kanimozhi election

Supreme Court: In a big relief to DMK Leader Kanimozhi Karunanidhi, the bench of Ajay Rastogi and Bela M Trivedi*, JJ has upheld her election in the 2019 Lok Sabha Elections from Tamil Nadu’s Thoothukudy Lok Sabha Constituency. Her election was challenged on the ground that she had intentionally supressed the information about the payment of income tax of her spouse. The Supreme Court however observed that mere bald and vague allegations without any basis would not be sufficient compliance of the requirement of stating material facts in the Election Petition.

In the case at hand, the election petitioner had contended that the Election Commission of India had called for the information prescribing the Form 26 in regard to status of filing of income tax return of candidates and their family members by exercising powers under Article 324 of the Constitution of India and in that Kanimozhi had provided information that her spouse was working as consultant at foreign country and earning salary against the column No. 8, Serial No.9(b) and 9A(b), respectively under Part A of Form 26. Besides, she had mentioned “No” to the query regarding Income tax dues of her spouse and that her spouse had bank accounts in Singapore with deposit of dollars but had failed to disclose the status of filing income tax return of her spouse in the foreign country.

Explaining the law with regard to the non-compliance of the requirement of Section 83(1)(a) of the Representation of the People Act, 1951, namely – “an Election petition must contain a concise statement of material facts on which the petitioner relies”, the Court observed that such noncompliance of Section 83(1)(a) read with Order VII, Rule 11, CPC, may entail dismissal of the election Petition right at the threshold if “material facts” are not established by the Election petitioner. The material facts which are primary and basic facts have to be pleaded by the Election petitioner in support of the case set up by him to show his cause of action and omission of a single material fact would lead to an incomplete cause of action, entitling the returned candidate to pray for dismissal of Election petition under Order VII Rule 11(a) CPC read with Section 83(1)(a) of the RP Act.

“The test required to be answered is whether the court could have given a direct verdict in favour of the election petitioner in case the returned candidate had not appeared to oppose the Election petition on the basis of the facts pleaded in the petition. They must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the Code of Civil Procedure 1908. Material facts would include positive statement of facts as also positive statement of a negative fact.”

Applying this legal position to the case at hand, the Court observed that as the omission of a singular fact would lead to incomplete cause of action, the election petitioner had failed to make any averment as to how there was non-compliance with provisions of the Constitution or of RP Act or of the Rules or Order made thereunder and as to how such non-compliance had materially affected the result of the election, so as to attract the ground under Section 100(1)(d)(iv) of the RP Act, for declaring the election to be void.

Further, the election petitioner made very bald and vague allegations without stating the material facts as to how there was non-compliance of any of the provisions of the Constitution of India or of the RP Act or of the rules made thereunder. The Court noticed,

“If the averments made in the Election petition are read in juxtaposition to the information furnished by the appellant-returned candidate in Form No. 26, it clearly emerges that against the information sought about the PAN number of the spouse of the appellant, it has been stated that “No PAN No.”, “Spouse K. Aravindhan Foreign Citizenship”. Against the information sought with regard to “The financial year for which the last income tax return has been filed”, the information supplied by the appellant about her spouse is “Not applicable”. The appellant has filled in all the columns of Form No. 26 by furnishing the 32 information with regard to her Permanent Account Number and status of filing of income tax return etc. and of her husband wherever applicable.”

Hence, it was observed that if according to the election petitioner, Kanimozhi had suppressed the Permanent Account Number of her spouse and also about the non-payment of income tax of her spouse in the foreign country, it was obligatory on the part of the Election petitioner to state in the Election petition as to what was the Permanent Account Number of the spouse of the returned candidate in India which was suppressed by her and how the other details furnished about her husband in the said Form No. 26 were incomplete or false.

Hence, the omission to state such vital and basic facts rendered the petition liable to be dismissed under 35 Order VII, Rule 11(a) CPC read with Section 83(i)(a) of the RP Act, 1951.

[Kanimozhi Karunanidhi v. A. Santhana Kumar, 2023 SCC OnLine SC 573, decided on 04-05-2023]

*Judgment Authored by Justice Bela M. Trivedi

Know Thy Judge| Justice Bela Madhurya Trivedi

Advocates who appeared in this case :

For Appellant: Senior Advocate Mr. P. Wilson;

For respondent: Advocate Mr. Mukesh S.

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