Karnataka High Court
Sri G H Ningegowda vs The State Election Commission on 8 January, 2021
Equivalent citations: AIRONLINE 2021 KAR 18
Author: S.G.Pandit
Bench: S.G. Pandit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JANUARY, 2021
BEFORE
THE HON' BLE MR. JUSTICE S.G. PANDIT
WRIT PETITION No.326/2021 (LB-ELE)
BETWEEN:
SRI G H NINGEGOWDA
AGED ABOUT 66 YEARS
S/O HUILEGOWDA
R/AT GAGENAHALLI VILLAGE
KASBA HOBLI
HUNSUR TALUK
MYSORE DISTRICT - 571105. ...PETITIONER
(BY SRI. B S NAGARAJ, ADV.)
AND:
1. THE STATE ELECTION COMMISSION
REPD. BY ITS COMMISSIONER
NO.8, 1ST FLOOR, KSCMF BUILDING
ANNEXE, CUNNINGHAM ROAD
BENGALURU - 560052.
2. THE RETURNING/ELECTION OFFICER
GAGENAHALLI VILLAGE PANCHAYATH
HUNSUR TALUK
MYSORE DISTRICT - 571105.
3. SRI RAJESH
AGED ABOUT 30 YEARS
S/O SHEKAREGOWDA
R/AT GAGENAHALLI VILLAGE
KASABA HOBLI
HUNSUR TALUK
MYSORE DISTRICT - 571105.
...RESPONDENTS
(BY SRI.NITHYANANDA K.R., HCGP)
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER (ENDORSEMENT) DATED 30.12.2020 ISSUED BY THE
R2 RETURNING OFFICER, WHEREIN REJECTED THE
APPLICATION MADE BY THE PETITIONER SEEKING
RECOUNTING OF VOTERS IN SO FAR AS BOTH NO.66 WITH
RESPECT TO VILLAGE PANCHAYATH ELECTIONS HELD FOR
GAGENAHALLI VILLAGE CONSTITUENCY NO.2, OF
GAGENAHALLI VILLAGE PANCHAYATH. THE SAID
ENDORSEMENT IS SUBMITTED HEREWITH AT ANNEXURE-A
AND FURTHER DIRECT THE R2 RETURNING OFFICER TO
CONSIDER THE APPLICATION DATED 30.12.2020 MADE FOR
RE-COUNTING COPY AT ANNEXURE-C.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner, an unsuccessful candidate in the Panchayath Election is before this Court under Article 226 of the Constitution of India praying to quash the endorsement dated 30.12.2020 (Annexure-C) by which respondent No.2-the Returning Officer rejected the application of the petitioner for recounting of votes insofar as booth No.66 of Gagenahalli Village Panchayath and for a mandamus directing respondent No.2-the Returning Officer to consider the application dated 30.12.2020 for recounting of votes. 3
2. Heard Sri B.S. Nagaraj, learned counsel for the petitioner. Sri Nithyananda K.R., learned HCGP assisted the Court.
3. Sri B.S. Nagaraj, learned counsel for the petitioner would submit that the petitioner contested the election held on 22.12.2020 to Gagenahalli Village Constituency No.2 of Gagenahalli Village Panchayath. The counting of votes was held on 30.12.2020. Petitioner is concerned with Booth No.66 of Gagenahalli Village Panchayath, for which counting started at 12.00 Noon on 30.12.2020. One Sri Chandregowda, Agent of the petitioner was present during the counting. The Returning Officer announced the votes secured by respondent No.3 and the petitioner as 430 and 424 respectively. Petitioner's agent Sri Chandregowda raised objection stating that there is wrong counting and immediately requested the Returning Officer for recounting. The application signed by the petitioner was also made immediately as per Annexure-C for recounting of votes. The said request of 4 the petitioner was rejected as per Annexure-A endorsement stating that the petitioner's application for recounting was not made within 10 minutes of completion of counting. Learned counsel for the petitioner would contend that no such time limit is prescribed under the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (for short 'the Act') nor the Karnataka Panchayat Raj (Conduct of Election) Rules, 1993 (for short 'the Rules). Learned counsel would invite attention of this Court to Rule 71 of the Rules to submit that the 2nd respondent-the Returning Officer failed to follow the procedure contemplated therein. Further learned counsel would submit that the petitioner is not questioning the election, but is questioning only rejection of his application for re- counting of votes, as such the writ petition would be maintainable. Learned counsel would also contend that Section 19 of the Act provides grounds of challenge in an election petition, but rejection of request for re- counting is not a ground under Section 19 of the Act. 5
4. Per contra, learned HCGP, who assisted the Court would submit that the writ petition would not be maintainable and the remedy of the petitioner is to file election petition. From the date of publishing of calendar of events till the results are declared, any violation of the procedure and violation of any Rule, the remedy would be to file election petition. He invites attention of this Court to Section 19 (1)(d)(iv) of the Act to contend that non-compliance of any of the provision of the Act or Rules would be a ground for election petition.
5. The petitioner contested Grama Panchayath Election held on 22.12.2020 from Gagenahalli Village Constituency No.2 of Gagenahalli Village Panchayath. Counting of votes had taken place on 30.12.2020. The petitioner's case is that his request for re-counting of votes of Booth No.66 of Gagenahalli Constitutuency No.2 is rejected contrary to Rule 71 of the Rules. If there is any violation of Rules or any of the provisions of 6 the Act, from the date of announcing the calendar of events till the results are announced it would be the subject matter of election petition.
6. Election covers the entire process from the date of issuance of calendar of events till the date of declaration of the results. No judicial proceedings, during the course of election which may have the effect of interruption or obstruction in the election proceeding would be maintainable. Interfering or otherwise with the decision of respondent No.2-Returning Officer with regard to recounting at this stage by this Court would result in interrupting or obstructing the process of election and postponing the election, which is impermissible. Recounting of votes is a part of the election process and if the request of the petitioner for recounting is rejected, it would fall within the election process and the only remedy open to the petitioner is to file election petition before the Competent Authority. 7
7. Writ petition under Article 226 of the Constitution of India questioning the process of election or the rejection of petitioner's request for recounting would not be maintainable. It may be useful to refer to Article 243-O(b) of the Constitution of India which reads as follows :-
"243-O. Bar to interference by courts in electoral matters.- Notwithstanding anything in this Constitution-
(a) xxxxx
(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State."
The above constitutional provision mandates that election to any panchayath shall only be questioned in an election petition as provided under any law made by the State. Section 15 of the Act provides for filing of election petition. Section 16 of the Act provides for contents of the election petition and relief that could be 8 claimed in an election petition. Section 19 of the Act provides for grounds on which election could be declared as void. Section 19 of the Act reads as follows:-
"19. Grounds for declaring election to be void.- (1) Subject to the provisions of sub-section (2) if [the Designated Court] is of opinion,-
(a) that on date of his election a returned candidate was not qualified, or was disqualified, to be chosen as a member under this Act; or
(b) that any corrupt practice has been committed by a returned candidate or his agent or by any other person with the consent of a returned candidate or his agent; or
(c) that any nomination paper has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected,-
(i) by the improper acceptance of any nomination; or 9
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent; or
(iii) by the improper reception , refusal or rejection of any vote or reception of any vote which is void ; or
(iv) by any non-compliance with the provisions of this Act or of any rules or orders made thereunder;
[the Designated Court] shall declare the election of the returned candidate to be void." A reading of sub-section 1(d)(iv) of Section 19 of the Act makes it clear that any non-compliance of the provisions of the Act or of any Rules or orders made thereunder which materially affected the result of the election, insofar as the returned candidate would be a ground for declaring election to be void. In the instant case, the petitioner's grievance is that, non-compliance of the procedure contemplated under Rule 71 of the Rules, materially affected the result of respondent No.3 returned candidate. If there is non-compliance with 10 Rule 71 of the Rules, Section 19 of the Act provides for a ground to challenge the election.
8. For the reasons recorded above, I am of the view, that the present writ petition would not be maintainable for the relief sought for by the petitioner and it is for the petitioner to question the same by filing an election petition before the appropriate forum. Accordingly, the writ petition is dismissed with liberty to the petitioner to file Election Petition with regard to his grievance. All contentions of the petitioner are left open.
Sd/-
JUDGE NG* CT:bms