Karnataka High Court
Smt. K Usha vs The Election Officer on 28 August, 2018
Author: B.Veerappa
Bench: B.Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MR.JUSTICE B.VEERAPPA
WRIT PETITION NO. 36984 OF 2018 (LB-ELE)
BETWEEN
SMT. K. USHA,
W/O H.M. KRISHNACHAR,
AGED ABOUT 47 YEARS,
OCC: ADVOCATE,
NO. 4/6, 1ST CROSS,
TANK MOHALLA,
SHIVAMOGGA.
..PETITIONER
(BY SRI. VINAYAKA, ADVOCATE)
AND
1. THE ELECTION OFFICER/
RETURNING OFFICER,
WARD NO. 11, 12, 13, 14 & 15
SHIVAMOGGA MUNICIPAL CORPORATION,
SHIVAMOGGA - 577 201.
2. THE KARNATAKA STATE
ELECTION COMMISSION
KARNATAKA STATE CO-OPERATIVE
MARKETING FEDERATION BUILDING,
CUNNINGHAM ROAD - 560 052.
3. SHIVAMOGGA MUNICIPAL CORPORATION
SHIVAMOGGA - 577 201.
REP. BY ITS COMMISSIONER.
... RESPONDENTS
(BY SMT. PRATHIMA HONNAPURA, AGA FOR R1.
SRI. K.N. PHANEENDRA, ADVOCATE FOR R2.)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
2
IMPUGNED ORDER PASSED BY THE R-1 VIDE ANNEX-A DATED
21.8.2018 AND CONSEQUENTLY DIRECT THE R-1 TO ACCEPT
THE NOMINATION OF THE PETITIONIER AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner has filed the present writ petition for a writ of certiorari to quash the order passed by the 1st respondent dated 21.08.2018 rejecting the nomination filed by the petitioner on the ground that she is in the panel of the municipality and she is barred to contest in the elections in view of provision of Sec. 26(1)(l) of Karnataka Municipal Corporations Act, 1976 (herein after referred to as 'Act').
2. Sri. Vinayaka B, learned counsel for the petitioner mainly contends that though the petitioner is in the panel of Municipality now upgraded to Municipal Corporation - the third respondent, the petitioner herein, is not getting any remuneration, therefore, there is no bar to contest the elections. He further contended that in view of the dictum of this court in the case of Sri. Khatib Irshad Ahmed Vs The Returning Officer for Election (ILR 1998 KAR 1813), writ petition is 3 maintainable. Therefore, he submits that the petitioner is entitled to the relief sought for and petitioner may be permitted to contest for the elections subject to the result of this writ petition.
3. Per contra, Smt. Prathima Honnapura, learned AGA for 1st respondent and Sri. K.N. Phaneendra, learned counsel for 2nd respondent, Election Commission submit that calendar of events is already been issued and the election is fixed on 31st August 2018 and admittedly the petitioner is in the panel of 3rd respondent Corporation. Hence, petitioner is not entitled to contest the election in view of provision of Sec. 26(1)(l) of the Act and this court cannot interfere with the rejection of nomination in view of provision of Sec. 35(1)(c) of the Act and contended that the only remedy to the petitioner is to file an election petition. Therefore, sought for dismissal of the writ petition.
4. Having heard learned counsel for the parties, it is undisputed fact that petitioner is a practicing advocate and is in the panel of 3rd respondent - Corporation on 4 temporary basis. Provisions of Sec. 26(1)(l) reads as under " (l) if he is employed as paid legal practitioner on behalf of the Corporation or accepts employment as legal practitioner against the Corporation"
The above proviso prima-facie bars the petitioner to contest the election. Even otherwise, the rejection of nomination of the petitioner is not a ground to entertain the writ petition under Article 226 of Constitution of India, in view of Sec. 35(1)(c) of the Act.
5. It is also not in dispute that once the election process has commenced, rejection of nomination is not a ground to entertain the writ petition under Article 243ZG of the Constitution of India and my view is fortified by the Hon'ble Supreme Court in the case of Manda Jaganath Vs. K.S. Rathnam and Others (2004) 7 SCC
492. The Hon'ble Supreme Court has held as under:
12. In our opinion, whether the Returning Officer is justified in rejecting this Form B submitted by the first respondent herein or not, is not a matter for the High Court to decide in 5 the exercise of its writ jurisdiction. This issue should be agitated by an aggrieved party in an election petition only.
16. The above view of this Court in Ponnuswami Case has been quoted with approval by the subsequent judgment in M.S. Gill wherein this Court after quoting the passages from the said judgment in Ponnuswami Case held that there is non obstante clause in Article 329 and, therefore, Article 226 stands pushed out where the dispute takes the form of calling in question an election, except in special situations pointed out but left unexplored in Ponnuswami case. It is while considering the above unexplored situations in Ponnuswami that in M.S.Gill case this Court held thus: (SCC p. 429, para 34) "34. This dilemma does not arise in the wider view we take of Section 100(1) (d)(iv) of the Act. Shri Rao's attack on the order impugned is in substance based on alleged non-compliance with a provision of the Constitution viz., Article 324 but is neatly covered by the widely-worded, residual catch-
all clause of Section 100. Knowing the supreme significance of speedy elections in our system the framers of the Constitution have, by 6 implication postponed all election disputes to election petitions and tribunal. In harmony with this scheme Section 100 of the Act has been designedly drafted to embrace all conceivable infirmities which may be urged. To make the project foolproof Section 100(1)(d)(iv) has been added to absolve everything left over. The Court has in earlier rulings pointed out that Section 100 is exhaustive of all grievances regarding an election."
6. In the above facts and circumstances of the case, the petitioner is not entitled for any relief under Article 226 of the Constitution of India. Accordingly, the writ petition is dismissed. However, it is always open for the petitioner to file election petition after election is completed.
Ordered accordingly.
Sd/-
JUDGE DKB