Telangana High Court Upholds Kothagudem MLA Election, Says Disclosing Spouse Name In Affidavit Not Mandatory

The Telangana High Court has upheld the election of CPI's Kunamneni Sambasiva Rao in 2023, as MLA from the Kothagudem Assembly Constituency, which was challenged on the ground that he failed to disclose his wife's name in Form 26 Affidavit.

Justice K Lakshman thus dismissed the Election Petition filed by a resident by relying on Union of India v. Association for Democratic Reforms (2002) where it was held that mere non-disclosure of name of the spouse would not render the application of candidate nugatory, if all other necessary information of the spouse such as PAN number, assets, etc are disclosed.

The bench observed,

“It is apt to note that respondent No.1 has to disclose all the details of his marital status, antecedents, educational qualifications and details of dependants. He has to disclose the said details of his spouse and his dependants. The same are mandatory. Respondent No.1 has disclosed the aforesaid details. He has not mentioned his wife's name at the spouse column in Ex.P5 affidavit. It is also not in dispute that voter should know the details of candidate and it is part of Article - 19 (1) (a) of the Constitution of India. Thus, respondent No.1 has disclosed that he got married, he has spouse and he has disclosed her PAN, income details and assets and liabilities. Therefore, this Court is of the considered view that non-mentioning of his spouse name by respondent No.1 - returned candidate will not affect the subject election materially and it is not substantial in character.”

In regards to the claim that the Affidavit should not have been accepted on account of being insufficiently notarised, the Bench reiterated that the Returning Officer is not obligated to conduct a roving inquiry into the contents of the Form 26 Affidavit; instead, he to only satisfy himself that the contents of the application are prima facie genuine.

Going further, the Bench noted that the main grievance of the petitioner was that the Notary, who stamped the Form 26 Affidavit, did not have a valid Certificate of Practice.

Referring to Rule 8B of the Notary Rules 1952, it noted that the Notary had submitted an application for renewal before the expiry of his Certificate of Practice, but the same was not processed by the appropriate authority. The Bench noted that when renewal of Notary was applied for in accordance with the established procedure, a person would be entitled to renewal under section 5(2) of the Notaries Act, 1952.

“Therefore, as on the date of notary of Ex.P5 i.e., 08.11.2023, the District Registrar, Khammam has already forwarded his recommendations for renewal of certificate of the aforesaid Notary and the same was pending with the competent authority. Thereafter he has issued Ex.X1 proceedings dated 22.01.2024 renewing notary of Mr. Rajamallu w.e.f. 07.07.2021. Thus, respondent No.1 cannot expect to conduct an enquiry to ascertain validity of the said certificate while obtaining notary on Ex.P5. Therefore, on the said ground, it cannot be held that the election of respondent No.1 is materially affected,” it held and dismissed the petition.

Case title: Nandu Lal Agarwal vs. Kunamneni Sambasiva Rao

Counsel for petitioner: Senior Counsel G Vidya Sagar, representing Sai Prasen Gundavaram

Counsel for respondent: K. Durga Prasad representing Ramesh Katikineno, Ravi Chandra Sekhar.

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