Nandiesha Reddy vs Kavitha Mahesh

2. The Returned Candidate assails aforesaid orders in the present Special Leave Petitions.

4. Short facts giving rise to the present appeals are that the Election Commission of India on 16th of April, 2008 notified its intention to hold General election to the Karnataka State 3 Legislative Assembly and announced the election schedule. According to the schedule, the last date for submission of the nomination was 23rd of April, 2008 whereas the scrutiny of the nomination papers was to be undertaken on 24th of April, 2008. The date of election fixed was 10th of May, 2008. Kavitha Mahesh (hereinafter referred to as `the Election Petitioner') was an electorate in the combined Varthur Assembly Constituency prior to de-limitation. After de- limitation the said constituency has been split into three constituencies, namely (i) Mahadevapura (ii) C.V.Raman Nagar and (iii) K.R.Pura. After the de-limitation, the Election Petitioner's name appeared in the electoral roll of C.V.Ramana Nagar Constituency. In order to contest the election from K.R.Pura Assembly Constituency, according to the Election Petitioner, on 19th of April, 2008 she obtained a set of nomination forms from the Returning Officer. It is her case that on 23rd of April, 2008 at about 2.00 P.M. she delivered the 4 nomination papers together with all annexures to the Returning Officer and requested him to furnish the latest electoral roll of K.R.Pura Assembly Constituency in order to extract the new part number and serial number of the proposers who had signed on the nomination papers for incorporating the same in the appropriate column against their respective names. It is alleged that the Returning Officer instead of furnishing the latest electoral roll of K.R.Pura Assembly Constituency, asked the Election Petitioner to approach the Revenue Office to obtain those details. It has specifically been averred by the Election Petitioner that she went to the Revenue Office but could not get those details from the Revenue Officer and therefore, she went to file the nomination papers, presented the same before the Returning Officer but it was not received. It is her allegation that, thereafter, she attempted to give a handwritten representation to the Returning Officer but the same was also not accepted. Hence she left the place without 5 filing the nomination. It is also her allegation that on 28th of April, 2008, she filed a complaint in this regard before the Chief Election Commissioner.

5. The election was held on 10th of May, 2008 and its result was published on 27th of May, 2008 in which the Returned Candidate was declared elected from K.R.Pura Assembly Constituency. This was challenged by the Election Petitioner in an election petition before the Karnataka High Court. The Election of the Returned Candidate was sought to be declared null and void on the ground of illegal rejection of nomination paper at threshold by the Returning Officer.

6. As usual, the Returned Candidate filed applications for striking out various paragraphs from the election petition. This was registered as Misc. Civil No. 15204 of 2009. Another application for dismissal of the election petition was filed which was registered as Misc. Civil No. 15772 of 2009. In this application it 6 was pointed out that as the Election Petitioner was not a candidate set up by any recognised political party, for valid nomination according to first proviso of Section 33 (1) of the Act the nomination paper was required to be subscribed by ten electors of the constituency. It was further pointed out that the Election Petitioner shall not be deemed to be duly nominated for election from the constituency as she had not made any deposit as required under Section 34 of the Act. The Returned Candidate further alleged non- compliance of Section 81(3) of the Act and contended that he has not been furnished with the true attested copy of the election petition and its annexures as presented to the Court. The Returned Candidate also sought dismissal of the election petition on the ground that the same did not contain concise statement of the material facts on which the Election Petitioner relied and the material facts averred did not disclose any cause of action for the relief sought for. 7

20. Mrs. Mahesh has taken us through the averments made in the election petition including the paragraphs which we have reproduced in the preceding paragraphs of this judgment and contends that the election petition does contain a concise statement of material facts on which 28 she had relied seeking the relief of declaration of the election of the Returned Candidate to be void.

22. Bearing in mind the aforesaid legal position when we proceed to consider the facts of the present case we are of the opinion that the Election Petitioner had disclosed material facts and the matter is fit to go for trial. Whether those material facts are true or false is a matter of trial. As regards authorities of this Court in the case of Anil Vasudev Salgaonkar (supra) and Ram Sukh (supra) we are of the opinion that the same do not lend support to the contention of the appellant. In both the cases this Court on fact came to the conclusion that the election petition did not contain statement of material facts and accordingly the election petitions were dismissed at the threshold. However, in the present case, on facts we have found that the election petition does contain 31 material facts and it is not liable to be dismissed at the threshold.

23. Any observation made by us in this judgment is for the purpose of disposal of these appeals and shall have no bearing at the final decision of the election petition.

24. Accordingly, we dismiss both the appeals with costs of Rs.25,000/- to be paid by the appellant to the respondent.

..................J (HARJIT SINGH BEDI) ......................J (CHANDRAMAULI KR. PRASAD) New Delhi, July 8, 2011.