Karnataka High Court
Heena Urooz vs Syeda Noor Fatima Zaidi on 28 July, 2023
-1-
NC: 2023:KHC-K:6083
MFA No. 201854 of 2022
C/W MFA No. 202002 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
MISCL. FIRST APPEAL NO. 201854 OF 2022 (MPA-)
C/W
MISCL. FIRST APPEAL NO. 202002 OF 2022
IN MFA NO.201854/2022
BETWEEN:
HEENA UROOZ
W/O. KHAJA MOINUDDIN
AGED 34 YEARS,
OCC. NIL,
R/O. E/6/11277, H.NO.B-666
NEAR RANGEEN MASJID
MARKET ROAD, MOMINPURA
KALABURAGI 585104
...APPELLANT
(BY SRI. RAVI B PATIL,ADVOCATE)
Digitally signed
by SHILPA R
TENIHALLI AND:
Location:
HIGH COURT
OF
KARNATAKA 1. SYEDA NOOR FATIMA ZAIDI
W/O. SYED MAZHAR AHMED ZAIDI
AGED 56 YEARS,
OCC.HOUSEHOLD
R/O. H.NO. 6-510 JAMAT KHANA
MOMINPURA
KALABURAGI 585104
2. ALIYA SHIREEN
W/O MOHAMMED ISMAIL,
AGED MAJOR,
-2-
NC: 2023:KHC-K:6083
MFA No. 201854 of 2022
C/W MFA No. 202002 of 2022
OCC.NIL,
R/O. SADAR MOHALLA, MOMINPURA,
ROSHAN MANDI,
KALABURAGI 585 104
3. MADHURI W/O SHIVAJI
AGED MAJOR,
OCC NIL,
R/O NO. E/8/4655
DOOR NO.8/465
LOHAR GALLI
KALABURAGI 585102
4. GOUSIYA BEGUM
W/O.SHAIK SALAUDDIN,
AGE. MAJOR,
OCC: NIL,
R/O. E/61317, SADAR MOHALLA
ROSHAN MANDI,
KALABURAGI 585104
5. PRIYANKA W/O. AMBRISH,
(D/O. AMBRISH)
AGED ABOUT 21 YEARS,
OCC: HOUSEHOD,
R/O. H.NO. 4-1906
SARAF BAZAR ROAD,
NEAR ANANDI AMBABAI TEMPLE,
OLD BHOWI GALLI,
MAKTAMPPUR
KALABURAGI 585104
6. THE ELECTION RETURNING OFFICER
WARD NO. 24 AND MUNICIPAL CORPORATION
KALABURAGI, (MAHANAGARA PALIKE KALABURAGI )
AND DEPUTY DIRECTOR
DEPARTMENT OF HANDLOOMS
AND TEXTILES ZILLAPANCHAYAT,
KALABURAGI 585104
...RESPONDENTS
(BY SRI.LIYAQAT FAREED USTAD, ADVOCATE FOR C/R1;
-3-
NC: 2023:KHC-K:6083
MFA No. 201854 of 2022
C/W MFA No. 202002 of 2022
SRI. ABDUL MUQHTADIR, ADVOCATE FOR R2;
SRI. SHIVASHARMA REDDY, ADVOCATE FOR R4;
SRI. GANESH S.KALBURAGI, ADVOCATE FOR R5;
SRI. AARTI PATIL, HCGP FOR R6;
V/O.DT. 15.03.2023 NOTE TO RESPONDENT NO.3 IS
DISPENSED WITH)
THIS MFA FILED UNDER SECTION 38 OF THE
KARNATAKA MUNICIPAL CORPORATION ACT, PRAYING TO
CALL FOR THE RECORDS IN ELECTION PETITION NO.1/2021
ON THE FILE OF ELECTION TRIBUNAL BEING THE III ADDL
DISTRICT AND SESSIONS JUDGE AT KALABURAGI AND TO
SET ASIDE THE JUDGMENT IN ELECTION PETITION
NO.1/2021 DATED 16.08.2022 PASSED BY THE ELECTION
TRIBUNAL BEING THE III ADDL DISTRICT AND SESSIONS
JUDGE AT KALABURAGI.
IN MFA NO. 202002 OF 2022
BETWEEN:
PRIYANKA W/O. AMBRISH
(D/O. AMBRISH)
AGE 22 YEARS
OCC: HOUSEHOLD
R/O. H.NO.4-1906
SARAF BAZAR ROAD
NEAR ANANDI AMBABAI TEMPLE
OLD BHOWI GALLI
MAKTAMPUR, KALABURAGI - 585 101
...APPELLANT
(BY SRI. GANESH S.KALABURAGI, ADVOCATE)
AND:
1. SYEDA NOOR FATIMA ZAIDI
W/O. SYED MAZHAR AHMED ZAIDI
AGED 56 YEARS,
OCC.HOUSEHOLD
-4-
NC: 2023:KHC-K:6083
MFA No. 201854 of 2022
C/W MFA No. 202002 of 2022
R/O. H.NO. 6-510, JAMAT KHANA
MOMINPURA
KALABURAGI 585104
2. ALIYA SHIREEN
W/O MOHAMMED ISMAIL,
AGED MAJOR,
OCC.NIL,
R/O. SADAR MOHALLA, MOMINPURA,
ROSHAN MANDI,
KALABURAGI 585 104
3. MADHURI W/O.SHIVAJI
AGED MAJOR,
OCC: NIL,
R/O NO. E/8/4655
DOOR NO.8/465
LOHAR GALLI
KALABURAGI 585102
4. HEENA UROOZ
W/O. KHAJA MOINUDDIN
AGED MAJOR
OCC. NIL, R/O. E/6/11277, H.NO.B-666
NEAR RANGEEN MASJID
MARKET ROAD, MOMINPURA
KALABURAGI 585104
5. GOUSIYA BEGUM
W/O.SHAIK SALAUDDIN,
AGE. MAJOR,
OCC: NIL,
R/O. E/61317, SADAR MOHALLA
ROSHAN MANDI,
KALABURAGI 585104
6. THE ELECTION RETURNING OFFICER
WARD NO.24 AND MUNICIPAL CORPORATION
KALABURAGI
(MAHANAGARA PALIKE KALABURAGI )
AND DEPUTY DIRECTOR
DEPARTMENT OF HANDLOOMS
-5-
NC: 2023:KHC-K:6083
MFA No. 201854 of 2022
C/W MFA No. 202002 of 2022
AND TEXTILES ZILLAPANCHAYAT,
KALABURAGI 585104
...RESPONDENTS
(BY SRI.LIYAQAT FAREED USTAD, ADVOCATE FOR R1;
SRI. ABDUL MUQHTADIR, ADVOCATE FOR R2;
SRI. RAVI B.PATIL, ADVOCATE FOR R4
SRI. SHIVASHARMA REDDY, ADVOCATE FOR R5;
SRI. AARTI PATIL, HCGP FOR R6;
RESPONDENT NO.3 SERVED)
THIS MFA FILED UNDER SECTION 38 OF THE
KARNATAKA MUNICIPAL CORPORATION ACT, PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE IN ELECTION
PETITION NO.1/2021 DATED 16.08.2022 PASSED BY THE
ELECTION TRIBUNAL BEING THE III ADDL DISTRICT AND
SESSIONS JUDGE AT KALABURAGI AND ETC.,
THESE APPEALS, COMING ON FOR DICTATING
JUDGMENT, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
MFA No.202002/2022 is filed by a returned candidate namely Smt. Priyanka at an election to the post of Councilor of Kalaburagi Municipal Corporation, Kalaburagi, challenging the order dated 16.08.2022 passed by the III Additional District and Sessions Judge, at Kalaburagi in Election Petition No.1/2021 by which, her election was set aside. -6-
NC: 2023:KHC-K:6083 MFA No. 201854 of 2022 C/W MFA No. 202002 of 2022
2. MFA No.201854/2022 is filed by one of the defeated candidates at the aforesaid election, for setting aside the order passed in the aforesaid Election Petition.
3. A notification dated 11.08.2021 was issued by the Election Commissioner notifying the election to the post of Councilors of the Municipal Corporation, Kalaburagi. There were six candidates who had filed their nominations and who were found to be eligible to contest in respect of the Ward bearing No.24.
4. A candidate named Mrs. Priyanka was sponsored by the Bharatiya Janatha Party, four other candidates were sponsored by other National Political Parties, while the sixth was an independent candidate. The elections were held on 03.09.2021 and the results were declared on 06.09.2021. The aforesaid candidate Mrs.Priyanka had secured 1587 votes, while Mrs. Syeda Noor Fatima Zaidi had secured 1027 votes, Mrs. Aliya Shireen had secured 594 votes, Mrs. Madhuri had secured 271 votes, Mrs. Heena Urooz had secured 47 votes, while Mrs.Gousiya Begum had secured 36 votes. Mrs. Priyanka was declared as a returned candidate in -7- NC: 2023:KHC-K:6083 MFA No. 201854 of 2022 C/W MFA No. 202002 of 2022 terms of the notification which was published in the Karnataka Gazette dated 23.09.2021.
5. Later, after the election notification was issued, an election petition was filed in E.P.No.1/2021 under Section 33 of the Karnataka Municipal Corporation Act, 1976 for the following reliefs:
"1) Set aside the election of respondent No.1 from Ward No.24 of Karnataka Municipality Corporation, Kalaburagi;
2) Declare the election of Mrs. Priyanka as Councilor from Ward No.24 of Karnataka Municipality Corporation, Kalaburagi as void;
3) Declare that Mrs. Syeda Noor Fatima Zaidi is duly elected as Councilor of Ward No.24 of Municipality Corporation, Kalaburagi having secured second highest votes."
6. It was alleged that the said Mrs. Priyanka, had declared her age as 20 years at page No.3 of her nomination and also in the affidavit, which was part of the nomination, but when it was submitted on 24.08.2021, she had declared her age as 21 years. Though, an objection was raised before -8- NC: 2023:KHC-K:6083 MFA No. 201854 of 2022 C/W MFA No. 202002 of 2022 the Returning Officer, at the time of scrutiny, he did not consider it, but accepted the nomination.
7. The election petition was opposed and later, the same was taken up for trial.
8. The Court considered the oral and documentary evidence placed before it and held that Mrs. Priyanka had furnished a bogus birth certificate showing her date of birth as 21.01.2000, though her actual date of birth was 21.10.2000. Consequently, in terms of the order impugned herein, it declared the election of Mrs. Priyanka as void and set aside her election and contemporaneously, it declared Mrs. Syeda Noor Fatima Zaidi who had secured the second highest votes, as duly elected from Ward No.24 of Municipal Corporation, Kalaburagi.
9. Being aggrieved by the aforesaid order, Mrs. Priyanka, has filed MFA No.202002/2022.
10. Another candidate who was defeated at the election namely Mrs. Heena Urooz has challenged the impugned order insofar as it declared Mrs. Syeda Noor -9- NC: 2023:KHC-K:6083 MFA No. 201854 of 2022 C/W MFA No. 202002 of 2022 Fatima Zaidi as a returned candidate having secured the second highest votes.
11. The contention of the learned counsel representing Mrs. Priyanka is that though the election of Mrs.Priyanka was set aside, the Election Tribunal could not have declared Mrs. Syeda Noor Fatima Zaidi as the returned candidate, on the ground that she had secured second highest votes in the election. He contended that there were six candidates who were in the fray and the votes cast in favour of Mrs. Priyanka were all valid votes and hence, the votes secured by Mrs. Priyanka could not be thrown out and Mrs. Syeda Noor Fatima Zaidi could not be declared as a returned candidate on the ground that she had secured highest votes. Learned counsel submitted that Mrs. Priyanka does not intend to contest the impugned order insofar as it relates to declaring her election as void.
12. Learned counsel representing Smt. Heena Urooz submitted that she too was one of the candidates who had contested the election and therefore, she too was interested in the out come of the election petition. Learned counsel
- 10 -
NC: 2023:KHC-K:6083 MFA No. 201854 of 2022 C/W MFA No. 202002 of 2022 contended that in the absence of any material to show that the election tribunal had found that Mrs. Syeda Noor Fatima Zaidi had secured the maximum valid votes, it could not have given a finding that Mrs. Syeda Noor Fatima Zaidi, having secured highest votes was duly elected. He submitted that the votes secured by Mrs. Priyanka were all valid votes and when there were more than two candidates in the fray, the concept of throwing out the votes and declaring the candidate who had secured next highest votes is not applicable.
12.1 He invited the attention of this Court to the judgment of Hon'ble Apex Court in the case of P.M.Muniraju Gowda Vs. Munirathna and others 1.
12.2. He also relied upon the judgment of Coordinate Bench of this Court in the case of Sudhir Nagesh Gadde Vs. Returning Officer, Belagavi and others.2. He therefore contended that the election tribunal could have only set aside the election of Mrs.Priyanka and could not 1 (2020) 10 SCC 192 2 2019 (1) AKR 806
- 11 -
NC: 2023:KHC-K:6083 MFA No. 201854 of 2022 C/W MFA No. 202002 of 2022 have declared Mrs. Syeda Noor Fatima Zaidi as a returned candidate.
13. Per contra, learned counsel appearing for Mrs. Syeda Noor Fatima Zaidi submitted that under Section 37 of the Karnataka Municipal Corporations Act, 1976, (henceforth referred to as 'Act' for short) the Court is vested with the jurisdiction to declare the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected.
13.1. He invited attention of this Court to Section 37(2) of the Act and contended that if the Court is of the opinion that but for the votes obtained by the returned candidate by corrupt practices, the petitioner or such other candidate would have obtained a majority of the valid votes, then the Court shall, after declaring the election of the returned candidate to be void, declare the petitioner or such other candidate as the case may be, to have been duly elected. He therefore, contended that Mrs. Syeda Noor Fatima Zaidi having secured a majority of the valid votes was entitled to be declared as a returned candidate and
- 12 -
NC: 2023:KHC-K:6083 MFA No. 201854 of 2022 C/W MFA No. 202002 of 2022 Election Court rightly declared her to be an elected candidate.
13.2. The learned counsel relied upon the judgment of the High Court of Judicature at Hyderabad for the State of Telangana and State of Andhrapradesh in the case of Mopuragundu Thippeswamy Vs. K.Eranna and Ors. - Election Petition No.32/2014 decided on 27.11.2018 which related to an election to the State Assembly from 275- Madakasira Legislative Assembly Constituency of Ananthpur District. Learned counsel invited attention of the Court to paragraph No.95 of the said judgment which reads as follows:
"95. As observed earlier, the first respondent got 76,601 votes and the petitioner got 61,965 votes. The first respondent was declared as elected Member of 275-Madakasira Legislative Assembly Constituency with a majority of 14,636 votes. Among all the candidates contested, the petitioner secured highest votes after the first respondent. Consequent upon the findings on Additional Issue, the petitioner is entitled to
- 13 -
NC: 2023:KHC-K:6083 MFA No. 201854 of 2022 C/W MFA No. 202002 of 2022 be declared as elected Member of 275-
Madakasira Legislative Assembly
Constituency. Accordingly, issue No.4 is
answered in favour of the petitioner and against the first respondent."
13.3. He therefore, contended that the votes secured by Mrs.Priyanka had to be thrown away and the next candidate who had secured highest number of votes had to be declared as the returned candidate. Learned counsel submitted that this finding of the Court was affirmed by the Hon'ble Apex Court in Civil Appeal No.11908/2018 vide judgment dated 12.12.2018. He next relied upon the judgment of High Court of Manipur in the case of Yumkham Erabot Singh Vs. Okram Henry Singh and Ors. - Election Petition No.2/2017 dated 15.04.2021 which too was an election petition filed before the High Court challenging the elections to the 15-Wangkhei Assembly Constituency. He relied upon the observations of the Manipur High Court in paragraph No.91 wherein it was held as follows:
- 14 -
NC: 2023:KHC-K:6083 MFA No. 201854 of 2022 C/W MFA No. 202002 of 2022 "91. Moreover, the alleged crime committed by the Respondent No.1 is relating with the smuggling of Narcotic Drugs which is one of the heinous crime against the society and the acts committed by the Respondent No.1 amounts to corrupt practice within the meaning of "Undue Influence" which is provided by the Section 123(2) of the RP, Act, 1951 and whatever votes obtained by the Respondent No.1 through undue influence are deemed to be wastes or invalid. As such, these two issues are answered in favour of the Petitioner.
13.4. The High Court of Manipur allowed the Election petition by declaring the election of respondent No.1 therein, as member of 15 -Wangkhei Assembly Constituency in the 11th Manipur Legislative Assembly as null and void and declared that the petitioner therein was duly elected as a member of 15-Wangkhei Assembly Constituency. He referred to the judgment of Hon'ble Apex Court in Civil Appeal No.1666/2021 decided on 17.11.2021 where the judgment of High Court of Manipur was upheld. He next referred to another judgment of High Court of Manipur in
- 15 -
NC: 2023:KHC-K:6083 MFA No. 201854 of 2022 C/W MFA No. 202002 of 2022 case of Houlim Shokhopao Mate Vs. Lorho S.Pfoze and Ors. - Election Petition No.1/2019 decided on 23.09.2022 which too was an election petition filed under Section 100 of Representation of People Act, 1951 challenging the elections from 2-Outer Manipur (ST) parliamentary Constituency. The learned counsel referred to the out come of the above case where after declaring the election to be null and void, the petitioner therein was declared to be duly elected. He next relied on the judgment of Hon'ble Apex Court in the case of Chandeshwar Saw Vs. Brij Bhushan Prasad and Ors. in Civil Appeal No.780/2020 decided on 28.01.2020 which related to recounting of votes for the election to the post of President of Gram Panchayat. Learned counsel invited the attention of the court to paragraph No.14 where the Hon'ble Apex Court after allowing the appeal issued a declaration under Section 140 of the concerned legislation that the election of the returned candidate was invalid and the appellant therein was declared as a returned candidate, he having secured the highest votes amongst the contesting candidates. Paragraph No.14 is cited, which reads as under:
- 16 -
NC: 2023:KHC-K:6083 MFA No. 201854 of 2022 C/W MFA No. 202002 of 2022 "14. Accordingly, this appeal succeeds. The impugned judgment and order is set aside.
Instead, the election case being E.C. No.08/2016 filed by the Appellant before the Election Tribunal is allowed. A declaration is issued under Section 140 of the Act that the election of Respondent No.1 as returned candidate is set aside being invalid, and instead we declare the Appellant/election Petitioner as having been duly elected having secured highest votes amongst the contesting candidates and 95 more valid votes than that of Respondent No.1 in the subject election."
13.5. He then relied upon the judgment of Coordinate Bench of this Court in the case of Reena Janardhana Vs. State of Karnataka and Ors. - MFA No.2980/2003 decided on 14.08.2003 which arose out of an election petition filed under Section 33 of the Karnataka Municipal Corporation Act and contended that Smt. Priyanka was not entitled to contest the elections as she was not qualified by age and had not attained the age of 21 years as on the date of filing the nomination. Learned counsel contended that the provisions under the Representation of Peoples Act, 1951,
- 17 -
NC: 2023:KHC-K:6083 MFA No. 201854 of 2022 C/W MFA No. 202002 of 2022 are in pari materia with the provisions of the Karnataka Municipal Corporation Act, 1976 and therefore, the ratio decidendi in the judgment of Telangana High Court as well as Manipur High Court cited above deserves to be accepted. Consequently, he contended the impugned order declaring the election of Smt. Syeda Noor Fathima Zaidi as the returned candidate cannot be sustained.
14. I have considered the submissions made by learned counsel for the petitioner, learned High Court Government Pleader and learned counsel for respondents.
15. Under Section 25(2) of the Karnataka Municipal Corporations Act, 1976, a person who is qualified to be a member of the State Legislature is qualified to contest the elections to the post of councilor of a Municipal corporation. However, if a person has attained the age of 21 years, he or she shall not be disqualified on the ground that he or she is less than 25 years to contest the election to the post of Councilor of Municipal Corporation. In the case on hand, though Smt. Priyanka claimed that she was 21 years old as on the date of submission of nomination, the documents
- 18 -
NC: 2023:KHC-K:6083 MFA No. 201854 of 2022 C/W MFA No. 202002 of 2022 placed on record namely, the birth certificate of Smt. Priyanka indicated that as on the date of filing nomination, she had not attained the age of 21 years, but was younger by a few months. Therefore, she was disqualified from contesting to the post of Councilor of Municipal Corporation.
16. This Court after perusing the records of the election Court, summoned the original record from the office of the Registrar of Births and Deaths and found that the birth certificate produced by Smt. Priyanka before the election tribunal showing her date of birth as 21.01.2000 was fabricated, while her correct date of birth was 21.10.2000. The Registrar of Births and Deaths who was summoned to the Court, accepted that the date of birth of Smt. Priyanka was 21.10.2000 and the birth certificate issued showing her date of birth as 21.01.2000 was fraudulent and bogus.
17. The marks card of Smt. Priyanka which was also exhibited as a document before the Election Tribunal also indicated her date of birth as 21.10.2000 and the same was not disputed by her. If that be so, she was not qualified as
- 19 -
NC: 2023:KHC-K:6083 MFA No. 201854 of 2022 C/W MFA No. 202002 of 2022 on the date of filing her nomination to contest to the post of councilor of the Municipal Corporation, Kalaburagi and the impugned order passed by the Election Court setting aside the election as void is just and proper and does not call for any interference.
18. Now coming to the question whether the Election Court was justified in declaring the candidate who had secured the highest number of votes as a returned candidate, the law in this regard is clear, inasmuch as the votes cast in favour of Mrs. Priyanka were all valid votes and there was no material before the Election Tribunal to come to a conclusion that the candidate who had secured the second highest votes had obtained the majority of the valid votes. The number of votes cast at the election was 3562 votes of which Smt. Syeda Noor Fatima Zaidi secured 1027 votes while Smt. Priyanka secured 1587 votes. If the interpretation as given by the learned counsel for Smt. Syeda Noor Fatima Zaidi that under Section 37(2)(b) of the Karnataka Municipal Corporations Act, 1976, is to be accepted, then, the impugned order must speak of the
- 20 -
NC: 2023:KHC-K:6083 MFA No. 201854 of 2022 C/W MFA No. 202002 of 2022 attempt made by the Court to come to an opinion that Smt. Syeda Noor Fatima Zaidi had obtained majority of the valid votes. Unfortunately, on a perusal of the impugned order, there is no reason assigned by the Election Tribunal to hold that Smt. Syeda Noor Fatima Zaidi had secured maximum valid votes at the election.
19. The concept of throwing away of the votes of a disqualified candidate would arise when there were not more than two candidates and in such situation, the candidate who had secured the second highest votes could be declared as a returned candidate. However, when there are more than two candidates who are in the fray, the situation as declared by the Apex Court in the case of Vishwanath Reddy v. Konappa Rudrappa Nadagouda3 would apply where the Apex Court was considering a case of exclusion of votes secured by corrupt practices at an election where two candidates were in the fray. The Apex Court held that:
"19. xxxxx the rule for the exclusion of the votes secured by corrupt practices by the returned candidate in the computation of the 3 AIR 1969 SC 604
- 21 -
NC: 2023:KHC-K:6083 MFA No. 201854 of 2022 C/W MFA No. 202002 of 2022 total votes and the consequential declaration of the candidate who secured the next highest number of votes as duly elected, can be applied only when there are just two candidates at an election."
20. This judgment of the Apex Court was later followed in Thiru John v. Returning Officer4. This was also again followed in D.K. Sharma v. Ram Sharan Yadav5 and consequently, in Prakash Khandre v. Vijay Kumar Khandre6, where the position of law was accentuated in the following words:
"xxxxx in the present case for one seat, there were five candidates and it would be impossible to predict or guess in whose favour the voters would have voted if they were aware that elected candidate was disqualified to contest election or if he was not permitted to contest the election by rejecting his nomination paper on the ground of disqualification to contest the election and what would have been voting pattern. "4
(1997) 3 SCC 540 5 (1993) Supp (2) SCC 117 6 (2002) 5 SCC 568
- 22 -
NC: 2023:KHC-K:6083 MFA No. 201854 of 2022 C/W MFA No. 202002 of 2022
21. A co-ordinate bench of this Court in Sudhir Nagesh Gadde v. Returning Officer, Belagavi and others7 was considering a case under Section 33(4)(A) of the Karnataka Municipal Corporation Act, where the returned candidate, though not belonging to a reserved category had contested the election as a reserved candidate. The learned Judge of this Court after considering a similar contention as raised by the learned counsel in this appeal held as follows:
"In terms of this provision, obtaining majority of valid votes' by the candidate is sine-qua-non for the declaration of the petitioner or other candidate as duly elected. When the votes cast in favour of returned candidate whose election is held void on ground of disqualification cannot be treated as invalid must be held to be validly cast votes. If so, no other candidate gets the majority valid votes to declare such candidate as duly elected. There is no other option except to declare re-election. Hence, the arguments advanced by the learned counsel for the appellant in M.F.A.No.101359/2015 cannot be countenanced. "7
2019 (1) AKR 806
- 23 -
NC: 2023:KHC-K:6083 MFA No. 201854 of 2022 C/W MFA No. 202002 of 2022
22. Therefore, the concept of throwing away the votes of a disqualified candidate may apply when there are only two candidates. It may also apply in preferential system of voting where preference votes are cast. If one of the candidates is disqualified, then the person who secures the highest number of first preferential votes could be declared to be the elected candidate. Therefore, when there are more than two candidates in the fray, the question of throwing away the votes of the returned candidate and declaring a candidate who had secured second highest number of votes does not fall within the scheme of Section 33(2)(b) of the Karnataka Municipal Corporations Act, 1976.
23. One of the contentions urged by the learned counsel for Smt. Syeda Noor Fatima Zaidi was that the returned candidate Smt. Priyanka did not challenge the order of the Tribunal declaring Smt. Syeda Noor Fatima Zaidi as a returned candidate. Likewise, Smt. Heena Urooz also did not seek for any declaration that she was the elected candidate. It was therefore, contended that Smt. Priyanka not having challenged the declaration of Smt. Syeda Noor Fatima Zaidi
- 24 -
NC: 2023:KHC-K:6083 MFA No. 201854 of 2022 C/W MFA No. 202002 of 2022 as a returned candidate, cannot claim the same. Likewise, Smt. Heena Urooz has no locus standi to challenge the impugned order in so far as it related to declaring Smt. Syeda Noor Fatima Zaidi as an elected candidate. This contention is purely academic as Heena Urooz was one of the defeated candidates who had contested election and it is incumbent upon every person seeking for the relief of declaration that she/he is the elected candidate, to implead all persons who had contested such an election as provided under Section 33 (3) of the Karnataka Municipality Corporation Act, 1976. Therefore, if not Smt.Priyanka, Smt. Heena Urooz was entitled to question the impugned order in so for it relates to declaring that Smt. Syeda Noor Fatima Zaidi was a returned candidate. Therefore, the contention of the learned counsel for Smt. Syeda Noor Fatima Zaidi that the appellant/s did not have any locus standi to challenge the declaration of Smt. Syeda Noor Fatima Zaidi as the returned candidate is raised only to be rejected.
24. In view of the above, the appeal filed by *Smt. Priyanka in MFA No.202002/2022 is dismissed *Corrected vide Court order dated 31.08.2023
- 25 -
NC: 2023:KHC-K:6083 MFA No. 201854 of 2022 C/W MFA No. 202002 of 2022 and the appeal filed by Smt. Heena Urooz in MFA No.201854/2022 is allowed in part and the impugned order in so far as it declares that Smt. Syeda Noor Fatima Zaidi as a returned candidate is set aside.
In view of the election being set aside, the concerned officer shall take appropriate steps for conducting a re- election in accordance with law.
Sd/-
JUDGE HJ/RSP List No.: 1 Sl No.: 17