Back
2015 Supreme(Kar) 316
High Court of Karnataka
A.V. CHANDRASHEKARA, J.
K. Krishnaraj Hegde - Appellant
Versus
Anil C. Lobo & Others - Respondents
M.F.A. No. 10283 of 2013 (KMC)
Decided On : 10-03-2015
For the Appellant:G. Balakrishna Shastry, Advocates.
For the Respondents:R1, S. Rajashekar, Advocate, R2 & R3, Notice.
Headnote:CODE OF CIVIL PROCEDURE, 1908 - Order 6, Rules 14 & 15: [A.V. Chandrashekara, J] Election Petition - Verification of Pleadings - Verifying affidavit not annexed to Election Petition - Petitioner not signed on the foot of each page - Held, Petitioner may be called upon to remove the lacunae by adding supplementary verification and a date to be fixed for such rectification and verification with reasons for earlier omission.
KARNATAKA MUNICIPAL CORPORATIONS (ELECTION) ACT, 1979 - Section 21: [A.V. Chandrashekara, J] Election Petition - Challenge to election of Respondent-1 as Councillor of a Ward - Respondent-1 belonged to backward class category ’B’, a Christian - Income-Tax and Sales Tax Assessee - Appellant belonged to backward class and a Jain - Respondent remained absent - Held, If a person is an income tax assessee or sales tax assessee, or his spouse is a Class I or II officer in the service of the Government, such persons would be disqualified from contesting the said election. Even if the petitioner had not raised any objections at the time of scrutiny of the nomination papers, it will not preclude him from raising a ground about his disqualification, in the election petition. If such a material ground is raised, the Election Tribunal is bound to consider the same since sub-section 1(a) of Section 23 of the Act specifically provides for making disqualification as a ground in the election petition. Non-raising of a ground regarding disqualification as per the note found in the gazette notification does not amount to either acquiescence or waiver.
If the petitioner was able to furnish copies of income tax and sales tax assessment, his case would have been further strengthened. However, non-production of this assessment is not at all fatal to the case of the petitioner. In view of 1st respondent not stepping into the witness box, an adverse inference will have to be drawn against the 1st respondent. The initial burden cast on the petitioner has been effectively discharged and the onus which had shifted on the 1st respondent has not been explained in any manner. Election Tribunal is not justified in holding that the 1st respondent was not an income tax or sales tax assessee when he filed nomination papers. Non-verification of the pleading would not be fatal in the present case. The approach adopted by the trial Court is improper and incorrect. Appeal allowed. Election of 1st Respondent set aside.
1. The present appeal is filed under Section 27 of the Karnataka Municipalities Act, 1964, (hereinafter referred to as the Act, for brevity) challenging the dismissal of election petition in E.P. No.1/13 which was pending on the file of the court of Senior Civil Judge-cum-Election Tribunal, Karkala.
2. Appellant was the petitioner before the Election Tribunal. He had filed an election petition under Section 21 of the Act challenging the election of the 1st respondent herein as Councillor from Ward No. 21 of Moodabidri Town, Dakshina Kannada District.
3. The facts leading to the filing of the election petition and the present appeal before this court by the appellant are as follows:
a) Moodabidri Town of Dakshina Kannada District has a town municipal council. Elections were held to the Municipal Council on 7.3.2013 and the appellant had contested as a candidate from backward class from Ward No. 21 of Moodabidri Town. Respondents 1 to 3 had also contested from the same ward.
b) In the election held on 7.3.2013, the 1st respondent-Anil C.Lobo has been declared elected as the successful candidate to Ward No. 21. A total of 302 votes had been cast in his favour and 175 votes had been cast in favour of the appellant and 11 votes in favour of the 2nd respondent and 107 votes had been cast in favour of the 3rd respondent, respectively. After declaration of results, appellant chose to file a petition under Section 21 of the Act before the Election Tribunal challenging the election of the 1st respondent-Anil Lobo on various grounds.
c) According to him, Anil Lobo is a person belonging to backward class under category ‘B’, being a Christian, but he was ineligible to contest the elections, being an income tax assessee as well as a sales tax assessee as on the date of filing of nomination paper. The appellant had contested the elections also as a member of backward class, being a Jain. According to the appellant, the 1st respondent had suppressed the material fact of being a tax assessee.
d) The election petition was contested by the 1st respondent – Anil Lobo only. He had called upon the petitioner to prove the contents of the petition strictly and denied all material averments. According to him, the very petition was not maintainable since Rs. 100/- fee which ought to have been paid to the Government as per Rule 69 of the Karnataka Municipalities Rules was not paid on the date of filing of the election petition and it was not personally presented by the petitioner before the Tribunal. According to him, the election petition was not properly verified in accordance with the mandate of Rules 14 to 16 of Rule VI, C.P.C. According to him, the petitioner had not delivered copies of the documents to him and therefore the election petition was defective. He was stated to be very much qualified to contest the elections from the reserved category and that he has been declared as the successful candidate having secured the highest number of votes and his election cannot be called in question. According to the 1st respondent, the petitioner himself was not qualified to contest under ‘B’ category since he was also an income tax assesee and had lands in excess of the ceiling limit. With these pleadings, he had requested the court to dismiss the election petition.
4. The petitioner-K. Krishnaraj Hegde has been examined as PW1 and 14 exhibits have been got marked on his behalf. The 1st respondent has not chosen to examine himself as a witness; but has examined 5 witnesses on his behalf to drive home the point that Rs. 100/- was not paid when the election petition was presented, but was paid at a later date and therefore it was a curable defect. Four exhibits have been got marked to drive home the fact that the petitioner himself was a tax assessee and had held lands in excess of the ceiling.
5. Ultimately the learned judge has chosen to frame the f
