Karnataka High Court
Sri Laxman S/O Devendrappa Chandavari vs The Assistant Commissioner on 14 March, 2022
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
WP No.100421/2022
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ
WRIT PETITION No.100421/2022 (LB-ELE)
BETWEEN
1. SRI. LAXMAN S/O. DEVENDRAPPA CHANDAVARI,
AGED 60 YEARS, OCC: AGRICULTURIST AND
COUNCILLOR - WARD NO.29,
R/AT RAJIV GANDHI NAGAR,
GADAG TALUK AND DISTRICT - 582101.
2. SMT. SHAKUNTALA W/O. HOLABASAPPA AKKI,
AGED 42 YEARS, OCC: HOUSEHOLD AND
COUNCILLOR - WARD NO.4,
R/O. S.M. KRISHNA NAGAR,
GADAG TALUK, DIST. GADAG - 582101.
3. SRI. KRISHNA SON OF PARASAPPA PARAPUR,
AGED 53 YEARS, OCC: AGRICULTURIST AND
COUNCILLOR - WARD NO.16,
R/O. D.C.MILL ROAD,
THALAGERI ONI, GADAG, DIST. GADAG - 582101.
4. SRI. BARKAT ALI S/O. ABDUL WAHAB MULLA,
AGED 51 YEARS, OCC: BUSINESS AND
COUNCILLOR - WARD NO.23,
R/O. DAKANI GALLI, GADAG,
DIST. GADAG - 582101
5. SRI. RAVIKUMAR S/O. KOTRAPPA KAMATAR,
AGED 40 YEARS, OCC: AGRICULTURIST AND
COUNCILLOR-WARD NO.22,
R/O. KAMATAR PLOT, VAKKALAGERI ONI,
GADAG, DIST. GADAG - 582101.
6. SRI. JAINULABDIN S/O. ABDUL REHAMANSAB NAMAZI,
AGED 53 YEARS, OCC: BUSINESS AND
WP No.100421/2022
:2:
COUNCILLOR-WARD NO.18,
R/O. JAVALAGALLI AZAD ROAD,
GADAG, DIST. GADAG-582101.
7. SRI. CHANDRASHEKAR GOUDA,
S/O. PARVATHA GOUDA KARISOMANAGOUDAR,
AGED 50 YEARS, OCC: BUSINESS AND
COUNCILLOR - WARD NO.9,
R/O. VAKKALAGERI ONI, BETAGERI-GADAG,
DIST. GADAG - 582101.
... PETITIONERS
(BY SHRI. UDAY HOLLA, SENIOR COUNSEL FOR
SRI. K.L.PATIL AND SRI. S.S.BETURMATH, ADVOCATES)
AND
1. THE ASSISTANT COMMISSIONER,
GADAG SUB-DIVISION,
GADAG - 582101,
AND THE ELECTION OFFICER,
GADAG - BETAGERI CITY MUNICIPAL COUNCIL,
PRESIDENT AND VICE PRESIDENT ELECTION.
2. THE STATE OF KARNATAKA,
REPRESENTED BY SECRETARY,
DEPARTMENT OF URBAN DEVELOPMENT
DEPARTMENT AND MUNICIPALITIES,
VIKASA SOUDHA, BENGALURU-560001.
3. THE DEPUTY COMMISSIONER,
GADAG DISTRICT,
GADAG - 582101.
4. THE COMMISSIONER,
GADAG-BETAGERI CITY MUNICIPAL COUNCIL,
GADAG - 582101.
5. SMT. USHA W/O. MAHESH DASAR,
AGED ABOUT 26 YEARS,
OCC: HOUSE WIFE AND COUNCILLOR-WARD NO.35,
R/O. HUDCO COLONY,
GADAG - 582101.
6. SMT. SUNANDA W/O. PRAKASH BAKALE,
WP No.100421/2022
:3:
AGED 40 YEARS, OCC: HOUSEHOLD WORK
AND COUNCILLOR - WARD NO.32,
R/O. DASAR ONI, GADAG - 582101,
TALUK AND DIST: GADAG.
7. SRI. MADUSA S/O. TEJUSA MERAWADE,
AGED ABOUT 54 YEARS,
R/O. # 6027/1A, HOSAPETE CHEK,
AYYAPPAN ROAD,
BETAGERI GADAG - 582102.
8. SMT. LAKSHMI W/O. SHANKAR KAKI,
AGED ABOUT 40 YEARS,
RESIDING AT KHDC NEKAR COLONY,
BETAGERI-GADAG - 582102.
9. SRI. RAGHAVENDRA S/O. BASAVARAJ YALAVATTI,
AGED ABOUT 34 YEARS,
RESIDING AT SHIVAJI NAGAR,
BLOCK NO.1, BETAGERI-GADAG-582102.
10. SHWETHA D/O. RAVI DANDIN,
AGED ABOUT 22 YEARS,
RESIDING AGT VIDYA NAGAR,
GADAG-582101.
11. SMT. DINDOOR VIJAYALAKSHMI W/O. SHASHIDHAR,
AGED ABOUT 40 YEARS,
RESIDING AT KARIYAMMAKAL BADAVANE,
GADAG-582101.
12. SRI. GULAPPA S/O. HANUMANTHAPPA MUSHIGERI,
AGED ABOUT 43 YEARS,
RESIDING AT VIVEKANANDA NAGAR,
GADAG - 582101.
13. SRI. PRAKASH S/O. RACHAPPA ANGADI,
AGED ABOUT 48 YEARS,
RESIDING AT NEAR KARANT SCAN CENTRE,
GADAG - 582101.
14. SRI. CHANDRASHEKHAR S/O. BASAVARAJ TADASAD,
AGED ABOUT 46 YEARS,
RESIDING AT OPP. KATTIBASAVANNA TEMPLE,
BASAVESHWAR NAGAR, GADAG - 582101.
WP No.100421/2022
:4:
15. SRI. MAHANTESH S/O. KUBERAPPA NELAVADI,
AGED ABOUT 45 YEARS, RESIDING AT
KHANTHOT, NEAR VEERNARAYAN TEMPLE,
GADAG-582101.
16. SRI. NAGARAJ S/O. HULIGEPPA TALWAR,
AGED ABOUT 46 YEARS,
RRESIDING AT PLOT NO.42, YALAMALLI LAYOUT,
KALASAPUR ROAD, GADAG - 582101.
17. SRI. MANVI VINAYAK S/O. SHIVAPPA,
AGED ABOUT 59 YEARS,
RESIDING AT : NEAR VEERNARAYAN
TEMPLE ROAD, GADAG - 582101.
18. SMT. HULIGEMMA W/O. GANGASA HABIBA,
AGED ABOUT 53 YEARS,
RESIDING AT KUMBAR ONI, GADAG-582101.
19. SRI. SIDDALINGAPPA (ANIL) S/O.
MALLIKARJUN ABBIGERI,
AGED ABOUT 46 YEARS,
RESIDING AT OLD SARAF BAZAR,
GADAG-582101.
20. SMT. BAKALESHAILA W/O. NARASINGASA,
AGED ABOUT 44 YEARS,
RESIDING AT NEAR JOD MARUTI TEMPLE,
SRI. TRIKUTESHWAR TEMPLE ROAD,
KILLA STREET, GADAG-582101.
21. SMT. ANITHA W/O. VIJAYKUMAR GADDI,
AGED ABOUT 50 YEARS,
RESIDING AT PLOT NO.6702/B8,
ABHISHEK BUILDING, NEAR STADIUM,
GADAG - 582101.
22. SMT. VIDYAVATI W/O. AMARNATH GADAGI,
AGED ABOUT 37 YEARS,
RESIDING AGT HOUSE NO.45/159,
ADARSH NAGAR, GADAG - 582103.
23. SHIVAKUMAR CHANNABASAPPA UDASI,
AGED ABOUT 45 YEARS,
WP No.100421/2022
:5:
RESIDING AT GOULI GALLI, HANAGAL,
DIST. HAVERI - 581104
... RESPONDENTS
(SRI. PRABHULING K. NAVADAGI, ADVOCATE GENERAL
FOR R1 TO R3;
SRI. HARSH DESAI, ADVOCATE FOR R4;
SRI. PRAVEEN P. TARIKAR, ADVOCATE FOR R5 AND R6;
SRI. VIKRAM HUILGOL, SENIOR COUNSEL FOR IMPLEADING R7 TO
R23)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSITUTION OF INDIA, PRAYING TO (A) ISSUE A WRIT
OF CERTIORARI OR ANY OTHER WRIT, ORDER OR DIRECTION
QUASHING THE ELECTION PROCEEDINGS OF THE ELECTION TO
THE POST OF THE PRESIDENT AND THE VICE PRESIDENT HELD BY
THE ELECTION OFFICER, THE 1ST RESPONDENT HEREIN, ON
24.01.2022, VIDE ANNEXURE-C.
THIS PETITION COMING ON FOR FINAL HEARING, HAVING
BEEN HEARD AND RESERVED FOR ORDERS ON 03.03.2022, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The Petitioners are before this Court, seeking the following reliefs:
(a) Issue a writ of certiorari or any other writ, order or direction quashing the election proceedings of the election to the post of the President and the Vice President held by the Election Officer, the 1st Respondent herein, on 24.01.2022 vide Annexure-C.
(b) Declare that the election held to the post of the President and the Vice President to Gadag-
Betageri City Municipal Council is vitiated by fraud and manipulation and consequently declare that the entire election process is vitiated.
WP No.100421/2022:6:
(c) Direct the Respondents to hold fresh election to the post of President and the Vice President of the Gadag-Betageri City Municipal Council; and
(d) Grant such other and further reliefs as are just, including the cost of this petition.
2. The Petitioners are stated to be the members of the Gadag-Betageri City Municipal Council (hereinafter for brevity, referred to as 'Municipal Council'). They having been elected in the elections held to the City Municipal Council on 27.12.2021. The Municipal Council consists of 35 elected members and two ex-officio members, being the Member of the Legislative Assembly and the Member of Parliament of the Haveri Parliamentary constituency, in all amounting to 37 members.
3. Upon the election of the Municipal Council being completed, there being a requirement for the election of President and the Vice-President of the said Municipal Council, hence, in terms of the Karnataka Municipalities President and Vice- President Elections Rules, 1965, (hereinafter for WP No.100421/2022 :7: brevity referred to as "the Rules") the said process of election was commenced. The Assistant Commissioner, Gadag Sub-Division, Gadag, the Respondent No.1 herein, was appointed as the Election Officer to conduct the said elections in terms of the said Rules.
4. In furtherance of the same, Respondent No.1 issued a notice in Form No.1 of the said Rules, notifying the elections for the post of President and Vice-President to be held on 24.01.2022 at 2.00 p.m in the meeting hall of the Municipal Council, the nomination papers thereof to be filed between 10.00 a.m. to 12.00 noon of 24.01.2022 and the scrutiny thereof to be completed by 2.00 p.m.
5. Petitioner No.1 though in the cause title has been shown only as Laxman, his complete name being Laxman Devendrappa Chandavari and Respondent No.5, whose name in the cause title is shown only as Smt. Usha, but her full name is Dasar Usha WP No.100421/2022 :8: Mahesh were the contestants for the post of President and filed their nomination papers for the position of President.
6. Respondent No.6, whose name is shown as Smt. Sunanda in the cause title, whose full name is Smt. Sunanda Prakash Bakale and Smt. Shakuntala, as shown in cause title as Petitioner No.2, whose full name is Shakuntla Hollebasappa Akki, filed nomination for the Vice-President.
7. It is stated that all the 37 members of the Municipal Council assembled in the Meeting Hall at 2.00 p.m., and the Election Officer informed the members present about the modality of voting by stating that he would call out the names of the members at which time, the members would have to signify their preference and or vote by show of hands and after that sign the election proceedings confirming the vote in respect of a particular candidate. WP No.100421/2022 :9:
8. It is stated that a list of all the names of 37 members were prepared in quadruplicate (i) Two (2) for the purpose of voting for the President, one in the name of the Petitioner No.1 and the other in the name of Respondent No.5 (ii) Two (2) for the post of Vice-President, one in the name of Petitioner No.2 and the other in the name of Respondent No.6.
9. Respondent No.1 called out the names of the candidates and instructed the members who were present there to show their hands to fulfil the requirement of voting by show of hands, thus voting in favour of each of the candidates, and the aforesaid sheets were signed corresponding to their name signifying their vote.
10. The grievance of the Petitioners is that upon the voting process being completed, it was found that 19 persons had voted for Petitioner No.1 whereas 18 persons had voted for Respondent No.5 and WP No.100421/2022 : 10 : therefore, it was Petitioner No.1 who had to be declared as the successful candidate. However, instead of doing so , the Respondent No.1 has fraudulently manipulated the said documents and interchanged the same to make it appear as if 19 votes had been cast in favour of the Respondent No.5 and only 18 votes had been cast in favour of the Petitioner No.1. There is no dispute regarding the election of Petitioner No.2 and Respondent No.6.
11. Sri. Udaya Holla, learned Senior Counsel appearing for the Petitioners submitted that; 11.1. There is a fraud which the Respondent No.1- Election Officer has committed, inasmuch as the sheets recording the voting in favour of the Petitioner No.1 has been interchanged with that of Respondent No.5, thereby vitiating the entire process of elections. WP No.100421/2022 : 11 : 11.2. This act would require this Court to exercise jurisdiction under Article 226 of the Constitution of India to interfere with the election process and annul the election and direct fresh elections to be held for the post of President of the Municipal Council. 11.3. He submits that there is a clear and categorical admission made by the Respondents in their statement of objections, inasmuch as the Respondent No.1-Assistant Commissioner at paragraph No.10 has clearly accepted it. The said paragraph is hereunder extracted for easy reference:
"10. It is submitted that the Respondent No.1 had prepared proceeding sheets in the name of Respondent No.5 and Petitioner No.1 for the post of President and similarly proceedings sheets were also prepared in respect of election to the Vice President is concerned. As the Respondent No.5 who had filed her nomination at the first instance her name was called, the voters were requested to cast their votes by showing (raising) their hands. After counting the hands, it was 19 voters who casted their votes in favour of Respondent No.5. After that name of the Petitioner No.1 was called and the same WP No.100421/2022 : 12 : voting process was followed and also after counting the hands, it was 18 voters who casted their votes in favour of Petitioner No.1. After taking of signatures of voters by the clerical staff, the same was submitted before the Respondent No.1. And thereafter, by observing those sheets, Respondent No.1 came to know that, due to oversight, the proceeding sheets pertaining to Respondent No.5 and Petitioner No.1 were interchanged and the same was not intentional. So, the sheets were exchanged in between Respondent No.5 and Petitioner No.1. But the voters had casted their votes to their candidate when the name of particular candidate was called out. The said exchange of sheets occurred due to over sight and it was not intentional. Thereafter, the Returning Officer after due notice to all the voters present at the hall, made necessary changes and affixed the said proceeding sheets in the original register and put his signature. The Respondent No.1 has conducted the proceedings in accordance with law and nothing has been manipulated as alleged by the Petitioners."
11.4. He also relies on paragraph No.3 of the application for vacating stay order. The said paragraph is reproduced hereunder for easy reference:
"3. It is humbly submitted that, in the proceeding sheet, wherein the signature of Members were taken, there is only clerical mistake pointed out during the election and the correction was carried out by intimating to all the voters present during the proceeding. They have agreed for the said correction, so after taking permission from all the Councillors and voters correction was carried out. The 1st WP No.100421/2022 : 13 : Respondent has put his signature for the said correction and nothing has been manipulated as alleged by the Petitioners."
11.5. In the light of the statements made in these two paragraphs, he submitted that the admission which has been made in the statement of defence in the vacate stay application is sufficient enough to allow the petition since the interchange of the voting sheets has been categorically admitted by the Respondents. He also relies on paragraph Nos.27 & 28 of the statement of objections filed by Respondent Nos.5 and 6, which is reproduced hereunder for easy reference:
"27. That what is alleged by the Petitioners to be a manipulation of the results sheet was presumably only done because Petitioner No.1's name was inadvertently shown on page no.5 instead of Respondent No.5's name. Similarly, at page no.7, Respondent No.5's name was reflected instead of the Petitioner No.1's name. Therefore, presumably, to carry out this correction, Respondent No.1 has made necessary changes to the results sheet at Annexure 'C'. It is denied that there is any manipulation of the results as alleged by the Petitioners.WP No.100421/2022 : 14 :
28. That there is no manipulation of the results sheet as alleged. There appears to be minor a correction made thereto, as a consequence of a possible inadvertent error due to which instead of Respondent No.5's name, Petitioner No.1's name was stated at page no.5. Likewise, instead of Petitioner No.1's name, Respondent No.5' name was probably stated at page no.7. Therefore, there is no manipulation of the results sheet at Annexure 'C' as alleged."
11.6. Referring to the same, he submits that the fact of correction and or interchange has been admitted, though it is now sought to be downplayed as a minor correction and an inadvertent error. He submits that this is done purely to favour Respondent No.5 at the cost of Petitioner No.1. This kind of manipulation goes to the root of the electoral process requiring this court to exercise its extraordinary powers under Article 226 of the Constitution of India.
11.7. He relies upon the decision of the Apex Court in the case of Harnek Singh Vs. Charanjit Singh and others reported in (2005) 8 SCC WP No.100421/2022 : 15 : 383, more particularly paragraph No.16 thereof to contend that despite Article 243-O of the Constitution, this Court would have the jurisdiction as seen in that case, wherein despite the existence of Article 243-O, the Apex Court has held that a Constitutional Court would have the power to interfere in the Electoral matters.
11.8. He submits that Article 243-O is in parimateria with Article 243-ZG, inasmuch as all the words are identical, except regarding the body to which the election relates to, namely, Article 243-O, which relates to election to Panchayats where Article 243-ZG, relates to elections to Municipalities. 11.9. Irrespective of elections being to the Panchayats or the Municipalities, 243-O and 243-ZG being identical to each other, the decision in Harnek Singh's case would apply. WP No.100421/2022 : 16 : This Court would have the power to excise judicial review of the actions on the part of the Electoral Officers and the Petitioners ought not to be relegated to an election petition.
11.10. He also relies on the decision of the Madras High Court in the case of All India Anna Dravida Munnetra Kazhagam Vs. The State Election Commissioner, reported in 2007 SCC Online Mad 49, more particularly paragraph No.2, 185, 242, 243 and 253 thereof, which are reproduced hereunder for easy reference:
"2. On the day i.e ., 13.10.06, when polling for election of 155 Ward Commissioners of Chennai Municipal Corporation were in progress, a special mention was made on behalf of one of the Petitioner, "All India Anna Dravida Munnetra kazhagam' (hereinafter referred to as AIADMK) to the Honourable the Chief Justice for immediate hearing of the Public Interest Litigation onthe ground that the ruling partymen, i.e ., personnel of the 5th Respondent, Dravida Munnetra Kazhagam' (hereinafter referred to as DMK), are committing serious irregularities, engaged WP No.100421/2022 : 17 : goondas, caused large scale violence and after attacking candidates, partymen and others, captured most of the polling booths in all 155wards. On an urgent mention, on 13.10.06 itself, the case was taken up and Respondents were served with notice and on their appearance the case was heard in detail at the stage of admission for its final disposal.
185. On carefully going through the orders pronounced by the learned Judges and keeping in view the submissions made by the counsels who are appearing for the writ Petitioners or the Respondents, it is apparent that by and large the following main questions are required to be considered:
Whether the Election Commission had the jurisdiction to direct re-polling, if so the scope and ambit of such jurisdiction?
Whether in view of the provisions contained in Article 243-ZG of the Constitution of India, the High Court has any jurisdiction to entertain and decide any petition under Article 226?
Whether in view of availability of the remedy of filing Election Petition under the statute before the Election Tribunal, the High Court can decide such matters under Article 226 of the Constitution?
Whether the High Court can exercise any such jurisdiction when disputed questions of fact arise for determination?
Whether the elected candidates were necessary parties?
Whether re-election should be directed to be held in all or any of the wards of Chennai Municipal Corporation?
WP No.100421/2022: 18 :
242. Keeping in view the lofty ideals of free and fair election, the Election Commission could not have been found fault with if it could have come to a conclusion that re-election was required in any or all of the wards. He was not expected to seek for evidence beyond all reasonable doubt, rather a preponderance of probability or even reasonable suspicion regarding the fairness of the poll could have justified taking adequate measures by directing re-polling. In such circumstances, he could or rather should have "erred" in order to uphold the fairness of the election process rather than acquiesce in continuing such tainted election no matter if some of the candidates were not actually guilty of direct booth capturing. It was the duty of the Election Commissioner to show to the rest of the country that the value and principle of free and fair poll was above everything else. If the "minions" of the election mechanism remain quiet, the "super authority", namely, the Election Commission, should have risen to the occasion. Instead of adopting an attitude of obduracy, it would have been better to act in order to avoid the possibility of the criticism that when Rome was burning Nero was fiddiing.
243. It has been recognised in Kesavananda Bharati's case, 1973 (4) SCC 225 by many of the Judges of the Supreme Court forming the majority that democracy is a basic right and free and fair poll has been considered to be an essential part of the democracy. Election is no longer considered as a mere statutory right, but it has been accorded the elevated status of a constitutional right and the actual casting of vote has been considered as a fundamental right of the freedom of expression. The Election Commission being the constitutional repository of the collective confidence WP No.100421/2022 : 19 : reposed by the State representing the entire citizens, is required to ensure free and fair poll so that the basic right is not affected. The primary question in such public interest litigation is therefore whether free and fair poll could be ensured.
253. In view of the above, my conclusions are as follows:
(1) The Election Commission has jurisdiction and authority, nay the duty to direct re-polling in any or all the wards, if he comes to the conclusion on the basis of materials on record that there is no free and fair election and there has been large scale of booth capturing. Such action can be taken by the Election Commission not only on the basis of the reports submitted by various election officers, but also on other materials including the newspaper reports. (2) Any decision taken by the Election Commission is subject to the judicial review by the High Court, of course within the known parameters of such jurisdiction. However, the High Court is required to be very circumspect in such matters and interfere only in rarest of rare cases. Where the High Court comes to the conclusion that free and fair election has not been held and there is a mockery of democracy and the Election Commission has failed in its duty to protect democracy by ensuring free and fair election, the High Court can in order to protect the concept of democracy, interfere in such matters, even after the election process is over, notwithstanding the fact that alternative remedy may be available and notwithstanding the fact that some disputed questions are required to be decided. This again would obviously depend upon the facts and circumstances of each case and such jurisdiction is to be exercised in rarest of WP No.100421/2022 : 20 : rare cases where the monstrosity of the situation so compels.
(3) Since the Election Commission while dealing with such matters can depend upon newspaper reports, the High Court, while dealing with such matters arising from the decision of the Election Commission, can similarly place reliance upon the newspaper reports in conjunction with other materials on record.
(4) In the peculiar circumstances of this case, which have already been discussed, the contention that successful parties should have been impleaded in the Writ Petitions cannot be accepted. (5) The submission made by the learned counsels for the Petitioners that fresh election should be directed to be held in respect of other wards not included in the order of F.M. Ibrahim Kalifulla, J. cannot be accepted and the election to 100 wards specified in Notification dated 29.1.2007 can be held on the scheduled date.
(6) In view of the conclusion regarding Ward No. 53, there need not be fresh election in respect of such Ward No. 53 and the certificate of election issued to him by the Election Commission need not be recalled."
11.11. Relying on the same, he submits that, the High Court would have the power of judicial review over an Electoral process. 11.12. He also relies on the decision of the Bombay High Court, in the case of Baburao S/o. WP No.100421/2022 : 21 : Kalu Koli Vs. State of Maharashtra and others, reported in 2007 SCC Online Bom 909 more particularly paragraph Nos.23, 28, 29 and 30, which are reproduced hereunder for easy reference:
"23. The provisions of Article 243-0 of the Constitution read thus:
"243-O. Bar to interference by Courts in electoral matters: - Notwithstanding anything in this Constitution-
(a) the validity of any law relating to the delimitation of Constituencies or the allotment of seats to such Constituencies, made or purporting to be made under Article 243K, shall not be called in question in any Court;
(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".
28. In the result, the writ petition is allowed. We hold that the elections held on 30- 8- 2005 to the Village Gram Panchayat Jalod, Taluka Amalner, District Jalgaon are vitiated and are declared to be null and void. The election results of the said elections declared on 30-8-2005 by the Returning Officer are quashed and set aside.
29. We direct the Respondent No. 2 - Collector Jalgaon to hold fresh elections of the Village Gram Panchayat Jalod, Taluka Amalner, for the remainder period, on the basis of the final notification issued on 15-7-2005 under WP No.100421/2022 : 22 : Rule 5(1) of the Rules, 1966 strictly in accordance with law.
30. We further direct the Respondent - Collector Jalgaon to initiate enquiry against the employees who were responsible for interpolation and manipulation of the Notification issued by the Collector, in case not earlier initiated. In case the departmental enquiries were already initiated the same be completed within 3 months from today. In case the staff members involved in the interpolation of the record are found to be guilty then such employees shall be dealt with severely under the law. A report in this regard shall be presented by the Collector to the State Election Commission.
11.13. Based on all the above, he submits that, the writ petition ought to be allowed.
12. Sri Prabhuling Navadagi, learned Advocate General appearing for Respondent Nos.1 to 3 would submit that, 12.1. Insofar as the facts leading up to the elections there is no dispute, however, the process and procedure of election which happened, the interpretation given by Sri. Udaya Holla, learned Senior Counsel is not correct. WP No.100421/2022 : 23 : 12.2. Sub-Rule 3 of Rule 8 of the Rules require an election to be conducted by a show of hands, what is of importance is the show of hands, the subsequent portion of the said Rule only relates to the Ministerial Act of recording the votes in the elections which were held. The members have shown their hands in favour of Respondent No.5, but the recordal of the same was wrong, which is only a ministerial act, and was corrected, this correction not being material and or not affecting the election process as such, this Court ought not to exercise its power under Article 226 of Constitution of India and as such this court ought to relegate the Petitioners to the alternative and efficacious remedy of an election petition in terms of Rule 15 of the said Rules.
WP No.100421/2022: 24 : 12.3. He submits that the determinative test for the process of election is the show of hands and not the recordal in the Register. Even if it is assumed that there is any interchange of these documents, these being disputed questions of fact, this Court ought not to excise jurisdiction but relegate the parties to an election petition where detailed trial would have to be conducted and as such, he submits that the petition ought to be dismissed. 12.4. Learned Advocate General also refers to the sheets recording the votes cast in favour of Respondent No.5 at page 28 and 29 of the petition, more particularly at Sl.No.37, at page 29 and submits that, if the submission of Sri. Udaya Holla, learned Senior Counsel is accepted and these sheets were to be considered to record the votes cast in favour of Petitioner No.1 then, it would amount to WP No.100421/2022 : 25 : Petitioner No.1 having voted for Respondent No.5.
12.5. By referring to pages 30 and 31, more particularly Sl. No.31 at page 31, relating to the recordal of the votes cast in favour of Petitioner No.1, he submits that if the submission of Sri. Udaya Holla, learned Senior Counsel is accepted and these sheets were to be regarded as recording the votes in favour of Respondent No.5; it would amount to Respondent No.5 having voted in favour of Petitioner NO.1.
12.6. He, therefore, submits that, such a situation cannot even be contemplated when there are only two candidates contesting in the election and the fact that such a paradoxical situation would arise would indicate the mistake which has been committed by Respondent No.1 is a WP No.100421/2022 : 26 : genuine mistake and the said mistake was immediately rectified.
12.7. He further submits that, the elections to the Municipal Council happen on party lines, and all the members who have voted for each of the candidates have done so on party lines if the submission of Sri. Udaya Holla, learned Senior Counsel is accepted, then it would amount to persons from one party voting for the other party enblock which would probably result in their disqualification, which is not what has happened.
13. Sri. Vikram Huilgol, learned Senior Counsel appearing for Respondent Nos.5 and 6 would submit that;
13.1. Rule 15 of the said Rules have been formulated in terms of Section 42 (3) of the Karnataka Municipalities Act, 1964. The said WP No.100421/2022 : 27 : exercise of 42 (3) is reproduced hereunder for easy reference:
"(3) The election of the President or the Vice-President and the filling up of vacancies in the said offices and the determination of disputes relating to such election shall be in accordance with such rules as may be prescribed:
Provided that the authority to determine such election disputes shall be such judicial officer as may be prescribed."
13.2. These Rules having statutory force, the voting which has taken place by show of hands has culminated in the election of Respondent No.5, which election can only be challenged under Rule 15 of the said Rules and not by way of a writ petition. On these grounds, he submits that the petition is liable to be dismissed.
14. Sri. K.G.Raghavan, learned Senior Counsel who appears for Respondent No.7 to 23 who are stated to be the members of the Municipal Council who had voted in favour of Respondent No.5, who were WP No.100421/2022 : 28 : impleaded subsequent to the filing of the writ petition on an impleading application filed by them, would submit that;
14.1. The impleaded Respondents now being Respondents on record, have a right to be heard on all matters in the above petition; they being impleaded as a party-Respondent have equal right of audience in the present proceedings. They having voted for Respondent No.5 have a vested interest in seeing to it that the said election and result thereof are safeguarded and not annulled on the basis of the above petition, therefore, a voter in an election has a vested right to participate in any proceedings which have been filed in a Court of law and be heard in the said proceedings.
14.2. The only remedy to the Petitioners, is available under Rule 15, which remedy can be WP No.100421/2022 : 29 : exercised in terms of Rule 17 only if election results are materially affected by considering the grounds which have been raised in election petition, which ought to only relate to improper reception or refusal of a vote or non-compliance of the provision of the Act or any of the Rules.
14.3. There is no improper reception or refusal of the vote, what had happened was only a wrong recording of the name of the contestant on the top of the sheet, this recordal was rectified by interchanging the sheets which was accepted by all the members present and voting at the said election and as such, the result of the election having been ascertained by show of hands did not materially get affected by a wrong recording in the Register.
WP No.100421/2022: 30 : 14.4. He relies upon the decision of the Apex Court in the case of State of Goa Vs. Fouziya Imtiaz Shaikh reported in (2021) 8 SCC 401, more particularly paragraph No.51, 52, 68, 69 thereof, which are reproduced hereunder for easy reference:
51. In Kurapati Maria Das v. Ambedkar Seva Samajan28, the validity of a caste certificate came up for determination in a writ petition that was filed which challenged municipal elections made to a reserved constituency. In this context, this Court held: (SCC pp. 394-95, paras 18-22) "18. Regarding the bar of jurisdiction under Article 243-ZG(b), the learned counsel Shri Gagan Gupta submitted that the decision relied upon by the High Court as K. Venkatachalam v. A. Swamickan was applicable and, therefore, it could not be said that there was a bar to the entertainment of the writ petition under Article
226. The learned counsel supported the factual findings recorded by the High Court to the effect that the appellant was a Christian and, therefore, could not claim the status of a person belonging to the Scheduled Caste, more particularly, caste "Mala".
19. In the first place, it would be better to consider as to whether the bar under Article 243-
ZG(b) is an absolute bar. The article reads thus:
'243-ZG. (b) no election to any Municipality 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.' WP No.100421/2022 : 31 : At least from the language of clause (b), it is clear that the bar is absolute. Normally, where such a bar is expressed in a negative language as is the case here, it has to be held that the tone of clause
(b) is mandatory and the bar created therein is absolute.
20. This Court in its recent decisions has held the bar to be absolute. First such decision is Jaspal Singh Arora v. State of M.P. In this case. the election of the Petitioner as the President of the Municipal Council was challenged by a writ petition under Article 226, which was allowed setting aside the election of the Petitioner. In para 3 of this judgment, the Court observed: (SCC p. 595) '3. ... it is clear that the election could not be called in question except by an election petition as provided under that Act. The bar to interference by courts in electoral matters contained in Article 243- ZG of the Constitution was apparently overlooked by the High Court in allowing the writ petition. Apart from the bar under Article 243-ZG, on settled principles interference under Article 226 of the Constitution for the purpose of setting aside election to a municipality was not called for because of the statutory provision for election petition ....'
21. The second such decision is Gurdeep Singh Dhillon v. Satpal. In that decision, after quoting Article 243-ZG(b) the Court observed that the shortcut of filing the writ petition and invoking constitutional jurisdiction of the High Court under Articles 226/227 was not permissible and the only remedy available to challenge the election was by raising the election dispute under the local statute.
22. There is no dispute that Rule 1 of the Andhra Pradesh Municipalities (Decision on Election Disputes) Rules, 1967, specifically provides for challenging the election of Councillor or Chairman. It was tried to be feebly argued that this was a petition for quo warranto and not only for challenging the election of the appellant herein. WP No.100421/2022 : 32 : This contention is clearly incorrect. When we see the writ petition filed before the High Court, it clearly suggests that what is challenged is the election. In fact the Prayer clauses (b) and (c) are very clear to suggest that it is the election of the appellant which is in challenge."
52. In W.B. State Election Commission v. Communist Party of India (Marxist), the West Bengal State Commission issued certain directions extending the last date for submitting nominations by one day, after which the said order was recalled on the next day. A learned Single Judge of the High Court delivered a judgment in which the order cancelling the extension was quashed and the Commission was directed to issue a fresh notification extending the date for filing nomination. In obedience to this order, the. SEC issued a notification extending the date for filing of nominations on 21-4-2018. Writ petitions were then filed which were dismissed34 by a learned Single Judge, who declined to interfere with the election process. Ultimately. after fresh writ petitions were moved before a Single Judge of the Calcutta High Court, the Single Judge declined35 to give any further directions, more particularly, that the SEC be made to accept nominations already filed in electronic forms. The Division Bench, while disposing of the appeal, directed the SEC to accept nominations in electronic forms by those candidates who had submitted them on or before 3.00 p.m. on 23-4-2018. After setting out the relevant provisions of the Panchayat Elections Act, this Court held: (W.B. State Election Commission case, SCC pp. 155-56 & 158, paras 28-29 & 33) "28. The Panchayat Elections Act is a complete code in regard to the conduct of the poll and for the resolution of disputes concerning the validity of the election. Article 243-K entrusts the superintendence, direction and control over the conduct of all elections to the panchayats in the State Election Commission. Clause (b) of Article 243-O stipulates thus:
WP No.100421/2022: 33 :
'243-O. Bar to interference by courts in electoral matters .Notwithstanding anything in this Constitution -
(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.'
29. There is merit in the submission that the discipline which is mandated by the provisions of the Constitution and enforced by the enabling State law on the subject must be maintained. Any dispute in regard to the validity of the election has to be espoused by adopting a remedy which is known to law, namely, through an election petition. It is at the trial of an election petition that factual disputes can be resolved on the basis of evidence. This principle has been consistently adhered lo in decisions of this Court. In Boddula Krishnaiah, a three-Judge Bench adverted to the decisions of the Constitution Bench in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency and in Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman. After referring to Ponnuswami5, it was observed:
(Boddula Krishnaiah case27, SCC pp. 419-20, para
8) '8. In N.P. Ponnuswami v. Returning Officer, Namakkal Constituency a Constitution Bench of this Court had held that having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognised to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over so that the election proceedings may not be unduly retarded or protracted. In conformity with the principle, the scheme of the election law is that no significance should be attached to anything which does not affect the "election"; and if any irregularities are committed while it is in progress WP No.100421/2022 : 34 : and they belong to the category or class which under the law by which elections are governed, would have the effect of vitiating the "election" and enable the person affected to call it in question, they should be brought up before a Special Tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress.' The binding principle must be followed.
33. For these reasons. we are of the view that challenges in regard to the validity of the elections to the uncontested seats in the panchayats. Panchayat Samitis and Zila Parishads must also be pursued in election petitions under Section 79(1) of the Panchayat Elections Act. We leave it open to any person aggrieved to raise a dispute in the form of an election petition in accordance with the provisions contained in the Panchayat Elections Act. In exercise of the power conferred by Article 142, we direct that the period of 30 days for filing election petitions in respect of the uncontested seats shall commence from the date of the publication of the results in the Official Gazette."
68. A conspectus of the aforesaid judgments in the context of municipal elections would yield the following results:
68.1. Under Article 243-ZG(b), no election to any municipality can be called in question except by an election petition presented to a Tribunal as is provided by or under any law made by the legislature of a State. This would mean that from the date of notification of the election till the date of the declaration of result a judicial hands-off is mandated by the non obstante clause contained in Article 243-ZG debarring the writ court under Articles 226 and 227 from interfering once the election process has begun until it is over. The constitutional bar operates only during this period.
It is therefore a matter of discretion exercisable by a writ court as to whether an interference is called WP No.100421/2022 : 35 : for when the electoral process is "imminent" i.e the notification for elections is yet to be announced.
68.2. If, however, the assistance of a writ court is required in subserving the progress of the election and facilitating its completion, the writ court may issue orders provided that the election process, once begun, cannot be postponed or protracted in any manner.
68.3. The non obstante clause contained in Article 243-ZG does not operate as a bar after the Election Tribunal decides an election dispute before it. Thus, the jurisdiction of the High Courts under Articles 226 and 227 and that of the Supreme Court under Article 136 of the Constitution of India is not affected as the non obstante clause in Article 243-ZG operates only during the process of election.
68.4. Under Article 243-ZA(1), the SEC is in overall charge of the superintendence, direction and control of the preparation of electoral rolls, and the conduct of all municipal elections. If there is a constitutional or statutory infraction by any authority including the State Government either before or during the election process, the SEC by virtue of its power under Article 243-ZA(1) can set right such infraction. For this purpose, it can direct the State Government or other authority to follow the Constitution or legislative enactment or direct such authority to correct an order which infracts the constitutional or statutory mandate. For this purpose, it can also approach a writ court to issue necessary directions in this behalf. It is entirely up to the SEC to set the election process in motion or, in cases where a constitutional or statutory provision is not followed or infracted, to postpone the election process until such illegal action is remedied. This the SEC will do taking into account the constitutional mandate of holding elections before the term of a municipality or Municipal Council is over. In extraordinary cases, the SEC may conduct elections after such term is over, only for good reason.
WP No.100421/2022: 36 :
68.5. Judicial review of a State Election Commission's order is available on grounds of review of administrative orders. Here again, the writ court must adopt a hands-off policy while the election process is on and interfere either before the process commences or after such process is completed unless interfering with such order subserves and facilitates the progress of the election.
68.6. Article 243-ZA(2) makes it clear that the law made by the legislature of a State, making provision with respect to matters relating to or in connection with elections to municipalities, is subject to the provisions of the Constitution, and in particular Article 243-T, which deals with reservation of seats.
68.7. The bar contained in Article 243-ZG(a) mandates that there be a judicial hands-off of the writ court or any court in questioning the validity any law relating to delimitation of constituency or allotment of seats to such constituency made or purporting to be made under Article 243-ZA. This is by virtue of the non obstante clause contained in Article 243-ZG. The statutory provisions dealing with delimitation and allotment of seats cannot therefore be questioned in any court. However, orders made under such statutory provisions can be questioned in courts provided the statute concerned does not give such orders the status of a statutory provision.
68.8. Any challenge to orders relating to delimitation or allotment of seats including preparation of electoral rolls, not being part of the election process as delineated above, can also be challenged in the manner provided by the statutory provisions dealing with delimitation of constituencies and allotment of seats to such constituencies.
68.9. The constitutional bar of Article 243- ZG(a) applies only to courts and not the State WP No.100421/2022 : 37 : Election Commission, which is to supervise, direct and control preparation of electoral rolls and conduct elections to municipalities.
68.10. The result of this position is that it is the duty of the SEC to countermand illegal orders made by any authority including the State Government which delimit constituencies or allot seats to such constituencies, as is provided in Proposition 68.4 above. This may be done by the SEC either before or during the electoral process, bearing in mind its constitutional duty as delineated in the said proposition.
69. Applying the law to the facts of the present case, the first important thing to be noted is that the constitutional bar contained in Article 243-ZG(a) does not apply to the facts of this case. As has correctly been pointed out by Shri Laud, the judgment in Anugrah Narain Singh v. State of U.P. would apply as the Goa Municipalities Act does not contain any provision akin to Section 10(2) or Section 10(4) of the Delimitation Commission Act, 1962 that was highlighted in Meghraj case4, providing that orders of the Delimitation Commission have the force of law. This being the case, the first and foremost roadblock that has been put forward by the learned Solicitor General has been cleared. No fault can be found with the Division Bench1 of the High Court in ignoring any constitutional bar in arriving at the conclusion that the 4-2-2021 order is illegal and ultra vires the provisions of Article 243-T of the Constitution of India read with Sections 9 and 10 of the Goa Municipalities Act. On merits, it is important to note that Shri Tushar Mehta, learned Solicitor General, did not advance any argument that the reservation of seats for women and OBCs was in accord with the provisions of the Constitution and the Goa Municipalities Act. Indeed, even otherwise, we do not find fault with the Division Bench judgment1 in its conclusion that a fraction has to be worked upwards whatever that fraction be, given the mandatory language of Article 243-T of the Constitution which provides for reservation for WP No.100421/2022 : 38 : women which shall not be less than one-third. Also, the findings of the High Court on OBC reservation not complying with the mandate of Section 9(2)(bb) in that in several councils it was below 27% cannot be faulted. The same goes for observations made on the 1 ST seat in Sanguem and non-application of the principle of rotation." 14.5. By relying on the above, he submits that, a judicial hands-off policy is mandated by the non-obstante clause in terms of Article 243- ZG, debarring the writ Court exercising jurisdiction under Articles 226 & 227 of the Constitution of India from interfering once the election process is started.
14.6. Therefore, this Court also ought to have a hands-off approach and not interfere in the election results declared and relegate the parties to the remedy of the election petition in terms of Rule 15 of Rules.
14.7. Though in the compilation of citations produced by Respondent Nos.7 to 23, there are six other decisions that have been WP No.100421/2022 : 39 : produced. He submits that, all those decisions have been dealt with in Fauzia Imtiyaz Shaik's case and as such he would not be referring to or relying upon the said decisions in particular or individually.
15. Sri. Harsha Desai appearing for Respondent No.4 submits that, he is appearing as a counsel for the Municipal Council and has no role to play in the matter and leaves the matter to be decided on the basis of the submissions made by the counsel for the Petitioners and the Respondents.
16. Sri. Udaya Holla, learned Senior Counsel in his re-
joinder submitted that;
16.1. Refers to and relies upon the decision of the Hon'ble Apex Court in Election Commission of India Vs. Ashok Kumar and others, reported in (2000) 8 SCC 216, more WP No.100421/2022 : 40 : particularly paragraph No.20 thereof, which is reproduced hereunder:
"20. Vide para 29 in Mohinder Singh Gill case the Constitution Bench noticed two types of decisions and two types of challenges: the first relating to proceedings which interfere with the progress of the election and the second which accelerate the completion of the election and acts in furtherance of an election. A reading of Mohinder Singh Gill case points out that there may be a few controversies which may not attract the wrath of Article 329(b). To wit:
(i) power vested in a functionary like the Election Commission is a trust and in view of the same having been vested in high functionary can be expected to be discharged reasonably, with objectivity and independence and in accordance with law. The possibility however cannot be ruled out where the repository of power may act in breach of law or arbitrarily or mala fide.
(ii) A dispute raised may not amount to calling in question an election if it subserves the progress of the election and facilitates the completion of the election. The Election Commission may pass an order which far from accomplishing and completing the process of election may thwart the course of the election and such a step may be wholly unwarranted by the Constitution and wholly unsustainable under the law.
In Mohinder Singh Gill case this Court gives an example (vide para 34). Say after the President notifies the nation on the holding of elections under Section 15 and the Commissioner publishes the calendar for the poll under Section 30 if the latter orders returning officers to accept only one nomination or only those which come from one party as distinguished from other parties or WP No.100421/2022 : 41 : independents, which order would have the effect of preventing an election and not promoting it, the Court's intervention in such a case will facilitate the flow and not stop the election stream. 16.2. By referring to the said paragraphs, he submits that, this Court could always exercise jurisdiction wherever the repository of power acts in breach of the law or acts in an arbitrary or malafide manner.
16.3. In the present case Respondent No.1 ought to have held a re-election instead of changing the relevant sheets, which is an improper exercise of power by the repository of power requiring this Court to interfere in the matter. 16.4. He also refers and relied on the decision of the Apex Court in the case of Ch. Subbarao Vs. Member, Election Tribunal, Hyderabad and others, reported in AIR 1964 SC 1027, more particularly paragraph WP No.100421/2022 : 42 : Nos.12 thereof, which is reproduced hereunder for easy reference:
"12. Though the learned Counsel for the appellant made several submissions, we propose to deal with only one, as the same is sufficient for the disposal of this appeal. This was that in the circumstances of the case there had been a substantial compliance with the requirements of S. 81(3). Before, however, dealing with it, it will be convenient to refer to some of the submissions made to us by the learned Solicitor-General appearing for the contesting Respondents. He submitted to us certain propositions which however we consider really unexceptionable. He said that an election petition was not to be equated to an election at law or in equity, but that as the rights were purely the creature of statute, if the statute rendered any particular requirement mandatory, the courts possessed and could exercise no dispensing power to waive non-compliance. We consider these propositions are sound and it is in the light of these basic positions that we shall proceed to consider whether the omission to add the words "true copy" in the copies which were admittedly exact copies of the petition, constituted a non-compliance with S. 81 (3) as to render the petition liable to be rejected under S. 90(3) of the Act."
16.5. Relying on the same, he submits that whenever there is a non-compliance of a particular requirement, a Constitutional Court can always exercise the power of judicial review and there is no requirement to WP No.100421/2022 : 43 : relegate a party to an election petition in terms of Rule 15.
16.6. By referring to Rule 17 of the Rules, and the Oxford Concise Dictionary, he submits that the word reception used in the said Rule is receiving of a vote and would include the recordal of the vote, Sub-Rule 3 of Rule 8 uses the word shall, which makes both the show of hands and the recordal thereof mandatory, both of them cannot be divorced from each other, the recordal of the vote also is a receipt of the vote and this having affected the results of the election, this court ought to intervene in the matter.
16.7. This, he submits, would also have to be done to give effect to the choice of the elected members of the Municipal Council, the admission being very clear that there is a interchange of the voting sheets. He refers to WP No.100421/2022 : 44 : and relied upon a Judgment of the Apex Court in the case of Bharati Reddy Vs. State of Karnataka and others, reported in 2018 (12) SCC 61, more particularly paragraph No.11 to 15 thereof which are reproduced hereunder for easy reference:
"11. We do not find any merit in this contention. We are of the view that a voter in a particular panchayat cannot be rendered remediless if he is aggrieved by the election of the Adhyaksha of the Panchayat. In Kesavananda Bharati v. State of Kerala, a thirteen-Judge Bench of this Court held that Article 368 of the Constitution does not enable Parliament to alter the basic structure or framework of the Constitution. The basic structure of the Constitution could not be altered by any constitutional amendment and it was held in unambiguous terms that one of the basic features is the existence of constitutional system in judicial review. This view was followed by a Constitution Bench in Minerva Mills Ltd. v. Union of India. In L. Chandra Kumar v. Union of India, a seven-Judge Bench of this Court has held that jurisdiction conferred upon the High Courts under Articles 226/227 of the Constitution and upon the Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and tribunals may perform a supplementary WP No.100421/2022 : 45 : role in discharging the powers conferred by Articles 226/227 and Article 32 of the Constitution of India. It has been held as under:
"78. ... We, therefore, hold that the power of judicial review over legislative action vested in the High Courts under Article 226 and in [the Supreme] Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded."
12. In I.R. Coelho v. State of T.N., a Bench of nine Judges has again held that power of judicial review is the part of the basic structure of the Constitution. The power to amend cannot be equated with the power to frame the Constitution.
13. It is thus clear that power of judicial review under Articles 226/227 of the Constitution is an essential feature of the Constitution which can neither be tinkered with nor eroded. Even the Constitution cannot be amended to erode the basic structure of the Constitution. Therefore, it cannot be said that the writ petition filed by Respondents 6 to 9 under Article 226 of the Constitution is not maintainable. However, it is left to the discretion of the court exercising the power under Articles 226/227 to entertain the writ petition.
WP No.100421/2022: 46 :
14. In Charan Lal Sahu relied upon by the learned Senior Counsel, the question for consideration was maintainability of an election petition presented by a candidate challenging the election to the Office of the President of India who has not been duly nominated under Section 14-A of the Presidential and Vice-Presidential Elections Act, 1952. This decision has no application to the facts of the present case.
15. As noticed above, though Respondents 6 to 9 are the voters are not the members of the Zila Panchayat. They are aggrieved by the election of the appellant to the office of the Adhyaksha. They cannot challenge the election of the appellant to the office of Adhyaksha by filing an election petition as they are not the members of the Zila Panchayat in question. In our view, a voter of the Zila Panchayat who is not a member cannot be denied an opportunity to challenge the election to the office of Adhyaksha under Articles 226/227 of the Constitution. Therefore, we hold that the writ petition filed by Respondents 6 to 9 before the High Court is maintainable."
16.8. By relying on the above he submits that the power of judicial review is an inviolable basic structure of the constitution and this Court even in election proceedings can exercise such inviolable power of judicial review to render justice in a particular matter. WP No.100421/2022 : 47 : 16.9. As regards Fauzia Imtiyaz Shaik's case, he refers to paragraph No.68.3, 68.4 and 68.5 (which are reproduced herein above) to contend that the embargo, if any, is only during the actual election process and the said embargo does not apply either prior to the election or after the election is held.
17. Since there were some new citations which were relied upon by Sri. Udaya Holla, learned Senior Counsel during the course of his arguments, an opportunity was provided to the counsels appearing for the Respondents to give their rebuttal.
18. Sri. K.G.Raghavan, learned Senior Counsel once again reiterated the decision of the Apex Court in Fauzia Imtiyaz Shaik's case and submitted that there is an embargo on this Court to exercise its jurisdiction.
WP No.100421/2022: 48 :
19. The learned Advocate General in his rebuttal submitted that, the Petitioners would have to stand on their own legs and they cannot rely upon the statements made in the objections and/or on the application to vacate the stay, even the said admission is no admission at all, inasmuch as it does not comply with the requirement of Section 17 of the Indian Evidence Act. Be that as it may, he submits that these issues would have to be looked into only in the election petition and not in the present writ petition. He again reiterates that the election was held by show of hands and the election results were properly announced requiring this Court not to interfere in the matter.
20. Based on the above submissions, in my considered opinion the following points would arise for determination;
(i) Whether a voter at election can be permitted to address arguments on merits of the matter and or their WP No.100421/2022 : 49 : presence be restricted only to support the case of the candidates, who are parties to these proceedings?
(ii) Whether there is any embargo on this Court to exercise powers under Article 226 of the Constitution of India in all election matters or could this Court exercise powers in certain situation, if so what?
(iii) Can this Court if at all were to exercise the power of judicial review under Article 226, look into the factual aspects insofar as they are not controverted and or they are admitted that is to say there being no enquiry required to be made in that regard?
(iv) Whether in the facts and circumstances of this case, there is requirement for this Court to intercede in this matter?
(v) What order?
21. I answer the above points as under;
22. Answer to Point No.1: Whether a voter at election can be permitted to address arguments on merits of the matter and or their presence be restricted only to support the case of the candidates, who are parties to these proceedings? WP No.100421/2022 : 50 : 22.1. Initially, when the petition was filed the Respondents arraigned were the government entities and the persons who were declared to be successful. Subsequently an impleading application came to be filed on 16.02.2022 by 17 councillors of Gadag-Betageri Municipal Council, seeking to be impleaded in the above proceedings. All the affidavits are verbatim and identical. Each of them have stated that, they had voted for Respondent No.5 and Respondent No.6 for President and Vice President, respectively and wanted to place on record the said affidavit since it is the contention of the Petitioners that these impleading applicants have voted for the Petitioner. They have contended that, in the event of outcome of the result in favour of the Petitioners and against the Respondents, their rights would be affected and as such they WP No.100421/2022 : 51 : wanted to come on record so that their narrative regarding the case be heard. 22.2. When the matter was taken up for hearing on 21.02.2022, a co-ordinate Bench of this Court observing that the said impleading applicants wanted to come on record to place on record that they have voted for the 5th Respondent and not for the first Petitioner and since the same was not seriously contested by the Petitioners, the applicants were permitted to be impleaded as additional Respondents and were permitted to rely upon the affidavit filed in support of the application or to file a separate statement of objections. 22.3. It is pursuant thereto that the matter was taken up for hearing on 02.03.2022 and 03.03.2022.
WP No.100421/2022: 52 : 22.4. In the impleading application that had been filed, the only contention raised by the impleading applicants was that they had voted for Respondent No.5 and not for the Petitioner No.1 and it is this fact that they wanted to bring on record which is what the co-ordinate Bench of this Court observed and the impleading application came to be allowed. 22.5. However, during the course of arguments, Sri. K.G. Raghavan, learned Senior Counsel contended that, since they have been impleaded as party Respondents, they have to be given equal opportunity of being heard, even on merits of the matter and that they could also make their submissions on the merits of the matter including the law applicable, procedure followed, etc., and it is in pursuance of the same, that the aforesaid WP No.100421/2022 : 53 : arguments as recorded above were addressed.
22.6. The election which is the subject matter of the present petition is as regards the election of the President and the Vice President of a Municipal Council, wherein 17 voters have come on record.
22.7. There are various other elections which are held as regards the election of the councillor himself, election of a member of Legislative Assembly, member of Parliament, etc., Though in the present case, there are only 37 voters, out of which 17 voters have come on record. In the other elections, there could be thousands if not lakhs of voters who participate in the electoral process. 22.8. In my considered opinion if the arguments of Sri. K.G.Raghavan, Senior Counsel is WP No.100421/2022 : 54 : accepted, the same would result in a chaotic situation, where the voters, for example, in an election for a member of Parliament numbering lakhs would want to come on record and address arguments. That would result in a complete derailing of the judicial process, since each of those persons might be required to be heard. It is a different matter in the present case, all the persons have come on record through one counsel and one Senior Counsel is addressing the arguments on their behalf which may not be the situation in another case.
22.9. This would be the situation both as regards the Petitioners and or the Respondents, inasmuch as there could be thousands or lakhs of people wanting to come on record to support the Petitioners and there could be WP No.100421/2022 : 55 : thousands or lakhs of people wanting to support the case of the Respondents. 22.10. This Court cannot lose sight of the enormous possibilities that may arise if this Court were to accept the submission made by Sri. K.G.Raghavan, the learned Senior Counsel. 22.11. In effect, what is under challenge is the election process. The aggrieved parties have filed the petition against the governmental agencies and the successful candidates. In such a situation, the parties on record can well prosecute and defend the matter without requiring the voters to come on record in order to support either the Petitioners or the Respondents, who have contested in the elections.
22.12. In my considered opinion, it is not contemplated nor permissible for the voters to WP No.100421/2022 : 56 : come on record and claim to address arguments on the merits of the matter, if they want to assist any of the parties, they can well do so outside the Court and furnish any information, documents or citations to the contesting parties.
22.13. Hence, I answer point No.1 by holding that a voter of an election cannot be permitted to address their arguments on the merits of the matter and or claim to assist this Court. 22.14. Since the Respondents are already brought on record, they can only to be permitted to assist the candidates who are parties to the proceedings not by their submissions but by providing assistance to the counsels who are appearing for those parties.
WP No.100421/2022: 57 :
23. Answer to Point No.2: Whether there is any embargo on this Court to exercise powers under Article 226 of the Constitution of India in all election matters or could this Court exercise powers in certain situations, if so what? 23.1. Sri. Udaya Holla, learned Senior counsel has relied on the decision in Harnek Singh's case more particularly paragraph No.16 thereof to contend that, despite the existence of Article 243-O, a constitutional Court would have the power to interfere in electoral matters. He has also relied on the AIADMK's case to contend that the election commission or the electoral Officer as a duty to direct re- polling at any wards or constituency, if they were to come to conclusion that there is no free and fair election, which decision would be subject to the judicial review of the High Court and the High Court, if it were to come to the conclusion that free and fair election has not been held and or that there is a mockery of WP No.100421/2022 : 58 : democracy and or the Election Commission has failed to protect the democracy, even after the election process is over and even though an alternative remedy may be available, by exercising the power of judicial review this court could set right any mistakes committed.
23.2. He also relied on Baburao's case supra to contend that this Court would have the power of judicial review and the same is not ousted. 23.3. Though the counsel of the Respondent Nos.5 and 6 has not in particular referred to any decision, the impleading applicants have placed certain decisions on record. The same having been placed on record, this Court is bound to take cognizance of the applicable law.
WP No.100421/2022: 59 : 23.4. In Fauzia Imtiyaz Shaik's case, the Apex Court after considering almost all the decisions relating to the elections has at paragraph No.68 of the said Judgment encapsulated the criteria that could be taken into consideration by the High Court in order to exercise the power of judicial review or not. 23.5. In terms of paragraph No.68.1 thereof, a High Court is required to follow a judicial hands-off policy from the date of notification of the election till the date of declaration of the result, but has however held that, it is left to the sound discretion of the Court to exercise the jurisdiction when the electoral process is eminent i.e. notification for the election is yet to be announced.
23.6. The Apex Court has also provided for the exercise of jurisdiction, where such exercise would result in subserving the progress of the WP No.100421/2022 : 60 : election and facilitating its completion. Thus, from the above, it is clear that, the jurisdiction under Article 226 and 227 of the Constitution of India should preferably not be exercised from the date of notification till the results are announced.
23.7. Thus, there is no embargo for the exercise of the powers under Article 226 of the Constitution of India, in all election matters as sought to be contended by the learned Advocate General for the State and Sri. Vikram Huilgol for the successful candidates. 23.8. The other contention of the learned Advocate General is that, there is an alternative remedy of election petition in terms of Rule 15 of the aforesaid Rules. It is a different matter to say that there is an alternative remedy and it is completely different to say that there is an embargo on this Court to exercise the WP No.100421/2022 : 61 : jurisdiction. Whenever there is an alternative remedy, this Court can, despite the existence of such an alternative remedy, exercise the jurisdiction, if this Court were to come to a conclusion on the facts and conspectus of the case that intervention of this Court is required.
23.9. As held by the Apex Court in Fauzia Imtiyaz Shaik's case and AIDMK's case, the same is left to the sound discretion of the Court exercising powers under Articles 226 & 227 of the Constitution of India.
23.10. Hence, I answer point No.2 by holding that, there is no embargo as such on this Court to exercise power under Article 226 of the Constitution of India in all election matters, however a judicial hands-off policy is applicable from the date of issuance of the notification of the election to the completion WP No.100421/2022 : 62 : of the election. There is no hands-off policy which would be applicable prior to the notification or subsequent to the announcement of the results. In all such cases, it is left to the sound discretion of the judge concerned to decide whether he ought to exercise the powers of judicial review or not.
24. Answer to Point No.3: Can this Court, if at all were to exercise the power of judicial review under Article 226, look into the factual aspects insofar as they are not controverted and or they are admitted that is to say there being no enquiry required to be made in that regard?
24.1. It is trite law that in a proceedings under Article 226 of the Constitution of India, the Constitutional Court would not normally entertain matters relating to disputed question of facts and as such, the exercise of jurisdiction under Article 226 of the Constitution is judicially restricted to situation WP No.100421/2022 : 63 : where the facts are uncontroverted and or where there are not many disputed Material facts. This Court would normally decide the matters on the basis of the facts which have been stated in the affidavits filed and if there are serious disputes as regards the said facts requiring either of the parties to establish the same, normally this Court would not exercise its jurisdiction.
24.2. The statutory Rule would apply equally to the election matters and this Court would normally exercise the jurisdiction only in the situations where the facts are uncontraverted and or there are no disputed facts as such. 24.3. I answer point no.3 by holding that if this Court were to exercise the power of judicial review under Article 226, it should normally not make an enquiry into disputed facts, but could however look into the factual aspects WP No.100421/2022 : 64 : insofar as they are not controverted and or they are admitted.
25. Answer to Point No.4 : Whether in the facts and circumstances of this case, there is requirement for this Court to intercede in this matter? 25.1. In the light of the above finding, it would be required by this Court, as observed by the co- ordinate Bench of this Court on 21.02.2022, to ascertain if the Petitioners have established egregious fraud and if such fraud is established, should the Court intervene under Article 226 of the Constitution of India. 25.2. The facts relating to the above matter have been stated herein above. As regards the election of Respondent No.6, the same has been given up by the Petitioners and as such, it is not in question, it is only the election of the Petitioner No.1 and Respondent No.5 which is in issue.
WP No.100421/2022: 65 : 25.3. The contention of Sri. Udaya Holla, learned Senior Counsel is that, even as per the admissions made by Respondent No.1 at paragraph No.10 of the statement of objections, that due to oversight the proceedings sheets pertaining to the Respondent No.5 and Petitioner No.1 were interchanged and therefore, the same were exchanged in between Respondent No.5 and Petitioner No.1. The same being due to oversight, the Returning Officer after due notice to all voters present at the Hall made necessary changes and affixed the said proceedings sheet in the original register and put his signature. The admission made in paragraph No.3 of the vacating stay application to the similar effect would lead to the inescapable conclusion that there is a manipulation of the documents requiring the WP No.100421/2022 : 66 : election to be set aside and fresh election to be held.
25.4. If the facts were limited to the above and there was an exchange and or interchange made of the election sheets/voting sheets, the same in my considered opinion would have required for this Court to hold an election to be bad, since there would be no further requirement to go into the effect of such interchange or exchange, the same would amount to interpolation of the documents. 25.5. However, in the present case, the facts indicates that, if the submission of Sri. Udaya Holla, learned Senior Counsel is accepted, Petitioner No.1 would have voted for Respondent No.5 and Respondent No.5 would have voted for Petitioner No.1. Such a situation, in my considered opinion could never have occurred when Petitioner No.1 and WP No.100421/2022 : 67 : Respondent No.5 are fighting tooth and nail against each other.
25.6. Assuming that the Petitioner No.1 had voted for Respondent No.5, then the Petitioner No.1 would never have challenged the election of Respondent No.5 since the vote of the Petitioner No.1 has been given due effect to on the Respondent No.5 being the successful candidate. The fact that the Petitioner No.1 has challenged the election of Respondent No.5 would lead to the irresistible conclusion that the Petitioner No.1 has not voted for Respondent No.5. If that be so, then the statement of the Respondent No.1 that the voting sheets have got interchanged and the same having been replaced accordingly is required to be believed.
25.7. It is one thing to say that, there is an intentional manipulation and or fraud WP No.100421/2022 : 68 : committed and it is completely another thing to say that Respondent No.1 has acted in a negligent manner and or did not exercise due diligence or due care. The manipulation and fraud would require an intention to manipulate the documents and defraud the Petitioner No.1. Negligence or non-exercise of due care would not require such an intention. 25.8. In the present case, as observed above, the contention that there is a manipulation so as to deprive the Petitioner No.1 of the election cannot be accepted for the aforesaid simple reason that if the interchange of the voting sheets is accepted, then Petitioner No.1 is deemed to have voted for Respondent No.5 and vice-versa.
25.9. From the admission made in the statement of objections, the vacate stay application filed by Respondent No.1, it is clear that Respondent WP No.100421/2022 : 69 : No.1 did not exercise due diligence and has, in fact acted negligently. The same would in the light of the above not have an impact on the election of Respondent No.5, necessary action though would have to be initiated against the Respondent No.1.
25.10. In view of the above, I am of the considered view that, there is no aspect which has been established by the Petitioner to exercise the powers of judicial review under Article 226 of the Constitution of India, in the face of the existence of an alternative remedy, available to the Petitioner under Rule 15 of the aforesaid Rules.
26. Answer to Point No.5 : What order? 26.1. The writ petition stands dismissed. 26.2. Liberty is reserved to the Petitioners to take up necessary proceedings in terms of WP No.100421/2022 : 70 : Rule 15 of the Karnataka Municipalities President and Vice-President Elections Rules, 1965 or any other proceedings available under applicable law.
26.3. Respondent No.2 is directed to initiate such action as may be necessary against Respondent No.1 for the admitted negligence on the part of Respondent No.1 and submit a report to this court within a period of 90 days of the receipt of this order.
26.4. The observations made in the present matter are only restricted to the exercise of jurisdiction by this court, in the event of an election petition being filed, the same would be required to be considered without being influenced by any observations made herein.
WP No.100421/2022: 71 : 26.5. No order as to costs.
Sd/-
JUDGE SVH