Amendment of election petition in respect of material pleadings after other side took objections for lack of material pleadings - not maintainable. ; All contested candidates are necessary parties to the election petition =
Amendment of election petition in respect of material pleadings after other side took objections for lack of material pleadings - not maintainable.
It is only after two months of the first respondent filing I.A. No.4 of 2019 that the petitioner herein moved an application in I.A.No.1 of 2020 for amendment of the pleadings by incorporating one paragraph, after the existing para 30 of the election petition. To be precise I.A. No.1 of 2020 was filed on 11.02.2020 seeking to incorporate one paragaraph as para 30(a) in the original election petition. This proposed additional paragraph comprised of two parts, one relating the alleged corrupt practices and the other relating to the requirements of section 101 (b) of the Act. By the order impugned herein, the High Court allowed the amendment to the extent of first part of para 30(a), but rejected the amendment as regards the second part which relates to the ingredients of section 101 (b). As rightly pointed out by the High Court, the election petitioner cannot be allowed to suddenly wake up to the reality of lack of pleading of material facts, relating tohis rights in terms of section 101 after more than 18 months of the filing of the election petition. The same is also barred by limitation. Therefore, the High Court did the right thing in disallowing the second part of the proposed para 30 (a) and in striking off prayer (c).
All contested candidates are necessary parties to the election petition =
“in the present case, for one seat, there were five candidates and it would be impossible to predict or guess in whose favour the voters would have voted if they were aware that the elected candidate was disqualified to contest election or if he was not permitted to contest the election by rejecting his nomination paper on the ground of disqualification to contest the election and what would have been the voting pattern.”
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NONREPORTABLE
IN THE SUPEME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NOS.67876788 OF 2020
SRI MUNIRAJU GOWDA P.M. … PETITIONER(S)
VERSUS
SRI MUNIRATHNA & ORS. …RESPONDENT(S)
O R D E R
V. RAMASUBRAMANIAN, J.
1. Challenging the interim orders passed in two interlocutory
applications, one seeking amendment of pleadings and the other
for striking out prayer (c) in the main election petition, the
election petitioner has come up with these Special Leave
Petitions.
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2. We have heard learned counsel appearing for the parties.
3. In the elections held to the Karnataka State Legislative
Assembly on 28.05.2018, the first respondent was declared
elected from Constituency No.154, namely Rajarajeshwari Nagar.
4. The petitioner herein challenged the election of the first
respondent by way of an election petition in E.P.No.11 of 2018
before the High Court of Karnataka. The election petition was
filed on 13.07.2018. After service of notice, the returned
candidate who is the first respondent herein filed three
interlocutory applications in I.A. Nos. 2, 3 and 4 of 2019, praying
respectively for:
(i) Striking out the pleadings in paragraphs 830;
(ii) Rejection of the election petition on the ground of lack
of substratum; and
(iii) Striking out prayer (c) in the election petition.
5. The petitioner herein (the election petitioner) also filed two
interlocutory applications in I.A. Nos. 1 & 4 of 2020, praying for:
(i) Amendment of the election petition by incorporating
additional pleadings; and
(ii) Leave to produce copies of 8 documents.
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6. By a common order passed on 20.03.2020, the High Court
(i) partly allowed I.A.No.1 of 2020 filed by the election
Petitioner;
(ii) fully allowed I.A. No.4 of 2020 filed by the election
petitioner ;
(iii) rejected I.A. Nos. 2 and 3 of 2019 filed by the first
respondent; and
(iv) allowed I.A. No.4 of 2019 filed by the first respondent
for striking out prayer (c) in the election petition.
7. Aggrieved by that portion of the order of the High Court:
(i) Allowing I.A. No.4 of 2019 filed by the returned
candidate namely the first respondent and striking out
prayer (c) in the election petition; and
(ii) Partially disallowing I.A. No.1 of 2020 filed by himself
for introducing additional pleadings with reference to
the substratum contemplated in section 101(b) of the
Act,
the election petitioner has come up with the above Special Leave
Petitions.
8. The order impugned in the Special Leave Petitions is dated
20.03.2020 but certain events that happened during the
pendency of the election petition, have now changed the entire
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complexion of the game. These events are as follows:
(i) The first respondent herein along with 12 other elected
members submitted their resignations from the
membership of the house during the period from
01.07.2019 to 11.07.2019;
(ii) On the ground that the Speaker failed to take any
decision on the resignation of those legislators
including the first respondent herein, a few of them
filed a writ petition in W.P.(C) No.872 of 2019 in this
Court. This Court passed an order on 11.07.2019 in
the said writ petition directing the Speaker to take a
decision qua the resignations and to place the decision
before this Court;
(iii) In the meantime, petitions for disqualification were
moved before the Speaker of the Assembly against
those 13 legislators including the first respondent
herein;
(iv) In view of the said development, this Court passed a
couple of interim orders on 12.07.2019 and
17.07.2019;
(v) On 23.07.2019 a trust vote was taken up for
consideration and the resigned members including the
first respondent did not attend. Thereafter, the
Speaker passed 5 independent orders on 25.07.2019
and 28.07.2019 on the various petitions for
disqualification. By these orders, the Speaker rejected
the resignation of the members and disqualified all of
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them till the end of the term of the 15th State legislative
Assembly;
(vi) Challenging the said orders of the Speaker, 9 writ
petitions came to be filed on the file of this Court, one
of them being W.P.(C) No.998 of 2019. In the said writ
petition, there were 6 petitioners, one among them
being the first respondent herein. All the 9 writ
petitions were disposed of by this Court by a judgment
dated 13.11.2019. By the said judgment, this Court
upheld the order of the Speaker on the disqualification
petitions but with a slight modification. The
modification was to the effect that a member
disqualified under the 10th Schedule shall be subjected
to sanctions provided under Articles 75(1B), 164(1B)
and 361B of the Constitution which bars the
disqualified member from being appointed as a
Minister or from holding any remunerative political
post from the date of disqualification till the date on
which the term of his office would expire or if he is reelected, whichever is earlier.
9. As a result of the above judgment of this Court, the first
respondent ceased to be a member of the 15th Karnataka State
Assembly. In the judgment dated 13.11.2019, this Court made it
clear that the disqualification would relate back to the date when
the act of defection took place. This Court also held that a
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pending or impending disqualification action does not become
infructuous by the submission of a letter of resignation, if the act
of disqualification had arisen prior to the letter of resignation.
10. In the light of the events that happened as aforesaid, during
the pendency of the election petition, let us now see the reliefs
sought by the election petitioner before the High Court of
Karnataka in E.P. No.11 of 2018. The reliefs sought were as
follows:
“Wherefore, the petitioner most respectfully pray that
this Hon’ble Court be pleased to –
a) Set aside Election of Respondent No. 1 to the 15th
Karnataka Legislative Assembly from Constituency No.
154, Rajarajeshwarinagar;
b) To declare the return candidate Respondent No. 1 as
void of corrupt electoral practice U/Sec. 123 of R.P Act
1950;
c) To declare the petitioner as duly elected to the seat of
Karnataka Legislative Assembly Rajarajeshwarinagar
Constituency No. 154;
d) Pass such other order/s as this Hon’ble Court deems
fit to grant, in the interest of justice and equity;
e) Cost of the proceedings”
11. There can be no quarrel about the fact that as on date, the
grant of relief to the petitioner herein in terms of prayer (a) is only
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academic. This is for the reason that instead of the High Court
setting aside the election of the first respondent, the Speaker
himself has disqualified the first respondent, albeit on a different
ground and the disqualification has been upheld by this Court
during the pendency of the election petition.
12. However, the contention of Mr. Shekhar Naphade, learned
senior counsel for the petitioner is that the petitioner can still
pursue prayer (b) and in the event of his success, he may be
entitled to press for the grant of relief in terms of prayer (c).
Technically, the learned Senior Counsel is right, since the
involvement of a person in corrupt practices, in an election, does
not get washed away, by his subsequent resignation.
13. But there is something that stares at the face. It appears
that when the results were announced, the petitioner was
declared to have secured 82,572 votes, while the first respondent
was declared to have secured 1,08,064 votes. Therefore, in terms
of Section 101 of the Representation of the People Act, 1951 (for
short the ‘Act’) the election petitioner should satisfy:
(i) that he received a majority of the valid votes; or
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(ii) that but for the votes obtained by the returned
candidate by corrupt practices, he would have
obtained a majority of the valid votes.
14. As observed by the High Court, pleadings necessary for the
High Court to form an opinion in terms of Clause (a) or Clause (b)
of Section 101 of the Act were not there in the election petition.
Under Section 83(1)(a) of the Act, an election petition should
contain a concise statement of material facts. What constitutes
“material facts” would depend upon the ground on which the
election of a returned candidate is challenged. Several grounds
are enumerated in Section 100(1) of the Act and pleading of
material facts corelatable to the grounds set out in Section
100(1), forms the bedrock of an election petition.
15. In the election petition, as it was originally filed, there was
no averment of material facts traceable to the ingredients
incorporated in Clauses (a) and (b) of Section 101. This is why
the first respondent herein made the first strike by moving an
application in I.A.No.4 of 2019 for striking out prayer (c).
Actually, I.A.No.4 of 2019 was filed by the first respondent herein
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on 11.10.2019, pointing out that there are no necessary
pleadings with reference to Section 101.
16. It is only after two months of the first respondent filing I.A.
No.4 of 2019 that the petitioner herein moved an application in
I.A.No.1 of 2020 for amendment of the pleadings by incorporating
one paragraph, after the existing para 30 of the election petition.
To be precise I.A. No.1 of 2020 was filed on 11.02.2020 seeking
to incorporate one paragaraph as para 30(a) in the original
election petition. This proposed additional paragraph comprised
of two parts, one relating the alleged corrupt practices and the
other relating to the requirements of section 101 (b) of the Act. By
the order impugned herein, the High Court allowed the
amendment to the extent of first part of para 30(a), but rejected
the amendment as regards the second part which relates to the
ingredients of section 101 (b). As rightly pointed out by the High
Court, the election petitioner cannot be allowed to suddenly wake
up to the reality of lack of pleading of material facts, relating to
his rights in terms of section 101 after more than 18 months of
the filing of the election petition. The same is also barred by
limitation. Therefore, the High Court did the right thing in
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disallowing the second part of the proposed para 30 (a) and in
striking off prayer (c).
17. In any case, the second part of paragraph 30 (a) sought to
be incorporated by way of amendment, does not satisfy the
requirement of pleading of material facts, necessary for the High
Court to form an opinion in terms of Clause (a) or (b) of Section
101.
18. Once it is found that neither the original election petition
nor the amended election petition contains any pleading of
material facts which would enable the High Court to form an
opinion in terms of Section 101, there was no alternative for the
High Court but to strike off prayer (c).
19. There is one more reason why the petitioner cannot
succeed. In the elections in question, there were 14 candidates in
the fray, including the petitioner herein and the first respondent.
In Viswanath Reddy vs. Konappa Rudrappa Nadgouda1
, the
Constitution Bench of this Court treated the votes polled in
favour of the returned candidate as thrown away votes, on the
1AIR 1969 SC 604
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ground that he was disqualified from contesting and that the
election petitioner was entitled to be declared elected, in view of
the fact that there was no other contesting candidate. But the
Constitution Bench cautioned that the rule for the exclusion of
the votes secured by corrupt practices by the returned candidate
in the computation of the total votes and the consequential
declaration of the candidate who secured the next highest
number of votes as duly elected, can be applied only when there
are just two candidates at an election.
20. The ratio in Viswanath Reddy (supra) was followed in
Thiru John vs. Returning Officer & Others.2
. Though this
case concerned election to the Rajya Sabha through single
transferable votes, this Court observed in this case that it would
be extremely difficult if not impossible, to predicate what the
voting pattern would have been, if the electors knew at the time
of election that one was disqualified. The Court pointed out that
the question as to how many of the voters would have cast their
votes in favour of other continuing candidates and in what
2(1977) 3 SCC 540
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preferential order, remained a question in the realm of
speculation and unpredictability.
21. In D.K. Sharma vs. Ram Sharan Yadav and Others3
,
this Court followed the dictum in Vishwanatha Reddy (supra) to
the effect that where there are more than two candidates in the
field, it is not possible to apply the same ratio as could be applied
when there are only two candidates. This principle was also
reiterated in Prakash Khandre vs. Dr. Vijay Kumar Khandre
and Others4
, where this Court pointed out “in the present
case, for one seat, there were five candidates and it would
be impossible to predict or guess in whose favour the voters
would have voted if they were aware that the elected
candidate was disqualified to contest election or if he was
not permitted to contest the election by rejecting his
nomination paper on the ground of disqualification to
contest the election and what would have been the voting
pattern.”
3(1993) Supp. (2) SCC 117
4(2002) 5 SCC 568
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22. Therefore, apart from the fact that in the election petition,
there were no pleadings of material facts corelatable to the
ingredients of clause (a) or (b) of Section 101 of the Act, to
sustain prayer (c), even legally the High Court could not have
granted prayer (c) in view of the fact that there were 14
candidates in the fray.
23. In view of the above, the Order of the High Court does not
call for any interference. Hence these Special Leave Petitions are
dismissed. No costs.
………………………………..CJI
(S.A. Bobde)
…………………………………J.
(A.S. Bopanna)
………………………………….J.
(V. Ramasubramanian)
New Delhi
October 13, 2020
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