Research › Search › Judgment

Karnataka High Court · body

2021 DIGILAW 140 (KAR)

Firdous Parveez Taj, W/O Mahtoob Pasha v. Yasmin Taj, W/O Hafizulla

2021-01-22

KRISHNA S.DIXIT

body2021
ORDER : Petitioner, a Returned Candidate in 2019 Municipal Elections is before the Writ Court for assailing the order dated 17.3.2020, a copy whereof is at Annexure-A, whereby the Election Tribunal, at Sidlaghatta, having favoured respondent’s application in I.A.No.10 filed under Order VI Rule 17 r/w Sec.151 of CPC, 1908, in the pending E.P.No.1/2019, has granted leave to introduce details of several properties to the Petition, by way of amendment. After service of notice, respondent having entered appearance through her counsel, resists the writ petition making submission in justification of the impugned order. 2. Brief facts: Respondent has filed the subject Election Petition laying a challenge to petitioner’s election as a member of Sidlaghatta Municipality; the principal ground of challenge is non-disclosure of assets in the Nomination Form; petitioner moved an application u/o VII Rule 11(a) & (d) of the Code seeking rejection of petition inter alia on the grounds of absence of material facts and the cause of action; respondent, apart from objecting to the same filed an Amendment Application as well, for introducing the details of undisclosed assets of petitioner and her husband, to the petition; the learned Judge of the court below having favoured the said application granted leave to amend; aggrieved thereby, petitioner has filed this writ petition. 3. Contentions of the parties: (a) Learned counsel for the petitioner contends that after the expiry of statutory period of limitation prescribed for laying a challenge to the municipal election, amendment of the kind could not have been sanctioned since what is sought to be introduced are the ‘material facts’ which ought to have been pleaded in the petition as originally filed; he further contends that an Agreement to Sell does not make the vendee the title holder of the subject property and therefore, it does not fall within the meaning of ‘asset’ and thus, there was no need for its disclosure. (b) Per contra, learned counsel appearing for the respondent contends that what is permitted to be introduced by way of amendment are not material facts but only amplificatory of what is pleaded already; learned Judge of the court below in his discretion has granted leave to amend and therefore, a writ court exercising a limited supervisory jurisdiction constitutionally vested u/a 12 need not undertake a deeper examination of the same; so contending, he seeks dismissal of the writ petition. 4. 4. Having heard the learned counsel for the parties and having perused the petition papers, this Court declines to grant indulgence in the matter for the following reasons: (A) As to amendment of pleadings in the realm of Election Law; material facts vs. amplificatory facts: (a) It is basic to the law of elections that in a democracy, the mandate of people as expressed at the hustings must prevail and be respected; that is why the election of a successful candidate is not readily upset for askance; a heavy onus lies on the petitioner who seeks to void the election, to make out a clear case, both in terms of pleadings & proof; an election petition and a suit proceeding differ from each other in their nature & scope; it is a settled position of law that all “material facts” must be pleaded by the party in support of the case set up by him for voiding an election; ordinarily, if some facts inadvertently or otherwise are not pleaded can be loaded to the pleadings by amendment provided that, leave therefor is sought before the expiry of the period of limitation prescribed for filing the petition; this again is subject to all just exceptions; the underlying object of this is to enable the victorious candidate, to know the specific case which he has to meet. (b) Right to amend the pleadings even after the limitation period has expired avails in the realm of election law although it’s exercise is conditioned by the factors such as nature & substance of amendment, delay & latches, the stage of proceedings & the like, is not much in dispute since the provisions of CPC are made mutatis mutadis applicable to the trial of election petitions vide Sec.24 of the Karnataka Municipalities Act, 1964; where challenge is laid on the ground of corrupt practice, the right to amend the pleadings is limited to introducing “amplificatory particulars” of a corrupt practice not previously averred in the petition but does not extend to introducing the material facts, as such; by the subject amendment the respondent seeks to introduce the details of undisclosed properties to the petition, which are already stated in great details in the List of Documents which accompanied the original petition from the day one; even copies of documents were also filed; both the sides having understood what is what, accordingly have drawn the battle lines; that being the position, it cannot be gainsaid that the amendment introduces the material facts, when it only amplifies of what are there already. (B) Whether the List of documents & copies of documents can be treated as part of the pleadings ? (a) Ordinarily, the Plaint, Written Statement, Counterclaim, Reply/Replication & the Pleadings filed on the order or with the leave of court constitute pleadings, is true; however this is not the Thumb Rule; where law requires filing of the List of Documents & copies of the documents, the same may be treated as part of the pleadings, if there is a thick nexus between what is pleaded and what is produced along with the pleadings under the requirement of law; the respondent admittedly has filed a List of Documents and also copies of documents along with the Election Petition; a bare perusal of the List of Documents & the copies of the documents accompanying the petition shows the full particulars of the “assets” of the petitioner & her husband which allegedly have remained undisclosed in the Nomination Form. (b) The provisions of Order VII Rule 14 as amended in Karnataka w.e.f. 30.03.1967, mandate the filing of List of Documents and copies of documents along with the plaint, which the plaintiff relies upon in support of his case, unless they are in the custody or power of others; these provisions as already mentioned above govern the trial of election petitions vide Sec.24 of the KMC Act, so far as they can be made applicable; thus there is a statutory compulsion of the kind; that being the position, there is immense justification for treating the List of Documents & copies of documents which were filed along with the petition, as part of the pleadings of the respondent; this view finds support from the decision of the Apex Court in DAHIBEN Vs. ARVINDBHAI KALYANJI BHANUSALI, (2020) 7 SCC 366 ; the same happens to be the inarticulate premise on which the impugned order is structured. (c) Para 4 of the petition as originally filed by the respondent mentions about non-disclosure of assets in the Nomination Form and in the affidavit accompanying the same, although arguably not with much particulars; this paragraph also refers to the registered agreement to sell as Annexure-E to the election petition, and full payment of Rs.6,10,000/-as the consideration; true it is, that an agreement to sell/buy property per se does not create any interest therein in favour of vendee, vide Sec.54 of Transfer of Property Act, 1882; however, that does not mean that the amount paid as price or part thereof for the property agreed to be sold, is not an asset, for the limited purpose of disclosure in the Nomination Form/Affidavit. (C) Requirement of disclosure of assets by the electoral candidate and meaning of the word ‘assets’: (a) There is no dispute as to the legal requirement of disclosure inter alia of “assets” of the candidate and of spouse, both in terms of the State Election Commission Notification dated 14.07.2003 and the mandatory prescription in the Nomination Form itself; the said Notification has been issued pursuant to Apex Court decisions in UNION OF INDIA Vs. THE ASSOCIATION FOR DEMOCRATIC REFORMS, (2002) 5 SCC 294 and PUCL Vs. THE ASSOCIATION FOR DEMOCRATIC REFORMS, (2002) 5 SCC 294 and PUCL Vs. UNION OF INDIA, (2003) 4 SCC 399; the gist of the mandatory Notification states that: every candidate at the time of filing his Nomination paper for any election or bye election of Panchayat or Municipality shall furnish full and complete information in regard to inter alia the assets (immovable, movable, bank balances, etc.) of a candidate and of the spouse & also dependants, in a duly sworn affidavit. (b) The word ‘assets’ is derived from the French word ‘assez’ meaning ‘sufficient’; a word is the skin of a living thought (O.W.Holmes. J.,); at times words have flexible contours of meaning depending upon other companion words and the purpose of the instrument in which they are employed; the word ‘assets’ is employed in Sec.73 of CPC which regulates the trial & disposal of Election Petitions vide Sec.23 of KMC Act; the Madras High Court has held to mean the assets as proceeds of the sale of the property in execution of a decree vide RAMANATHAN –Vs-SUBRAMANIA SASTRIAL, 26 MADRAS 179; the Bombay High Court in VEILCHAND CHAGANLAL –Vs-MUSSON, 14 BOM LR 633 was of the view that all of man’s property, of whichever kind, which may be used to satisfy debts or demands existing against him constitute his asset; Sri P.Ramanath Iyer in “THE LAW LEXICON”, 3rd Edn. 2012, Butterworths Wadhwa at pages 130-131 opines: “An asset must be one for which a market value can be ascertained … property in general, all that one owns, considered as applicable to payment of his debts…”. 2012, Butterworths Wadhwa at pages 130-131 opines: “An asset must be one for which a market value can be ascertained … property in general, all that one owns, considered as applicable to payment of his debts…”. (c) The word ‘asset’ employed in the Election Notification needs to be construed by placing on it a purposive interpretation; it needs to be given the widest amplitude regardless of its literal meaning since law is not the slave of dictionaries; that approach serves the purpose for which the said Notification has been issued as a subordinate legislation, pursuant to Apex Court decisions, supra; a restrictive meaning of the term if adopted as suggested by the counsel for the petitioner, would defeat the very purpose; in other words owning or possessing is not a component of the concept of “asset” as employed in the notification; viewed from this angle an agreement to sell for which consideration in part or full is passed on constitutes an asset and therefore the candidate is required to disclose the same in the affidavit accompanying the Nomination Form; a contra argument would defeat the purpose for achieving which law mandates disclosure of assets; the right of electors/voters to know the credentials of the candidate would be partly meaningless if the candidates do not disclose the amount (which may be in crores of rupees) paid to the vendor as consideration for the agreement to sell; such agreements, subject to all just exceptions may be assignable for consideration and thus they have marketability; therefore the contra contention cannot be sustained. (D) Discretionary Order granting leave to amend and the restrictive jurisdiction of writ court to examine it: The learned Judge of the Election Tribunal having considered all aspects of the matter, has granted leave to amend the plaint/petition for introducing the property details which include the said registered agreement, as well, in his discretion; this order is not vulnerable for challenge inasmuch as the List of Documents as well as the copies of the documents were already filed along with the Election Petition and that those details are sought to be introduced to the petition by amendment that too at the pre-trial stage; nothing new has been added to the petition as would prejudice the petitioner, by pushing him to a surprise; nothing is pleaded in the petition as to how the subject amendment would prejudice his case as to justify invocation of writ jurisdiction. In the above circumstances, this writ petition being devoid of merits, is liable to be dismissed and accordingly it is, costs having been made easy. A request is made to the learned judge of the Court below to hear & decide petitioner’s pending applications within four weeks in the light of the observations made herein above and further to try & dispose off the subject Election Petition within an outer limit of six months, and to report compliance to the Registrar General of this Court. All contentions of the parties are kept open.