Karnataka High Court Sets Aside Election Of Congress MLA SN Subbareddy But Rejects BJP Leader's Claim To Be Declared Winner

The Karnataka High Court has set aside the election of Congress MLA SN Subbareddy elected from the Bagepalli constituency in the 2023 legislative assembly polls, over allegations of malpractice raised by the BJP's C Muniraju.

The court however partly allowed Muniraju's election petition while refusing to declare him as the winning candidate.

After examining various issues raised in the petition, Justice MGS Kamal in his order held:

"Election of Respondent No.1 to the 16th Karnataka Legislative Assembly from 140- Bagepalli Assembly Constituency is set aside. Relief of Declaration sought by the petitioner to declare him as duly elected to fill the seat of 16th Karnataka Legislative Assembly from 140- Bagepalli Assembly Constituency is rejected. Registry shall communicate this order to the Speaker of the State Legislature and shall also forward certified copy to the Election Commissioner as required under Section 103 of the R.P. Act, 1951 read with Rule 19 of Election Petitions Procedure Rules, Karnataka"

The petitioner alleged that the Subbareddy in his Form 26 Affidavit filed along with his nomination papers on 20.04.2023 had not disclosed up-to-date details of all his assets and liabilities including that of his wife and dependant daughter. It was alleged that he had suppressed material information regarding various business entities registered in his name and in the name of his wife, and had not disclosed details of all the properties owned by him and his wife and dependant daughter.

It was alleged non-disclosure of the assets and liabilities of the Respondent No1, his wife and the dependant daughter has resulted in interference with the free exercise of electoral right and thereby Respondent No.1 has committed corrupt practice as contemplated under Section 123(2) of the Representation of People Act.

On the contention that Subbareddy in Form 26 Affidavit had disclosed Savings Bank account balance of himself, his wife and daughter only till 31.03.2023 though Form 26 Affidavit was filed on 20.04.2023 and there was no disclosure of savings account balance for the period of 20 days, the court said:

"Admittedly, the Savings Bank accounts balance of Respondent No.1, his wife and daughter have been disclosed in Ex.P4 upto 31.03.2023. Petitioner has neither pleaded nor brought on record any material to show that there was any addition to the Savings Bank accounts balance of Respondent No.1 and his wife between 31.03.2023 and the date of filing of nomination on 20.04.2023 i.e., for a period of 20 days. As such, this Court do not see any substantiality in this allegation of non-disclosure of Saving Bank accounts balance. Petitioner has thus failed to prove this allegation. Respondent No.1 has proved substantial compliance in this regard".

Muniraju had further alleged that the Subbareddy holds total of nine Goods and Service Tax Identification Numbers (GSTIN), out of which five GSTINs are shown to be 'active' and remaining four are shown as inactive. The Five active GSTINs are for (1) R and R Bar and Restaurant, (2) Bhagini Residency, (3) Srinivasa Wines, (4) Bhagini Palace, (5) Wholesale Liquor Proprietorship Concern.

The court said that the requirement of disclosure either of business entities/concerns or of corresponding Current Account balance in Sl.No.(7)A(ii) of Form 26 Affidavit invariably pertains to and is relatable to business entities/concerns–(1) R and R Bar and Restaurant, (2) Bhagini Residency, (3) Srinivasa Wines, (4) Bhagini Palace, (5) Wholesale Liquor proprietorship concern belonging to Respondent No.1 and Mini Bar Restaurant belonging to his wife.

It noted that Sl.No.(7)A(iii) in Form 26 affidavit requires disclosure of details of investments in Bonds, Debentures, Share and Units in companies, mutual funds "and others" and "the amount" would require Subbareddy to give the details of his business investments in respect of the business concerns carried on under the name of the 5 entities and the Mini Bar Restaurant belonging to his wife.

"Admittedly there is neither disclosure of aforementioned business entities/concerns nor the corresponding current accounts balance amounts pertaining to said business entities/concerns in Sl.No.(7)A(ii) as well as in Sl.No.(7)A(iii) of Form 26 Affidavit. Another crucial aspect of the matter is that at Sl.No.(9)(a)(b) and (9A) of Form 26 Affidavit Respondent No.1 has declared details of his profession/occupation and sources of his income and his wife as that of business. The said sources of income are admittedly related to aforesaid business entities/ concerns, details of which have not been disclosed/declared by him. Petitioner has thus proved the non-compliance of this requirement and the Respondent No.1 has failed to prove any compliance much less substantial compliance of this requirement," the court said.

On Muniraju's contention that he be declared as the winning candidate, the court said that the settled position of law consistently followed and affirmed by Supreme Court is that the declaration of candidates securing next highest valid votes to be elected is permissible in the scenario when there are only two candidates.

"Such course of action may not be permissible in the absence of material pleading and proof of disqualified candidate securing votes by corrupt practice and in the case of there being more than two candidate for one seat...Admittedly apart from petitioner and the Respondent No.1 there are 13 other candidates who have contested the election to 140-Bagepalli Assembly Constituency, who are arrayed as Respondent Nos.2 to 14 herein. There is no specific material averments as to how many votes more than 19,179 have been secured by the Respondent No.1 by corrupt practice. Therefore, it is not possible to presume and form an opinion that all those votes more than 19,179 allegedly obtained by corrupt practice by respondent No.1 would have gone in favour of the petitioner".

The plea was partly allowed.

Case title: SRI. C MUNIRAJU v/s SRI. S N SUBBAREDDY and OTHERS

ELECTION PETITION No.4 OF 2023

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