Learned senior advocate for the petitioner referring
to paragraphs 85 and 86 in S Subramaniam Balaji (supra)
contended that the Hon'ble Apex Court indeed has held that
distribution of freebies of any kind undoubtedly influence all
people which shakes the root of free and fair election to a large
degree and therefore, directed Election Commission to frame
guidelines in consultation with the registered political parties
which could act as a moral code of conduct for the purpose of
reserving purity of the election process and to enable the
Commission to hold free and fair election. Accordingly, the
Election Commission of India framed model code of conduct
after convening the meeting with all the registered political
parties. Therefore, it cannot be said that the Hon'ble Apex
Court has accepted such corrupt practice of giving guarantees
about distribution of freebies by a political party while
contesting the election.
47. The Hon'ble Apex Court considered the contentions
of the parties before it elaborately where the Government of
Tamilnadu had came up with similar election manifesto of
distributing colour TVs, Laptops, Mixer Grinders etc., to a group
of citizens. It is held that the concept of livelihood and standard
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of living has changed considerably as the time passes. What
was once considered to be a luxury has become a necessary
after efflux of time. Since the concept of livelihood is no
longer confined to bare physical existence by providing food,
cloth and shelter, it was held that distributing largesse in the
form of such colour TVs, Laptops etc., to a group of persons is
directly related to Directive Principles of State Policy. The
Hon'ble Apex Court has also held that the functioning of the
Government is controlled by the Constitution, the laws of the
land, the Legislature and the Comptroller and Auditor General
of India. It refers to Articles 73 and 162 of the Constitution of
India, dealing with executive power of Union of India and the
State, which is co-extensive with its legislative power, enables
the Government to frame a scheme in exercise of its executive
powers. It is also noticed that there are various checks and
balances within the mandate of Constitution before a scheme
can be implemented as long as such schemes are within the
realm of public purpose and the money for the scheme is
withdrawn with appropriation of bills. Under such
circumstances, it was held that the Court has limited power to
interfere with such schemes. The Hon'ble Apex Court
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considering the rival contentions raised before it summarized
its findings at paragraph 84 of the judgment and held that the
promises in the election manifesto cannot be read into Section
123 of RP Act for declaring it to be a corrupt practice. Thus,
such promises in the election manifesto do not constitute as a
corrupt practice under prevailing law. By referring to its earlier
decision in Ramachandra G Kapse Vs Haribansh Ramakbal
Singh9, re-iterated that ex-facie contents of a manifesto by
itself cannot be a corrupt practice committed by the candidate
of that party.
48. It is relevant to note that such schemes were
challenged in the said writ petition and in the light of such
challenge, it was held that it falls within the realm of fulfilling
Directive Principle of State Policy and thereby falling within the
scope of public purpose. It is also made clear that judicial
interference is permissible only when the action of the
Government is unconstitutional or contrary to a statutory
provision and not when such action is not wise or that the
extent of expenditure is not for the good of the State. The
Court held the petition before it is fit for dismissal dehors the
9
(1996) 1 SCC 206
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jurisdiction issue and held that such issue of jurisdiction is left
open to be considered by the Court later.
49. The Hon'ble Apex Court, however, held that in
reality distribution of freebies of any kind undoubtedly
influences all people, it shakes the root of free and fair election
to a large degree. It vitiates the electoral process. However, it
is stated that the Court has limited power to issue directions to
the legislature to legislate on a particular issue. Therefore, the
Election Commission of India was called upon to frame
guidelines for the same in consultation with all the recognized
political parties for election manifesto to be released by political
party in the form of model code of conduct for such parties and
the candidates. The Hon'ble Apex Court dealt with similar issue
of promising distribution of freebies in the election manifesto
and observed that such practices would definitely affect the
fiscal health of the State and influences the general public in
exercising their franchise, which is already highlighted by the
Hon'ble Apex Court with necessary directions to the Election
Commission. In the meantime, the Court has also exercised
restraint to interfere with distribution of such freebies as
promised in the manifesto.
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50. When the Hon'ble Apex Court after considering the
objections regarding its jurisdiction kept it open to be decided
in any other appropriate matter, the contention of the learned
senior advocate for the petitioner to ignore the decision in S
Subramaniam Balaji (supra) on the ground that it is
inconsistent, passed without jurisdiction or that it is per-
incurium, cannot be accepted.
51. It is pertinent to note that KPCC, the State unit of
Indian National Congress has issued the manifesto providing 5
guarantees to the citizens if they are elected to power.
Admittedly, as many as 136 candidates won the elections with
the help of same election manifesto. It is a matter of fact that
the petitioner has never challenged declaration of results of
many such candidates, but has chosen to challenge the election
of the respondent. Moreover, there is no reason for not
challenging the scheme of such manifesto issued by the
political party.
52. It is brought to the notice of the Court that similar
petitions were filed before this Court in Election Petition Nos.13,
14 and 15 of 2023, wherein similar contentions were raised. In
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all these petitions, the applications that were filed under Order
VII Rule 11 of CPC were allowed and the Election Petitions were
dismissed, as there is no cause of action and there is no triable
issue. Admittedly, in Election Petition Nos.14 and 15 of 2023
the orders passed by the co-ordinate Benches of this Court
were challenged before the Hon'ble Apex Court, but the same
were not entertained. Under such circumstances, I do not find
any merit in the contention raised by the learned senior
advocate to dismiss the application filed by the respondent.
53. In view of all these facts and circumstances,
without discussing much on the subject, I am of the opinion
that the contention taken by the petitioner that the election
manifesto of which the petitioner is a party, amounts to
corrupt practice as referred to in Section 123 of RP Act, is liable
to be rejected and accordingly, it is rejected.
54. The next contention raised by the petitioner is with
regard to registration of false criminal cases by the respondent
against others in order to threaten and prevent them from
participating freely in the general election. The materials placed
before the Court discloses that Crime No.113 of 2023 of Chowk
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Police Station was registered against one Manikanta Rathod,
but the same was registered on 19.06.2023 i.e., after Assembly
Election and moreover, the informant was not the respondent,
but it was somebody else. There is reference to Crime No.33
of 2023 of Sadashivanagar Police Station, which was registered
on 13.02.2023 i.e., before declaration of Assembly Election in
Karnataka. Under such circumstances, even this contention
taken by the petitioner cannot be accepted.
55. The other contention raised by the petitioner is with
regard to non disclosure of proper educational qualification of
the respondent in the nomination paper and thereby misleading
the voters. It is contended by the petitioner that there was a
paper publication with reference to the respondent that he is a
law graduate. But his declaration in the nomination papers is
that he studied only upto PUC. Admittedly, even in earlier
declarations, the respondent has declared his educational
qualification as PUC. Under such circumstances, the paper
publication cannot be relied on to contend that the same was
with an intention to mislead the voters. Interestingly, this
paper publication is dated 12.06.2023, which is much after
declaration of election results.
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56. The Hon'ble Apex Court in People's Union for
Civil Liberties (supra), made it clear that information relating
to education qualifications of contesting candidates do not
serve any useful purpose and non disclosure of the same will
not violate Article 19(1)(a) of the Constitution of India. Thus, it
is held that the information regarding educational qualification
of a candidate is not essential component of Right to
information. Moreover, the special enactment does not
mandate disclosure of such information while filing the
nomination paper. Under such circumstances, even this
contention of the petitioner is liable to be rejected and
accordingly, it is rejected.
57. It is pertinent to note that after considering the
contentions taken by the petitioner, it is not satisfying any of
the grounds highlighted under Section 100 of RP Act to declare
the election to be void. It is settled proposition of law that in
order to exercise power under Order VII Rule 11 of CPC, only
the averments made in the plaint is to be taken into
consideration. Even after taking into considerations the
averments made in the plaint, if it does not disclose cause of
action, then the plaint is liable to be rejected. In the present
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case, the election petition which is in the form of plaint does
not disclose any cause of action to try the petition. It is the
settled position of law that there has to be pleading of material
facts for the purpose of raising serious triable issue. In the
absence of any such material facts, it cannot be said there is
any triable issue and therefore, the petition is liable to be
rejected.
58. In view of the above, I am of the opinion that the
petitioner has not made out any grounds to frame an issue to
try the same. The grounds made out in the petition do not
disclose any cause of action and under such circumstances, the
application IA.1 of 2023 filed by the respondent is liable to be
allowed. Accordingly, I answer the above point in the
affirmative and proceed to pass the following:
ORDER
i) IA.1 of 2023 filed by the respondent under Order
VII Rule 11(a) of CPC read with Section 87 of the
Representation of People Act, 1951, is hereby
allowed.
ii) Consequently, the Election Petition is rejected.
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In view of the rejection of election petition, all pending
IAs stands disposed off.
Sd/-
(M G UMA)
JUDGE
SPV/BGN
List No.: 19 Sl No.: 1