Order on I.A.Nos.2/2012 & 1/2013

1. I.A.No.2/2012 is filed by the returned candidate (respondent no.1) to dismiss the election petition for not stating the material facts in the Election petition and for non-disclosure of cause of action. I.A.No.1/2013 is also filed by him to strike down several paragraphs in the Election petition on the ground that they are devoid of material facts.

2. I have heard the learned counsel for the petitioner and respondent no.1 and examined the matter in the light of the decisions referred to by them.

3. In the Election petition, the petitioner has challenged the election of respondent no.1 to the Karnataka Legislative Council from the Bangalore Graduates' Constituency. The polling was held on 10.06.2012 and respondent No.1 was declared elected on 14.06.2012. The petitioner was also one of the candidates sponsored by Janata Dal (secular) and the returned candidate was sponsored by Bharatiya Janata Party. It is stated that respondent no.1 got elected by a margin of 244 votes. In the election petition, the petitioner, inter alia, has prayed for setting aside the election of respondent no.1 and for recounting of the votes polled.

4. The Election of the returned candidate (respondent no.1) is challenged on the following two grounds:

(i) Bharatiya Janata Party with the consent of respondent No.1 (returned candidate) has published an appeal (pamphlet) depicting a model ballot paper wherein respondent No.1 sought for first preference vote for himself and fourth preference vote for the petitioner, which according to the petitioner, misled the voters interfering with their free exercise of electoral right. It is also stated that the appeal (pamphlet) contained false and incorrect information. This publication, according to the petitioner, amounted to corrupt practice within the meaning of Section 123(2) & (4) of the Representation of the People Act, 1951 ('the Act' for short);

(ii) 761 votes cast in favour of the petitioner were improperly rejected by the Returning Officer resulting in the defeat of the petitioner.

5. In view of the above, it is stated that the election of the returned candidate is to be declared as void as per Section 100(1)(b)(d)(iii) & (iv) of the Act.

6. The question that requires to be examined by this Court is as to whether the Election Petition is liable to be dismissed for non-disclosure of 'cause of action' and for not stating all the 'material facts'. To answer the question, it is relevant to refer to the facts stated in the election petition.

7. Paras 6, 7 & 8 of the Election petition relates to ground No.(i) stated above; hence, it is relevant to refer to the said paras:

"6. It is submitted that the 1st Respondent has indulged in falsely publishing an appeal and circulated the same to prejudice the election of the Petitioner and exercised undue influence and interfered with the electoral right, thereby committing the corrupt practice within the meaning of Section 123(2) & (4) of the Act. In the said Appeal, apart from others, the 1st Respondent had sought for first preference vote in his favour and fourth preference vote in favour of the Petitioner, by marking in the said manner in a Model Ballot Paper printed therein. The 1st Respondent had also made statements knowing and believing it to be false and passing of the same as truth. The 1st Respondent has also propogated several issues/things including certain government programmes, as if it is his own and as though it is true. The material facts and particulars are as stated hereunder.

7. It is submitted that the Bharatiya Janata Party, the Political Party of the first Respondent had published the said appeal with the consent of the first Respondent both in Kannada and English languages soliciting first preferential votes in his favour, with a Model Ballot Paper. This was published on behalf of the Bharatiya Janata party by its General Secretary and printed at Abhimani Publications Ltd. This appeal was distributed/circul