K. Devanna Naik vs S. Pakkirappa and Others

Mohan Shantanagoudar, J.—Misc. Cvl. No. 1360/2011 is filed by the 1st Respondent under Order VI Rule 16 of CPC read with Section 87 of the Representation of the People Act, 1951, for striking down the pleadings.

Misc. Cvl. No. 1362/2011 is filed by the 1st Respondent under Order VII Rule 11(a) of CPC read with Section 87 of the Representation of the People Act, 1951, praying for rejection of the election petition as the same does not disclose cause of action.

The election petition is filed for the following reliefs:

(a) and declare the election Respondent No. 1 of Raichur parliamentary constituency is invalid and illegal as the Respondent no 1 & 2 were not qualified to accept their nomination and same is void as committed corrupted and illegal practice.

(b) kindly declare that the Petitioner is elected candidate by declaring that he secured highest votes, Form No. 6 Raichur parliamentary constituency as schedule tribe.

(c) To set-aside the order passed by Respondent No. 9 u/s 100(1)(i).

From the above, it is clear that the Petitioner seeks not only declaration of election of Respondent No. 1 relating to Raichur Parliamentary constituency as invalid, but, also seeks declaration that the Respondents 1 and 2 were not qualified to contest the election as they are not belonging to Scheduled Tribe category (Raichur Parliamentary constituency during the relevant period was reserved for Scheduled Tribe category). The Petitioner seeks further declaration that he is an elected candidate since he has secured highest votes. Certain other reliefs are also sought for.

The aforementioned applications are to be considered in the light of the reliefs sought for in the election petition. According to the advocate for Respondent No. 1, the pleadings in paragraphs-8 to 12 of the election petition are vague, bereft of material facts and do not disclose complete cause of action.

Sri M.N. Nanjunda Reddy, learned Senior Advocate appearing on behalf of the 1st Respondent submits that the averments made in paragraph-8 may not be sufficient to conclude that the allegations made against Respondent No. 1 therein are true and correct. According to him, the allegations made against Respondent No. 1 that Respondent No. 1 has given false declaration in Form-D claiming to be belonging to Hindu Walmiki caste which comes under Scheduled Tribe category cannot be accepted. The question as to whether the certificate relating to caste is illegally obtained for the purpose of contesting election or the question as to whether Respondent No. 1 belongs to Hindu Walmiki community or Boya community is purely a question of fact which has to be determined based on the material to be collected during the course of trial. Even the question as to whether Hindu Walmiki community is one of the community coming under Scheduled Tribe category or not is also the matter to be considered later during the course of trial. The averments made in paragraph-8 are very much necessary for consideration of the election petition, inasmuch as, it is the specific case of the Petitioner that the 1st Respondent does not belong to Scheduled Tribe category and consequently he is not entitled to contest the election from the constituency reserved for Scheduled Tribe category. Hence, the averments made in paragraph-8 which contain material facts should remain.

In paragraph-9 of the election petition, the Petitioner alleges that Respondent No. 8 who withdrew the nomination paper later was a recognised candidate from Bharatiya Janata Party The Respondent No. 1 who was stated to be dammi candidate for Respondent No. 8 should not have been permitted to contest the election, particularly when the nomination paper filed by Respondent No. 1 was not subscribed by 10 proposers who were the voters of the constituency. The sum and substance of the averments made in paragraph-9 reveal that the nomination paper of the 1st Respondent was not proposed by 10 proposers and therefore, he should have been treated as an independent candidate and free symbol ought to have been allotted to him. Since such a procedure is not adopted, according to the Petitioner, the declaration of result of Respondent No. 1 was improper.

Sri M.N. Nanjunda Reddy, learned Senior Counsel further submits that the plea is not supported by any material fact; that the 8th Respondent has withdrawn the nomination paper on the date and time fixed for withdrawal of nominations, and after withdrawing of the nomination paper by Respondent No. 8, the list of contesting candidates were declared by the Election Officer. Thus, according to him, the allegations made in paragraph-9 are baseless.

The question as to whether the nomination paper of the 1st Respondent was supported by 10 proposers or not also is a pure question of fact which has to be decided based on the material to be collected during the course of trial. But, the material on record prima facie reveal that the nomination paper of Respondent No. 8 was permitted to be withdrawn by him on the date and time fixed for withdrawing the nomination papers. Thus, it cannot be said that the withdrawing of nomination paper by Respondent No. 8 was incorrect. However, since the Petitioner alleges that the nomination paper of Respondent No. 1 is not supported by 10 proposers, the said question has to be gone into. Hence, the pleadings in paragraph-9 cannot be struck down.

However, Sri M.N. Nanjunda Reddy, learned Senior Counsel is justified in submitting that the averments made in paragraph-10 are based on conjectures and surmises. The Petitioner avers something against the Respondent No. 1 - the returned candidate in the said paragraph. According to the Petitioner, he has reliably learnt that the Respondent No. 1 did not produce the voters list extracts at the time of submitting application No. 2A; but, the relevant records were produced subsequently in collusion with the Returning Officer. He alleges that Respondent No. 1 at the instigation of the Bharatiya Janata Party, which is a ruling party in the State, has passed the order in favour of the Bharatiya Janata Party which is a corrupt party and that has resulted in material alteration of result of the election. He further avers that Respondent No. 9 i.e., Returning Officer could not have passed such an order at the instance and instigation of Bharatiya Janata Party. There is no question of Respondent No. 1 passing any order at the instance and instigation of Bharatiya Janata Party, inasmuch as, the Respondent No. 1 is a returned candidate; Respondent No. 1 is not a Returning Officer. However, in the next line, the Petitioner has stated that Respondent No. 9 could not have passed such an order at the instance and instigation of Bharatiya Janata Party. These facts averred are based merely on conjectures, surmises and assumptions. No material fact is disclosed in paragraph-10 which is helpful to the case of the Petitioner. Moreover, the allegations are made against Respondent No. 1 as if he is a Returning Officer and such allegations are without any basis. In view of the same, the pleadings in paragraph-10 of the election petition need to be struck off. Accordingly, they are struck off.

In paragraph-11 of the election petition, the Petitioner has averred that Respondent No. 2 does not belong to Scheduled Tribe and therefore he should not have been elected to contest the election as the constituency in question is a reserved constituency for Scheduled Tribe category. It is specifically averred that Petitioner belongs to Kshatriya caste which does not come within Scheduled Tribe category. Since the declaration is sought for by the Petitioner in his favour for getting him elected, the averments made in paragraph-11 against Respondent No. 2 will have to remain, inasmuch as, the same will have to be inquired into.

In paragraph-12 of the election petition, the Petitioner has submitted that the nominations of Respondents 1 and 2 ought not to have been accepted as they do not belong to Scheduled Tribe and that therefore, the Petitioner who secured third highest number of votes should be declared elected. In this context, it is argued by Sri M.N. Nanjunda Reddy, learned Senior Counsel appearing on behalf of the 1st Respondent that there is no averment in the entire petition that the votes which were secured by Respondents 1 and 2 would have been polled in favour of the Petitioner in the absence of the candidature of Respondents 1 and 2 and therefore, the averments made in paragraph-12 are also merely on assumptions and surmises. He further submitted that the wrong acceptance of nomination paper of Respondent No. 2 would not materially affect the result of the returned candidate, inasmuch as, all the votes polled in favour of Respondent No. 2 would have been polled in favour of the Petitioner and the Petitioner cannot presume that all the votes polled in favour of Respondents 1 & 2 would have been polled in his favour. Such submissions will have to be considered at the time of disposal of the matter after full fledged trial. Evidence may be necessary to consider such questions of fact. Hence, this Court does not wish to strike off the pleadings in paragraphs-11 and 12 of the election petition In view of the above, following order is made:

The pleadings in paragraph-10 of the election petition. are struck off. Other pleadings will continue to remain. Since material averments containing material facts are averred in the Election Petition, the prayer for rejection of the election petition. is rejected.

Accordingly, Misc. Cvl. No. 1360/2011 is disposed of with a direction to strike off the pleadings contained in paragraph-10 of the election petition. Misc. Cvl. No. 1362/2011 is rejected.