Research › Search › Judgment

Karnataka High Court · body

2015 DIGILAW 269 (KAR)

K. Krishnaraj Hegde v. Anil C. Lobo

2015-03-10

A.V.CHANDRASHEKARA

body2015
Judgment 1. The present appeal is filed under Section 27 of the Karnataka Municipalities Act, 1964, (hereinafter referred to as the Act, for brevity) challenging the dismissal of election petition in E.P. No.1/13 which was pending on the file of the court of Senior Civil Judge-cum-Election Tribunal, Karkala. 2. Appellant was the petitioner before the Election Tribunal. He had filed an election petition under Section 21 of the Act challenging the election of the 1st respondent herein as Councillor from Ward No. 21 of Moodabidri Town, Dakshina Kannada District. 3. The facts leading to the filing of the election petition and the present appeal before this court by the appellant are as follows: a) Moodabidri Town of Dakshina Kannada District has a town municipal council. Elections were held to the Municipal Council on 7.3.2013 and the appellant had contested as a candidate from backward class from Ward No. 21 of Moodabidri Town. Respondents 1 to 3 had also contested from the same ward. b) In the election held on 7.3.2013, the 1st respondent-Anil C.Lobo has been declared elected as the successful candidate to Ward No. 21. A total of 302 votes had been cast in his favour and 175 votes had been cast in favour of the appellant and 11 votes in favour of the 2nd respondent and 107 votes had been cast in favour of the 3rd respondent, respectively. After declaration of results, appellant chose to file a petition under Section 21 of the Act before the Election Tribunal challenging the election of the 1st respondent-Anil Lobo on various grounds. c) According to him, Anil Lobo is a person belonging to backward class under category ‘B’, being a Christian, but he was ineligible to contest the elections, being an income tax assessee as well as a sales tax assessee as on the date of filing of nomination paper. The appellant had contested the elections also as a member of backward class, being a Jain. According to the appellant, the 1st respondent had suppressed the material fact of being a tax assessee. d) The election petition was contested by the 1st respondent – Anil Lobo only. He had called upon the petitioner to prove the contents of the petition strictly and denied all material averments. According to him, the very petition was not maintainable since Rs. d) The election petition was contested by the 1st respondent – Anil Lobo only. He had called upon the petitioner to prove the contents of the petition strictly and denied all material averments. According to him, the very petition was not maintainable since Rs. 100/- fee which ought to have been paid to the Government as per Rule 69 of the Karnataka Municipalities Rules was not paid on the date of filing of the election petition and it was not personally presented by the petitioner before the Tribunal. According to him, the election petition was not properly verified in accordance with the mandate of Rules 14 to 16 of Rule VI, C.P.C. According to him, the petitioner had not delivered copies of the documents to him and therefore the election petition was defective. He was stated to be very much qualified to contest the elections from the reserved category and that he has been declared as the successful candidate having secured the highest number of votes and his election cannot be called in question. According to the 1st respondent, the petitioner himself was not qualified to contest under ‘B’ category since he was also an income tax assesee and had lands in excess of the ceiling limit. With these pleadings, he had requested the court to dismiss the election petition. 4. The petitioner-K. Krishnaraj Hegde has been examined as PW1 and 14 exhibits have been got marked on his behalf. The 1st respondent has not chosen to examine himself as a witness; but has examined 5 witnesses on his behalf to drive home the point that Rs. 100/- was not paid when the election petition was presented, but was paid at a later date and therefore it was a curable defect. Four exhibits have been got marked to drive home the fact that the petitioner himself was a tax assessee and had held lands in excess of the ceiling. 5. Ultimately the learned judge has chosen to frame the following four points for consideration: 1) Whether the petitioner proves that the election of 1st respondent in the election held on 7.3.2013 to Ward No. 21 for Municipal Council to Moodabidri Town Municipality is void? 2) Whether the 1st respondent proves that there are incurable procedural errors committed by the petitioner in presenting? 3) Whether the petitioner is entitled for the relief claimed? 4) What order? 2) Whether the 1st respondent proves that there are incurable procedural errors committed by the petitioner in presenting? 3) Whether the petitioner is entitled for the relief claimed? 4) What order? On hearing the arguments and assessing the oral and documentary evidence, the learned judge has held point nos. (1) and (3) in the negative and point no. (2) partly in the affirmative and partly in the negative and ultimately the election petition has been dismissed by a considered order dated 11.11.2013. The learned judge has come to the conclusion that non-payment of Rs. 100/- to the Government at the time of presentation of the election petition was only a curable defect and it was cured after the petition was presented. Learned judge has further come to the conclusion that the materials placed on record are insufficient to prove that the 1st respondent-Anil Lobo was an income tax and sales tax assessee. Learned judge has further held that in spite of pointing out defects relating to the verification of the pleadings by the 1st respondent, the petitioner did not cure the same and therefore the election petition was defective and hence liable to be dismissed. 6. Learned judge of the Tribunal has relied on the decision rendered in the case of BALDEV SINGH v. SHINDER PAL SINGH (2007[1] SCC 341) to hold that verification must be strictly in accordance with Rules 14 and 15 of Order VI, C.P.C. Another decision in the case of REGU MAHESH v. RAJENDRA PRATHAP BHANJDEV AND ANOTHER reported in (AIR 2003 SCW 5569) has been relied upon by the learned judge to hold that filing of the election petition without proper verification would be a serious defect which would pave way for dismissal of the same. 7. Another decision of the Hon’ble apex court in the case of ISHWARDAS ROHANI v. ALOK MISHRA ([2012] 7 SCC 309) has been relied upon to hold that though the defect in relation to pleadings could be cured during the pendency of the proceedings and they have not been cured, and therefore the petition is not maintainable. 8. It is this final order dated 11.11.2013 which is called in question in this appeal on various grounds as set out in the appeal memo. 9. Heard learned counsel, Mr. G. Balakrishna Shastry for the appellant and Mr. Rajashekar appearing for the 1st respondent at length. 8. It is this final order dated 11.11.2013 which is called in question in this appeal on various grounds as set out in the appeal memo. 9. Heard learned counsel, Mr. G. Balakrishna Shastry for the appellant and Mr. Rajashekar appearing for the 1st respondent at length. Both the learned counsel have relied on various decisions in support of their respective contentions. 10. Learned counsel, Mr. Balakrishna Shastry representing the appellant has vehemently argued that non-verification of the pleadings cannot be construed as a fatal defect, more particularly when the election petition is filed to demonstrate that the respondent was not at all qualified to contest the election, being an income tax and sales tax assessee. It is his argument that no consequences are forthcoming in regard to the non-compliance of the provisions of Rules 14 and 15 of Order VI, C.C. and therefore they are only directory in nature and not mandatory. It is further argued that the initial burden cast upon the appellant to prove that the 1st respondent was income tax assessee and sales tax assessee, has been effectively discharged and the onus which had shifted on the 1st respondent has not been properly explained. He has vehemently argued that the learned judge should have drawn an adverse inference under Section 114(g) of the Evidence Act against the 1st respondent for not stepping into the witness box to substantiate his stand. It is argued that by not entering the witness box, the 1st respondent has denied the petitioner of cross-examining him and getting some useful admissions about the contents of Ex.P2- particulars furnished by the first respondent at the time of nomination and the contents of Ex.P3-information furnished by the sales tax officer, Moodbidri, relating to the various business carried on by the 1st respondent and the TAN relating to the business carried on by him. 11. Learned counsel, Mr. S. Rajashekar representing the 1st respondent has vehemently argued that courts do not elect candidates whom the constituency has not favoured. He has argued that the normal democratic process cannot be by-passed conveniently on the score of corrupt practices by the rival, except in exceptional cases where Section 101 of the Representation of People Act, 1951 stands fulfilled. S. Rajashekar representing the 1st respondent has vehemently argued that courts do not elect candidates whom the constituency has not favoured. He has argued that the normal democratic process cannot be by-passed conveniently on the score of corrupt practices by the rival, except in exceptional cases where Section 101 of the Representation of People Act, 1951 stands fulfilled. To this effect, he has relied on the decision of a Bench consisting of three Hon’ble Judge reported in AIR 1975 SC 349 between VATAL NAGARAJ v. R. DAYANAND SAGAR. He has further argued that sub-rule (2) of Rule 15 of Order VI, C.P.C. makes it mandatory that verification is required to be specified by reference to the numbered paragraphs of the pleading, what he verified of his own knowledge and what he verifies upon information received and believed to be true. According to him, the verification so done in the present case is not in accordance with the mandate of Rule 15(2) of Order VI, C.P.C. It is further argued that the defect in verification of affidavits is curable, but if the said defect, in spite of being pointed out is not cured, the consequence would be to reject the petition. 12. Learned counsel has further argued that there is a gulf of difference between the curable defect and curable defect continuing in the verification without any effort being made to cure the same. Therefore it is argued that the 1st respondent has pointed out serious defects in the verification of pleadings and inspite of the same, the petitioner did not take any steps and therefore rejection of the election petition on that ground is proper. He has relied on the decision in the case of REGU MAHESH (supra) as also another decision in the case of BALDEV SINGH (supra) to contend that the verification of an election petition must be strictly in terms of Rule 15 of Order VI, C.P.C., specifying statements to be true to his knowledge and statements to be true to his belief. 13. It is further argued that the factual averments made in the election petition cannot be both true to the knowledge and belief of the deponent. He has argued that the defect in the nomination paper was not raised when the nomination papers were considered by the election officer and therefore, the petitioner is estopped from pleading contrary to his own conduct. 14. He has argued that the defect in the nomination paper was not raised when the nomination papers were considered by the election officer and therefore, the petitioner is estopped from pleading contrary to his own conduct. 14. After going through the records and hearing the learned counsel for the parties, the following points arise for consideration by this court: 1) Whether the trial court is justified in holding that the petitioner has failed to prove that the 1st respondent – Anil Lobo was an income tax assessee and sales tax assessee when he filed the nomination papers? 2) Whether the rejection of the election petition on the ground of not curing the defects relating to verification of pleadings is justified? 3) Whether any interference is called for, and if so, to what extent? REASONS 15. Point no. (1): Section 21 of the Karnataka Municipalities Act, 1964, speaks about persons who can file an election petition before the Tribunal. It is relevant and the same is extracted below: 21. Election petitions – (1) No election of a councillor shall be called in question except by an election petition presented to the Election Tribunal within fifteen days from the date of the declaration of the result of the election. (2) An election petition calling in question any such election may be presented on one or more of the grounds specified in Section 23. (a) by any candidate at such election, or (b) by any voter of the ward concerned. (3) A petitioner shall join as respondents to his petition all the candidates at the election (4) An election petition – (a) shall contain a concise statement of the material facts on which the petitioner relies; (b) shall with sufficient particulars, set forth the ground or grounds on which the election is called on question; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings. Section 22 of the Act speaks about the reliefs which can be claimed by the petitioner in an election petition. The same is relevant and is reproduced below: 22. Section 22 of the Act speaks about the reliefs which can be claimed by the petitioner in an election petition. The same is relevant and is reproduced below: 22. Relief that may be claimed by the petitioner – (1) A petitioner may claim – (a) a declaration that the election of all or any of the returned candidates, is void, and (b) in addition thereto, a further declaration; that he himself or any other candidate has been duly elected. (2) The expression “returned candidate” means a candidate who has been declared as duly elected. 16. Section 23 of the Act provides for the grounds to declare an election held to the Town Municipal Council or City Municipal Council or Panchayat as null and void. Section 23(a) enables the Election Tribunal to set aside the result of the candidate if he was not qualified or was disqualified, but chosen as Councillor under the provisions of the Act. Admittedly in the present case, the election petition came to be filed by the petitioner-Krishnaraj Hegde relying on Section 23(a) of the Act. 17. It is useful to refer to the notification issued by the Housing and Urban Secretary, Government of Karnataka, on 16.10.1995 in HUD:636: MLR:95. It is a notification issued by the Under Secretary to the government, Department of Housing and Urban Development on 16.10.1995. The first page of the notification is relevant and is extracted below: HOUSING AND URBAN DEVELOPMENT SECRETARIAT NOTIFCATION NO. HUD 636 MLR 95, BANGALORE, DATED 16TH OCTOBER 1995 In exercise of powers conferred by sub-section (1) of section 2 of the Karnataka Municipal Corporation Act 1976, (Karnataka Act 14 of 1977) and clause (1A) of sub-section (i) of Section 2 of the Karnataka Municipalities Act, 1964 (Karnataka Act 22 of 1964), the Government of Karnataka hereby classify and notify the following classes of citizens for the purpose of reservation of seats and offices of Chair persons in City Corporations, City Municipal Councils, Town Municipal Councils and Town Panchayats, namely:- CATEGORY ‘A’ CATEGORY ‘B’ By Order and in the name of the Governor of Karnataka, Sd/- Under Secretary to Government, Housing and Urban Development Dept. (Establishment) 18. In page 15 of the said notification, Christians and Jains (Digambaras) would come under ‘B’ category of backward class. Admittedly the petitioner-Krishnaraj Hegde is a Jain (Digambara), and the 1st respondent is a Catholic Christian. (Establishment) 18. In page 15 of the said notification, Christians and Jains (Digambaras) would come under ‘B’ category of backward class. Admittedly the petitioner-Krishnaraj Hegde is a Jain (Digambara), and the 1st respondent is a Catholic Christian. But the note appended to the said notification in page 15 excludes certain persons from ‘B’ category from contesting an election to the Town Municipality or City Municipality. If a person is an income tax assessee or sales tax assessee, or his spouse is a Class I or II officer in the service of the Government, such person would be disqualified from contesting the said election. 19. The note appended to the said notification is in page 15 and the same is extracted below: Note:- No person falling under category ‘B’ shall be entitled to the benefit of reservation in the seats and offices of Mayor/Deputy Mayor of City Corporations President/Vice-President of Town Municipal Councils/City Municipals Councils/Town Panchayats if:- (i) He/She or either of his/her parents/guardian/ his or her spouses is a Class I or Class II Officer in the service of the Government or holds an equivalent post in public sector undertaking or an employee under a private employer and draws a salary which is not less than of a Class II Officer (Initial stage of the pay scale of Rs. 2050-3950); (ii) He/She or either of his/her parents/guardian/his or her spouse is an Income Tax Assessee/Wealth Tax Assessee; (iii) He/She or either of his/her parents/guardian/his/or her spouse is assessed to Sales Tax; (iv) He/She or either of his/her parents/guardian/his/or her spouse or both owns more than 8 hectares of rainfed or dry land or equivalent. Sd/- Under Secretary to Government, Housing and Urban Development Dept. (Establishment) 20. Colum no. (ii) in the note appended to the gazette notification clearly disqualifies a person belonging to category ‘B’ from contesting as a candidate for the post of councillor of a City Municipal/Town Municipal Council or Town Panchayath in Karnataka, if he or she is an income tax or sales tax assessee. It is the assertion of the petitioner both in the election petition as well as his oral evidence that the 1st respondent was an income tax and sales tax assessee as on the date of filing the nomination. It is the assertion of the petitioner both in the election petition as well as his oral evidence that the 1st respondent was an income tax and sales tax assessee as on the date of filing the nomination. What is held by the learned judge of the Election Tribunal is that the petitioner had not raised his little finger when the nomination of the 1st respondent was taken up for scrutiny by the returning officer. What is observed by the Election Tribunal is found in paragraph 21 of the impugned order and the same is as follows: ‘Petitioner has mainly relied on the nomination papers submitted by the 1st respondent in this regard. Evidence of petitioner clearly show that he was present and raised objections before the returning officer at the time of scrutiny of nomination papers. It is thus evident that after proper scrutiny by the competent authority, the nomination paper of the respondent was accepted. Acceptance of nomination paper was even impliedly accepted by the petitioner himself, since he has not Acceptance of nomination paper was even impliedly accepted by the petitioner himself, since he has not challenged the acceptance of nomination paper of the respondent by the election officer.’ 21. What is deposed by the petitioner is that he had raised objections orally at the time of scrutiny of the nomination paper of the 1st respondent. Of course no acceptable evidence is placed on record to substantiate the same. Even if the petitioner had not raised any objections at the time of scrutiny of the nomination papers, it will not preclude him from raising a ground about his disqualification, in the election petition. If such a material ground is raised, the Election Tribunal is bound to consider the same since sub-section 1 (a) of Section 23 of the Act specifically provides for making disqualification as a ground in the election petition. 22. Non-raising of a ground regarding disqualification as per the note found in the gazette notification does not amount to either acquiescence or waiver. Hence the finding of the Election Tribunal that the petitioner had impliedly accepted the nomination of the 1st respondent does not stand to reasoning. 23. Ex.P1 is the copy of the nomination paper of the 1st respondent filed before the election officer. The same has been furnished to PW1 by the assistant information officer under RTI Act. Hence the finding of the Election Tribunal that the petitioner had impliedly accepted the nomination of the 1st respondent does not stand to reasoning. 23. Ex.P1 is the copy of the nomination paper of the 1st respondent filed before the election officer. The same has been furnished to PW1 by the assistant information officer under RTI Act. Ex.P2 is the copy of the declaration filed by the 1st respondent before the election office. This is also furnished to PW1 by the information officer under RTI Act. This is one of the important documents giving vital information about the avocation of the 1st respondent, his annual income, various movable and immovable owned by him and his wife and income tax and sales tax particulars with PAN number. One of the columns in Ex.P2 is earmarked for mentioning the year in which the income tax with surcharge was paid and the PAN number. The PAN number is mentioned as “ABWPL4584D” and the year of payment of tax was 2011-12. Similarly the PAN number and the year of payment of sales tax is mentioned as “AAEF10896 Q” for the year 2011-12. 24. Column No. 9 of Ex.P2 speaks about the pay and the pay scale of the petitioner or his parents/guardians. As against this column, it is mentioned as “7,43,000/-.” There cannot be any pay or pay scale with “7,43,000/-.” Therefore this must be his annual income. It is ununderstandable as to why the word “rupees” is not mentioned just behind the figures “7,43,000/-.” He has certified that the information furnished in Ex.P2 are true and correct. 25. Ex.P3 is another information provided to PW1 by the Commercial Tax Officer-Moodabidri under the RTI Act relating to the various business carried on by the 1st respondent, Anil-Lobo, on the basis of the application filed by PW1 on 16.3.2013. 25. Ex.P3 is another information provided to PW1 by the Commercial Tax Officer-Moodabidri under the RTI Act relating to the various business carried on by the 1st respondent, Anil-Lobo, on the basis of the application filed by PW1 on 16.3.2013. The information so furnished is as follows: 1 M/s Hardware centre, Rehman complex, Vijayanagara, Moodabidri TIN-29820706885-C, The same is valid since 15.8.2006 Sri Anil Lobo is one of the partners 2 M/s Ansan Stores & Plywood .....complex, Near post office, Moodabidri TIN – 29691113532-C – valid from 29.12.2012 Sri Anil Lobo is one of the partners 3 M/s Velankani Enterprises Behind State Bank of India TIN - 29550755776-C Valid from 17.5.2007 and on 30.11.2009 Sri Anil Lobo is one of the partners 4 M/s Lobo Traders Modern Complex Main Road Moodabidri TIN – 29350322490-C Valid from 1.4.2005 Sri Anil Lobo is proprietor of this shop 5 M/s Lobo Builders Moodabidri Not Registered in this office Sri Anil Lobo is proprietor of this shop 26. Ex.P2 further speaks about the vehicles owned by Mr. Anil Lobo and the gold and silver items. He has a tempo bearing registration no. KA-19 B-7500, a Ford car bearing no. KA-47-M-5355, a motorcycle bearing no. KA-19-K-5255, a Pulsar motorcycle bearing no. KA-19-W-5355, a Splendor motorcycle bearing no. KA-19-M-4687 and a pick-up van bearing no. KA-19-AD-5355. He and his wife had owned gold and silver ornaments worth Rs. 3,00,000/- and Rs. 7,00,000/- respectively. He had availed loan of Rs. 1.40 crores from State Bank of India, Rs. 85,00,000/- from Canara Bank, Rs. 7,50,000/- from State Bank of Mysuru and Rs. 10,00,000/- + Rs. 3,50,000/- as car loans. 27. The learned judge has made relevant discussion in paragraphs 19 and 20 of the impugned order relating to income tax assessment and sales tax assessment. According to the learned judge of the Election Tribunal, the petition has not placed any cogent material before the court to hold that the 1st respondent – Anil Lobo is an assessee of income tax and sales tax. It is further held that Ex.P3 produced by the petitioner does not reflect the sales tax assessment of the 1st respondent. Whether such finding is justified, is the question. 28. Ex.P2 is the statement of declaration furnished by the 1st respondent to the election officer at the time of submitting his nomination papers. Admittedly he had held seven vehicles inclusive of three two-wheelers. Whether such finding is justified, is the question. 28. Ex.P2 is the statement of declaration furnished by the 1st respondent to the election officer at the time of submitting his nomination papers. Admittedly he had held seven vehicles inclusive of three two-wheelers. In Ex.P2, the 1st respondent has specifically mentioned the PAN number relating to his income tax and also shop PAN number of sales tax. It is his further case that he had paid income tax and sales tax during the year 2011-12, i.e. just the previous year of contesting the election. He has mentioned his annual income as Rs. 7,43,000/-. 29. PW1 has produced Ex.P3, information furnished by the Commercial Tax Officer, Moodabidri, relating to various business carried on by the 1st respondent at Moodabidri. It is stated that he (1st respondent) is a partner in M/s hardware Centre, Ansan Stores and Velankani Enterprises, Moodabidri. TIN number would be provided by the Commercial Tax Department insofar as sales tax assessment is concerned. The said TIN number pertaining to Hardware Centre and Ansan Stores were in force as on the date of filing nomination. Only TIN number of Velankani Enterprises had stood cancelled with effect from 30.11.2009. Apart from this, he was the sole proprietor of M/s Lobo Traders and the TIN number was in force from 1.4.2005. Though he is a builder, the same does not have any registration. If he was not a sales tax assessee, TIN number would not have been provided by the Sales Tax Department of the Government of Karnataka. 30. The quantum of gold ornaments possessed by him and the quantum of annual income furnished by him in Ex.P2 would speak volumes about his income tax and sales tax assessment. What is observed by the Tribunal is that copies of sales tax and income tax assessments have not been produced by him. Therefore adverse inference has been drawn against PW1. This court is unable to accept such an observation. In fact it was incumbent upon the 1st respondent to have entered into the witness box to speak about the contents of the information furnished by him to the election officer. Thus an important opportunity to cross-examine the 1st respondent on this vital aspect has been denied to PW1. This court is unable to accept such an observation. In fact it was incumbent upon the 1st respondent to have entered into the witness box to speak about the contents of the information furnished by him to the election officer. Thus an important opportunity to cross-examine the 1st respondent on this vital aspect has been denied to PW1. If the 1st respondent had entered the witness box, he would have been cross-examined by the counsel for the petitioner with reference to the information furnished by C.T.O. in Ex.P3, as also about the information furnished in Ex.P2 relating to his annual income, number of vehicles owned by him and gold ornaments owned. If he was not an income tax or sales tax assessee, nationalized banks and financial institutions would not have lent him such huge amount as loan. Therefore an adverse inference under Section 114(g) of the Evidence Act, in the light of the 1st respondent not stepping into the witness box, will have to be drawn against the 1st respondent. Hence the approach adopted by the Election Tribunal with regard to assessment of evidence of Ex.P2 and Ex.P3 is incorrect and improper. 31. The note appended to the gazette notification virtually excludes certain persons of backward classes under Category ‘B’ from contesting the election to Town Municipal Council, City Municipal Council and Town Panchayat. This exclusion cannot be considered as unreasonable. In an unreported decision, this court in W.P. 66229/09 c/w W.P. 3049/08 (GM-RES) disposed of on 25.2.2013, has held that if the husband is permitted to claim economic and social benefits on the ground that he has no income, notwithstanding the income of his wife, it would defeat the very purpose of those who are economically backward in category ‘B’. It is as good as excluding the persons in the creamy layer of backward class. The relevant portion is found in paragraph 12 of the said decision in W.P. 66229/09 in the case of RAJAN v. ASSISTANT COMMISSIONER and the same is reproduced below: 12. The prescription of the requirement that the spouse’s economic status is to be taken into account while considering his or her application for the grant of category b certificate cannot be termed as unreasonable. The prescription of the requirement that the spouse’s economic status is to be taken into account while considering his or her application for the grant of category b certificate cannot be termed as unreasonable. If the husband is permitted to claim the economic and social benefits on the ground that he has no income, notwithstanding the high income of the wife, it defeats the very purpose of making the reservation of seats for those who belong to socially and economically backward class. The very purpose of reserving certain seats for those belonging to lower income groups is to secure justice, both social and economic. The laudable reservation programme cannot be altered, scuttled or diluted to sub-serve the interest of a particular person. I therefore dismiss W.P.No.30944/2008. 32. On re-assessment of the entire evidence, this court is of the opinion that the approach adopted by the Election Tribunal in regard to this part of the evidence is incorrect and improper. The learned judge has not assessed the oral and documentary evidence in this regard on the basis of broad preponderance of probabilities. If the petitioner was able to furnish copies of income tax and sale tax assessment, his case would have been further strengthened. However, non-production of this assessment is not at all fatal to the case of the petitioner. With the available documentary evidence placed on record in the form of Exs.P2 and P3, and in the light of the 1st respondent not stepping into the witness box, an adverse inference will have to be drawn against the 1st respondent. This will strongly probablise the case of the petitioner that the 1st respondent was both sales tax and income tax assessee on the date of filing of nomination and also he had sufficient income so as to file income tax assessment. 33. Thus the initial burden cast on the petitioner has been effectively discharged and the onus which had shifted on the 1st respondent has not been explained in any manner. Thus point no.(1) is answered in the negative, holding that the Election Tribunal is not justified in holding that the 1st respondent – Anil Lobo was not an income tax or sales tax assessee when he filed nomination papers. 34. Thus point no.(1) is answered in the negative, holding that the Election Tribunal is not justified in holding that the 1st respondent – Anil Lobo was not an income tax or sales tax assessee when he filed nomination papers. 34. Point no.(2): The learned judge has come to the conclusion that the defects pointed out by the 1st respondent in regard to verification of pleadings was a curable defect and was not cured in spite of pointing out the same at the earliest point of time. Learned judge has further held that there is a gulf of difference between a curable defect and a defect where no effort is made to cure the same. In paragraphs 30 and 31 of the impugned order, the Tribunal has held that the petitioner had ample opportunity to cure the defect touching the verification of pleadings, but he has not chosen to cure the same. It is further held that the rigors of election trial have been held to be mandatory and violation of any one of these provisions of law would render dismissal of the very petition. It is further observed by the Tribunal in paragraph 32 that strict compliance of the provisions in election petitions have been upheld in a plethora of decisions of the Hon’ble apex court. 35. Reliance has been placed on the decision rendered by the Hon’ble Supreme Court in the case of DHARTIPAKAR MADANLAL v. RAJEEV GANDHI (1987 [SUPP] SCC 93. In the said decision, it is held that the right to challenge an election is a statutory right related to statutory provisions and therefore it is needless to say that strict rigors of law will have to be applied. It is further held that in spite of giving ample opportunity to cure the defect, the party did not choose to cure the same which touched the verification of pleadings. 36. The lower court records do disclose that the election petition was filed on 23.3.2013. As per Rule 69 of the Karnataka Municipalities (Election of Councillors) Rules, 1977, the Treasury challan must have been furnished along with the election petition to show that fee in a sum of Rs. 100/- had been deposited in favour of the Government. The learned judge of the Tribunal has made a detailed discussion in this regard in paragraph 24 of the impugned order. The challan for having deposited Rs. 100/- had been deposited in favour of the Government. The learned judge of the Tribunal has made a detailed discussion in this regard in paragraph 24 of the impugned order. The challan for having deposited Rs. 100/- was presented after the election petition was filed. The learned judge has held that though it was a formal defect, the same has been cured by subsequent payment by furnishing the challan to that effect. 37. A single Bench of decision this court in the case of LATA G. KRISHNA v. RETURNING OFFICER, (ILR 2003 KAR 3402) has been relied upon by the learned counsel for the petitioner. As per the facts of the said case, the civil court had dismissed the election petition of the appellant therein on the ground that she had not complied with the provisions of Rule 69 of the Karnataka Municipalities (Election of Councillors) Rules, 1977, as on the date of filing the election petition. Considering the scope of Rules 69 and 70 of the above Rules, this court in the case of LATA G. KRISHNA (supra), has held that the said rule is not mandatory, but directory. It is further held that in the light of consequences of not depositing Rs. 100/- at the time of filing of nomination, being not contemplated in the said rule, the provision will have to be held to be directory in nature. It is further amplified in LATA’s case that the very use of the word ‘shall’ could not, in such cases, make the provision mandatory so as to render violation thereof sufficient for election being annulled. It is further observed that at the best, it would be an irregularity and the said irregularity cannot entail dismissal of the election petition. 38. The decision in the case of LATA G. KRISHNA has been followed by another Single Bench of this court in the case of RAJE SAB v. KARNATAKA STATE BY ITS DEPUTY COMMISSIONER AND OTHERS (ILR 2005 KAR 457) wherein it is reiterated that non-payment of Rs. 100/- cannot be considered as a serious violation to dismiss the election petition itself. It is further held that the deposit of fee cannot be considered as a deposit towards cost and that the term ‘fee’ has a known legal connotation, and it is different from the term ‘costs.’ 39. 100/- cannot be considered as a serious violation to dismiss the election petition itself. It is further held that the deposit of fee cannot be considered as a deposit towards cost and that the term ‘fee’ has a known legal connotation, and it is different from the term ‘costs.’ 39. What exactly will be the consequence of an election petition being not signed and verified in the manner prescribed has been dealt with at length in the case of RAJE SAB wherein it has been held that non-signature of the petition is of no consequence as the provision is only directory and not mandatory. Section 21 of the Municipalities Act has been dealt with at length in the light of Rules 15 and 16 of Order VI, C.P.C. It is further held that Section 21 of the Act prescribes that the election petition shall be verified in the manner prescribed under the Code of Civil Procedure and therefore there is no provision or rule which lays down that the petition shall be rejected on account of verification of pleadings not being so signed. 40. Admittedly the present election petition was filed on 23.3.2013. Each page of the petition does not bear the signature of the petitioner. His signature is found only on the last page, i.e. at page 4 in two places, and the verification is found in between the two signatures and it reads thus: ‘I, the above named petitioner herein, do hereby declare that the facts stated above are all true to the best of my knowledge and belief.’ 41. In all there are 13 paragraphs inclusive of one paragraph relating to the prayer sought for. Order VI Rule 15, C.P.C. deals about verification of pleadings. For better understanding, entire Rule 15 of Order VI, C.P.C. is extracted below: 15. Verification of pleadings (1) Save as otherwise provided by law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case. (2) The person verifying shall specify, by reference to the numbered paragraphs of the pleadings, what he verified of his own knowledge and what he verifies upon information received and believed to be true. (2) The person verifying shall specify, by reference to the numbered paragraphs of the pleadings, what he verified of his own knowledge and what he verifies upon information received and believed to be true. (3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed. (4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings. Sub-rule (4) of Rule 15 of Order VI has been inserted with effect from 25.12.2006. It mandates that the person verifying the pleading must also furnish an affidavit in support of the pleadings. The auxillary word used in the three sub-rules is ‘shall.’ As rightly pointed out by this court in the case of RAJE SAB and LATHA G. KRISHNA, the consequences of non-compliance is not found. Therefore it would be difficult to accept the contention of the 1st respondent that the entire election petition itself will have to be dismissed. 42. In the objections filed to the electron petition, the 1st respondent has averred that the petition is not maintainable as the verifying affidavit is not annexed to the petition. According to him, pleadings are incomplete. Section 24 of the Act speaks about the procedure to be followed by the Election Tribunal and the said provision is reproduced below: 24. Procedure to be followed by the Election Tribunal:- The procedure provided in the Code of Civil Procedure, 1908, in regard to suits shall be followed by the Election Tribunal as far as it can be made applicable, in the trial and disposal of an election petition under the Act. 43. As pointed out in the paragraph 5 of the objections to the main petition, it is averred that the petition is not maintainable for non-verification as per Rules 14 and 15 of Order VI, C.P.C. and that on the foot of each page, the petitioner has not subscribed his signature and verification of pleadings found in page 4 is not in accordance with Rules 14 and 15 of Order VI, C.P.C. 44. Learned counsel for the 1st respondent has placed reliance on a decision of the Hon’ble apex court in the case of REGU PRATHAP (supra) to contend that sub-rule (2) of Rule 15 of Order VI, C.P.C. mandates that a person making verification is required to specify where reference is made to paragraphs of pleadings what he believes on his own knowledge and what he reveals upon information received and believed to be true. Of course this is admittedly not done in the present case. 45. In the case of REGU PRATHAP (supra), it is held that a defect in verification or affidavit is curable. What is further held is that such further curable defect must not be allowed to remain since there is a gulf of difference between a curable defect and such defect continuing without rectification. Therefore it is argued that in spite of pointing out serious irregularities found in the verification, the petitioner did not take steps to rectify the same. The trial court has accepted the argument advanced by the learned counsel for the 1st respondent, more particularly placing reliance on the decision rendered in the case of REGU PRATHAP. 46. Learned counsel has relied on yet another decision of the Hon’ble apex court rendered in the case of BALDEV SINGH (supra) where, in paragraphs 23 and 23, the scope of Rules 15 of Order VI, C.P.C. has been dealt with. It is further reiterated that the verification of an election petition must be done strictly in terms of Order VI Rule 15, C.P.C. and that the person verifying the affidavit must state as to which averments made in the petition were true to his knowledge and which were true to his belief. It is further reiterated that the factual averment made in the election petition cannot be both true to the knowledge and belief of the deponent. 47. It is useful to refer to a decision rendered by a Bench of the Hon’ble Supreme Court consisting of four Hon’ble Judges in the case of BHIKAJI KESHAO JOSHI & ANOTHER v. BRIJLAL NANDLAL BIYANI & OTHERS ( AIR 1955 SC 610 ). Section 80 of the Representation of People Act, 1951, has been discussed. In paragraph 6 of the said decision, it is held as follows: ‘The question is whether the petition is liable to dismissal on this ground. Section 80 of the Representation of People Act, 1951, has been discussed. In paragraph 6 of the said decision, it is held as follows: ‘The question is whether the petition is liable to dismissal on this ground. Though there may be cases where the date of the pleading and the verification may be relevant and important, it would be a wrong exercise of discretionary power to dismiss an application on the sole ground of absence of date of verification. In such a case, the applicants should normally be called upon to remove the lacuna by adding a supplementary verification indicating the date of the original verification and the reason for the earlier omission.’ 48. On reading of the law laid down by the Hon’ble apex court in the case of BHIKAJI KESHAO, it is clear that that an election petitioner must normally be called upon to remove the lacunae by adding a supplementary verification. As per the facts of the said case, a date needed to be rectified and such verification needed reason for earlier omission. 49. In the present case, an application had been filed on behalf of the 1st respondent before the trial court vide I.A. 3/13 under Section 21 of the Act read with Rule 69 of the Karnataka Municipalities (Election of Councillors) Rules, 1977, with a request to dismiss the petition as the fee of Rs. 100/- had not been deposited on the date of filing of nomination by the petitioner. The said application had been supported by an affidavit sworn to by the 1st respondent himself, i.e. Mr. Anil Lobo. Objections had been filed to the said application. After hearing, the application was dismissed n 26.6.2013 stating that the question of maintainability is a mixed question of law and facts and needs to be considered after evidence was recorded. The following is the order passing by the learned judge of the Tribunal on 20.6.2013: ‘Counsel for 1st respondent has filed I.A. NO. III under Section 21 of Karnataka Municipalities Act 1964 read with Rule 69 of 1977 Rules praying this court to has not been prescribed to the Election Tribunal in accordance with Section 21 of Karnataka Municipalities Act 1964 read with Rule 69 of 1977 Rules. III under Section 21 of Karnataka Municipalities Act 1964 read with Rule 69 of 1977 Rules praying this court to has not been prescribed to the Election Tribunal in accordance with Section 21 of Karnataka Municipalities Act 1964 read with Rule 69 of 1977 Rules. 1st respondent has raised several contentions touching proper presentation of the election petition, on the alleged ground of failure to present the petition in person, alleged non-payment of security deposit amount and also for want of proper verification of the petition which are countered by the petitioner by filing objections to I.A. No. III. After having gone through the material placed by the respondent parties and after hearing the parties, I am of the view that cogent evidence is required to come to a conclusion with regard to respective contentions of the parties touching the maintainability of the petition. As the question of maintainability in the circumstances of the case is a mixed question of law and facts, matter needs to be posted for evidence. Hence the question of maintainability as contended in I.A. No. III will be taken up on merits. Evidence on merits by: 27/6’. 50. Instead of giving opportunity to the election petitioner to cure the defect found in the verification, the learned judge has chosen to dismiss the election petition on the ground of defects in the verification, that too, after recording evidence. In the case of RAJESAB, a single Bench of this court has held that Rule 77(4) of the Karnataka Municipalities (Election of Councillors) Rules, 1977, provides that the petition under sub-rule (1) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for verification of pleadings and that annexures shall also be signed by the petitioner and verified in the same manner as the petition. Distinguishing the earlier decision of a Division Bench of this Court rendered in the case of S.SHEKAR v. COMMISSIONER/RETURNING OFFICER, BANGALORE CITY CORPORATION ILR 1999-KANT. 174, it is held that the said decision was in respect of Karnataka Municipal Corporation Election Rules, and there is no other provision or rule which lays down that the election petition shall be rejected on account of improper verification of pleadings, in the Karnataka Municipalities Act – 1964 or the relevant rules frames there under. 51. 174, it is held that the said decision was in respect of Karnataka Municipal Corporation Election Rules, and there is no other provision or rule which lays down that the election petition shall be rejected on account of improper verification of pleadings, in the Karnataka Municipalities Act – 1964 or the relevant rules frames there under. 51. In the case of CHANDRAKANT UTTAM CHODANKAR V. DAYANAND RAYUMANDRAKAR & OTHERS (2005 AIR SCW 19), the Hon’ble Supreme Court has held that furnishing of true copies, attestation of election petition and such other infirmities would not be fatal to the maintainability and the decision in RAJENDRA SINGH v. Smt. USHA RANI ( AIR 1974 SC 1185 ) is per incuriam. Therefore it is reiterated that in the light of the above judgments, improper verification of the pleadings would not be fatal to the election petition and it has to be considered as directory. 52. In the present case, the petitioner has been able to prove that the 1st respondent was disqualified from contesting the election. He has proved it by placing cogent acceptable materials on record. This is further supported by the fact that the 1st respondent has not entered the witness box. One has to keep in mind that the purity of election has to be maintained either with regard to the alleged corrupt practices or the very disqualification to contest the election When the petitioner is able to make out a clear case of the 1st respondent being disqualified to contest the election, non-verification of the pleadings would not be fatal in the present case. On the other hand, the learned judge should have considered these defects at the threshold or at least before the commencement of evidence. Therefore the approach adopted by the trial court is improper and incorrect. The observation that the petition suffers from improper verification of pleadings is unsustainable in the present case. 53. It is to be seen that very rarely election petitions would be filed. Whenever election petitions are filed, serious allegations about corrupt practices or about the contestant being disqualified would be made. In order to consider such vital pleas, it is better that formal defects in verification of pleadings or such other defects must be pointed out either by the adversary or the court, at the earliest, so that the same could be rectified within a time limit. In order to consider such vital pleas, it is better that formal defects in verification of pleadings or such other defects must be pointed out either by the adversary or the court, at the earliest, so that the same could be rectified within a time limit. In spite of not complying with the same within the time frame fixed by the court the petition is liable to be dismissed. In the light of Rule 15 of Order VI, C.P.C. not providing any consequence, the court will have to consider such objections in regard to the defects at the earliest. 54. On re-assessing the entire evidence, this court is of the opinion that the approach of the Election Tribunal is incorrect and improper. Hence, point no.(2) is answered in the negative. 55. Point no. (3): Learned counsel for the appellant has argued that relief has been sought to declare him as duly elected. This is found in paragraph 13 of the main petition before the Election Tribunal. Section 22(b) of the Act contemplates that the petitioner who challenges the election can himself seek the relief to the effect that he be declared as duly elected. Admittedly the 1st respondent had secured 302 votes; petitioner-Krishnaraj Hegde had secured 175 votes; respondents 3 and 4 had secured 11 and 107 votes respectively. Even if the total of the votes secured by the petitioner as well as that of respondents 2 and 3 are put together, it will not be equivalent to the votes secured by the 1st respondent. On that ground also, the petitioner cannot be declared as elected. 56. What is held by the Hon’ble Supreme Court in the case of VATAL NAGARAJ (SUPRA) is that ‘courts do not elect candidates whom the constituency has not favoured. The normal democratic process cannot be by-passed conveniently on the score of corrupt practices by the rival, except in exceptional cases where Section 101 of the Representation of People Act, 1951 stands fulfilled,’ The law enunciated by the Hon’ble apex court in the above case is aptly applicable to the facts of the present case also. It is further held by the Hon’ble Supreme Court that the election petitioner should not only win an election petition but also an election also and the voters should never feel that the candidate declared elected is a court-picked candidate. 57. It is further held by the Hon’ble Supreme Court that the election petitioner should not only win an election petition but also an election also and the voters should never feel that the candidate declared elected is a court-picked candidate. 57. The 1st respondent has placed some documentary evidence on record to demonstrate that the petitioner was also a tax assessee and has several businesses. Ex.R3 is the information furnished to him by the Commercial Tax Officer, Moodabidri. The petitioner-Krishnaraj Hegde, Vijaykumar Hegde and one Chinachand Hegde are stated to have a business in the name of R.K. Cashew Industries, Jain Store and Padmavarna Industries. The TIN number of these businesses are as follows: R.K. Cashew Industries : TIN 29910330427 Jain Store : TIN 29190574293 Parmavarna Industries : TIN 29740610026 Petitioner’s son, Akshay Hegde is said to be running a business under the name and style Arihant Cashed Processing Industry, Arihant Tyres in Moodabidri and those units are also provided with TIN and they were very much in force as on the date of filing of nomination by the petitioner. 58. An attempt has been made by the 1st respondent to impress upon the court that the petitioner is disqualified to contest the election though he is a person belonging to backward class, as Jain. Anyhow no issue has been framed in regard to the same by the trial court and therefore it would not be very much relevant to consider the same in the present petition, more particularly when his prayer for declaring him as duly elected, is rejected. Hence, interference is called for by this court insofar as it relates to the election of the 1st respondent which has been upheld by the Tribunal in No.1/13. 59. In the result I pass the following order: ORDER The appeal is allowed with costs. The order dated 11.11.2013 passed in Election Petition No. 1/13 pending on the file of Senior Civil Judge, Karkala, upholding the election of the 1st respondent from Ward No. 21 of Moodabidri Town in the election held on 7.3.2013, is set aside. Consequently the election of the 1st respondent, Mr. Anil C. Lobo as Councillor to Town Municipal Council, Moodabidri, is set aside with immediate effect. Registry to send a copy of the operative portion of the order to the Deputy Commissioner, Dakshina Kannada District immediately.