D. M. JAYAVEERAIAH Vs. GURUSWAMY

JUDGEMENT

(1.) The petitioner who had filed an election petition in Elec.C.No.1/2022 before the Senior Civil Judge, Itinerary Court at Jagalur is aggrieved of the impugned order dtd. 8/9/2022 passed by the Election Tribunal dismissing the election petition holding that no grounds are made for declaring the election of respondent No.1 as null and void.

(2.) Learned counsel for the petitioner submits that respondent No.1 herein filed an application I.A.No.5 in the Election Petition under Sec. 19 of the Karnataka Grama Swaraj and Panchayat Raj Act, 1993 r/w Sec. 151 of the Code of Civil Procedure seeking dismissal of the election petition as not maintainable. Learned counsel submits that there are atleast two grounds raised in the election petition namely that the 1st respondent herein did not disclose the criminal case registered against him in Special Case (Lokayuktha)No.6/2016, which was pending consideration before the District Court at Davanagere. It was also contended that the 1st respondent, who had a commercial establishment and having Tin No.29170659570 was alleged to have being a defaulter in payment of commercial taxes. The learned counsel would therefore submit that the election petition could not have been dismissed on the ground of maintainability, since it could not have been contended by respondent No.1 that the election petition itself is not maintainable. There is no reasons forthcoming from the impugned order as to why the election petition is not maintainable in accordance with law. On the other hand, while considering IA filed at the hands of the respondent No.1 the election tribunal seems to have gone into the merits of the matter without permitting the parties to adduce evidence. Even otherwise, it is submitted that the opinion of the Election Tribunal that the allegation made by the petitioner in the election petition regarding non-disclosure of a criminal case along with the nomination papers filed by a candidate does not amount to a corrupt practice is contrary to the opinion of the Hon'ble Supreme Court. In this regard, learned counsel draws the attention of this Court to a decision of the Apex Court in the case of KRISHNAMOORTHY /VS./SIVAKUMAR AND OTHERS - (2015) 3 SCC 467, wherein it was held that non- disclosure of criminal antecedents of candidate in entirety and in full detail, especially pertaining to serious crimes or those relating to corruption or moral turpitude, creates impediment in free exercise of electoral rights, hence constitutes corrupt practice of undue influence. Nevertheless the learned counsel would submit that the dismissal of the election petition at an interim stage on Interlocutory Application filed at the hands of the respondent No.1 cannot be sustained. Learned counsel would therefore submit that the matter has to be considered by the election tribunal in accordance with law.

(3.) In view of the judgment cited by the learned counsel for the petitioner, learned counsel for the respondent No.1 submits that the matter may be remitted back to the election tribunal so that opportunity of hearing will be afforded not only to the writ petitioners but also to the respondent No.1 herein. The learned counsel would also submit that the question as to whether non-disclosure of the criminal antecedents would amount to corrupt practice or not should be kept open.