The Supreme Court has issued notice to a Karnataka Congress MLA on a plea challenging his election from Bhalki Constituency in Bidar District, on account of being involved in corrupt practices such as distribution of wall clocks and monies, false affidavits, an improperly filled nomination form.
The notice was issued upon a plea filed by D.K.Sidram, a BJP candidate, who also urged to place him as MLA from Bhalki Constituency by removing Eshwar Bhimanna Khandare, the Congress MLA, from the said constituency.
The bench of Justice D.Y. Chandrachud and J. Surya Kant issued notice on 13.04.2022 on the said plea. Senior Advocate Siddharth Dave appeared for BJP candidate D.K. Sidram.
Dismissing the election petition, the Karnataka high Court was not satisfied with the contentions of counsel Sidram and held that it is difficult to digest the suspicion raised by Sidram related to enormous delay in transportation of EVMs and bogus voting was done by tampering the same EVMs at the time when there is abnormally high polling during the last hour.
Justice Krishna Dixit opined that ordinarily in general elections, rural masses throng the polling stations at the fag end, is a matter of judicial cognizance. the Election Commission of India (ECI) had since long issued several orders regulating such a scenario; however, such incidents that per se does not raise any suspicion.
Justice Dixit refuted the vague allegations made on behalf of Sidram that EVMs have been tampered, relied upon judgment of Apex Court in Dr. Subramanian Swamy v. ECI (2013) 10 SCC 500, wherein the ECI adopted VVPAT to the EVMs which made them untamperable.
The Karnataka High Court also noticed that it is only the violation of Section 77(3) which is a corrupt practice in terms of Section 123(6) of the Act and not the violation of sub-sections (1) & (2) of Section 77.
Such election petition filed by BJP candidate D.K. Sidram under Section 81 of Representation of Peoples Act 1951 and under Rule 4 of Karnataka Election Petition.
The brief facts of the case are that the ECI issued notification dated 27.03.2018 pertaining to general elections in Karnataka State Legislative Assembly that th petitioner contested as a candidate from BJP, whereas Eshwar Bhimanna Khandare, cabinet minister contested as a candidate of Indian National Congress and the second respondent Prakash Khandre was a candidate from Janata Dal (S). The scrutiny of nomination papers was done on 25.4.2018 and the list of contestants was published on 27.4.2018.
The number of votes received by petitioner were 64,235 in toto, on the other hand , total votes of Eshwar, Respondent no. 1 were 84,673. D.K. Sidram, in his petition, demanded invalidation of election of Eshwar Bhimanna Khandare and to elect him on his place.
The perception of the High Court towards section 83(1)(a) of RP Act, 1951 was that law mandates that not only material facts to be pleaded but also material particulars, if someone challenges election on grounds of corrupt practise, and to succeed in the claim , the Petitioner must prove that in absence of material fact, whether relief claimed by him can be granted to him or not.
The other aspect, the High Court looked into and observed is that if petitioner Sidram alleges that there was improper acceptance of any nomination paper Section 100(1)(d)(ii) or that there was non-compliance with the provisions of the Constitution, Act or any Rules, he has to plead and prove that the result of election insofar as it concerns Eshwar has been materially affected by such improper acceptance or non-compliance with any statutory provision.
The High Court found no such deficiency in affidavit was pointed out by anyone, due to which no direction could have been given to returning officer to rectify any deficiency, if any. The power to reject nomination paper by returning officer must be exercised sparingly.
For the petitioner, counsel Udaya contended the candidate Eshwar had furnished wrong information and suppressed material facts in Form-26, also not filed IT returns. Further it is falsely claimed to be not an Income Tax Assesse as the Chairman of the Shantivardhak Educational Society, he has not shown the income received therefrom.
There has been a grave violation of Section 33(A)(1) & (2) of the 1951 Act r/w Rule 4-A of the Conduct of Election Rules, 1961 r/w sec. 125A, contended the counsel for the petitioner.
On the other hand, the counsel for Eshwar made his submissions that the petitioner not adduced any iota of evidence to show that Eshwar is not an Income Tax assessee. Further, he provided information that land exclusively belonged to his spouse and the same was mentioned.
The allegations against Eshwar were that he has misused official machinery, utilized services of ASHA workers, distributed wall clocks bearing his name & photograph, handed money & goodies to the voters, distributed bogus ID Cards, issued Hakku Patraas to the voters and has incurred election expenditure in excess of statutory ceiling limit.
The Karnataka High Court relied upon the Supreme Court judgment of Junwar Nripendra Bahadur Singh v. Jai Ram Verma ,1977 4 SCC 154,wherein this court held that finality of the electoral roll cannot be challenged in an election petition even if certain irregularities had taken place in the preparation of the electoral roll or if subsequent disqualification had taken place and the electoral roll had on that score not been corrected before the last hour of making nominations.