Karnataka High Court
Mr. Suraj Naik Soni vs Mr. Dinakar Keshav Shetty on 25 September, 2025
Author: V.Srishananda
Bench: V.Srishananda
1
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
ELECTION PETITION No.100002/2023
BETWEEN
MR. SURAJ NAIK SONI
S/O SHIVARAM JATTI NAIK
AGED ABOUT 51 YEARS,
RESIDING AT SAKINA ALAKODA,
KATAGALA, KUMTA TALUK,
UTTARA KANNADA DISTRICT-581343
...PETITIONER
(BY SRI NISHANTH.A.V, ADVOCATE)
AND
1. MR. DINAKAR KESHAV SHETTY
S/O KESHAVA VENKATARAMANA SHETTY
AGED ABOUT 65 YEARS,
R/AT. NO.9, KOPPALAKARAWADI,
KUMTA,
UTTARA KANNADA DISTRICT-581343
2. MR NIVEDITH ALVA
S/O NIRANJAN THOMAS ALVA
AGED ABOUT 43 YEARS,
R/AT MANITH HOUSE,
BEHIND SHIVANI HOTEL,
HUBLI ROAD, SIRSI,
UTTARA KANNADA DISTRICT-581402
2
3. MR. GANI IMAMSAB JAINUDDIN
S/O. JAINUDDIN ABDUL
AGED ABOUT 51 YEARS,
R/AT CHANDAVARA POST,
HONNAVARA TALUK,
UTTARA KANNADA DISTRICT-581323
4. MR. SUBRAHMANYA MAHABALESHWAR BHAT
S/O. MAHABALESHWAR RAMAKRISHNA BHAT
AGED ABOUT 49 YEARS,
R/AT. MADGUNI VILLAGE,
KUMTA TALUK,
UTTARA KANNADA DISTRICT-581343
5. MR. NAGARAJ SRIDHAR SHET
S/O. SRIDHAR ANANTH SHET
AGED ABOUT 36 YEARS,
R/AT HALEHERAVAT POST,
KUMTA TALUK,
UTTARA KANNADA DISTRICT-581332
6. MS. ROOPA NAIK
D/O GAJANAN NAIL
AGED ABOUT 40 YEARS,
R/AT. THULASINAGAR,
DURGAKERE,
HONNAVARA TALUK,
UTTARA KANNADA DISTRICT-581334
7. MR. DINESHCHANDRA NARAYAN ANGADIKERE
S/O. LATE NARAYAN B ANGADIKERE
AGED ABOUT 42 YEARS,
R/AT. HOSAHERVATTA POST,
KUMTA TALUK,
UTTARA KANNADA DISTRICT-581332
3
8. MR. ISHWAR GOYDU GOUDA
S/O. LATE GOYDHU DEVU GOWDA
AGED ABOUT 34 YEARS,
R/AT. VAKKANHALLI POST,
KUMTA TALUK,
UTTARA KANNADA DISTRICT-581332
...RESPONDENTS
(BY SRI VIVEK SUBBA REDDY, SR. ADVOCATE A/W
SRI DILLI RAJAN, ADVOCATE FOR R1;
R2 TO R7 ARE SERVED;
R8 SERVICE HELD SUFFICIENT)
THIS ELECTION PETITION IS FILED UNDER SECTION
81 OF THE REPRESENTATION OF PEOPLE ACT, 1951
PRAYING TO ORDER FOR RECOUNTING OF ALL VOTES
POLLED IN NO.78-KUMTA ASSEMBLY CONSTITUENCY,
KARNATAKA LEGISLATIVE ASSEMBLY AS PER THE
RANDOMISATION LIST VIDE ANNEXURE-R AND ETC.,
THIS PETITION HAVING BEEN RESERVED FOR
ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING:-
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
4
CAV ORDER
(PER: HON'BLE MR JUSTICE V SRISHANANDA)
Heard Sri Nishanth A.V., learned counsel for the
petitioner, Sri Vivek Subba Reddy, learned Senior
Advocate along with Sri Dilli Rajan, advocate for
respondent No.1.
2. Unsuccessful candidate from Kumta Constituency in
the General Elections to 16th Legislative Assembly of
Karnataka, 2023, is the petitioner challenging the
declaration made by the Returning Officer declaring
respondent No.1 as winning candidate, in the present
petition filed under Section 81 of the Representation of
People Act, 1951, hereinafter referred to as 'Act'.
3. Facts of the case in a nutshell are as under:
General Elections to 16th Legislative Assembly of
Karnataka, 2023, was announced by the Election
Commission of India (hereinafter referred to as 'ECI') on
29.03.2023. Pursuant to said announcement, Hon'ble
5
Governor of Karnataka called upon Electorate in Karnataka
to elect the members of Legislative Assembly and a
notification came to be issued under the provisions of the
Act.
4. Pursuant to the notification and calendar of events,
elections were conducted as per the Act and Rules made
thereunder. The calendar of events is culled out
hereunder for ready reference.
Sl. List of events Date
No.
1 Date of notification April 13, 2023
2 Last date for filing nomination April 20, 2023
3 Scrutiny of nomination April 21, 2023
4 Last date for withdrawal of April 24, 2023
nomination
5 Date of polling May 10, 2023
6 Date of counting (result) May 13, 2023
5. For Kumta Assembly Constituency No.78, Sri
Raghavendra B. Jagalasar, was appointed as Returning
6
Officer who was working as Assistant Commissioner,
Kumta Sub Division, Uttara Kannada District. Under the
powers conferred on him, he appointed Assistant Returning
Officers by name Sri Raviraj Dixit who was working as
Tahsildar, Honnavar Taluk and Sri Shivayogi Naikalmath,
who was working as Tahsildar, Kumta Taluk. Election was
conducted under the direction and supervision of the
Returning Officer.
6. Petitioner contested on the ticket of political party
Janatha Dal (Secular) ('JD(S) for short). Respondent No.1
contested the election on the ticket of political party -
Bharatiya Janatha Party ('BJP' for short).
7. Apart from petitioner and respondent No.1, there are
seven other respondents who contested to the Kumta
Assembly Constituency No.78.
8. In the said election, respondent No.1 was declared
elected by defeating the petitioner by a margin of 676
votes. Authenticated copy in Form 21C was issued. Form
7
21E was also issued. The election was conducted by using
Electronic Voting Machine ('EVM' for short).
9. After voting, as per the calendar of events referred
to supra, counting was conducted on 13.05.2023 in
Dr.A.V.Baliga College of Arts and Science, Kumta.
10. In the ground floor of the said college, counting of
EVM took place, whereas, in the first floor, postal ballots
were counted. As required under the Act and Rules, each
counting table had a Counting Supervisor, two Counting
Assistants and other assisting staffs for counting of votes
recorded in the EVMs.
11. In the first floor, postal ballots were counted at the
first instance in due compliance with Rule 54A of the
Conduct of Election Rules, 1961. In all, 2,243 postal
ballots consisting of home voters, service voters etc., were
counted. Among them, 301 ballot papers were rejected
and 1942 ballot papers which were valid were counted.
Petitioner contends that rejection of ballot votes which
8
were valid and casted in his favour, is contrary to Rule 54A
of the Conduct of Election Rules, 1961.
12. Likewise, petitioner also contended that among the
counted postal ballots, 360 votes were secured by
respondent No.1 ought to have been rejected in terms of
Rule 54A(8) of the Conduct of Election Rules, 1961. It is
his case that those 360 ballot votes which have been
counted in favour of respondent No.1 are not duly attested
as mandated under Rule 24 of the Conduct of Election
Rules, 1961. Therefore, Form 13-A having not been
attested by Gazetted officer, 360 postal ballot votes are to
be rejected from the total votes secured by the respondent
No.1 in which case, the petitioner would have been
successful in defeating respondent No.1 in the election.
13. It is further contended that non compliance to Rule
54A of the Conduct of Election Rules, 1961, in proper
manner by the Returning Officer materially affected the
result of the election in terms of Section 100(1)(d)(iv) of
the Act.
9
14. Petitioner also contended that counting of ballots in
EVM has not taken place in accordance with 15.15 of the
Handbook for Returning Officer. As such, the lapse therein
also materially affected the result of the election.
15. It is further contention of the petitioner that on
13.05.2023, at about 3.30 pm, noting the lapses
committed by the Officers in counting the ballot papers
properly, petitioner addressed a letter to the Returning
Officer with a request for recounting of both the votes
recorded in EVM and postal ballots. Same was
acknowledged by the Returning Officer. On the same day,
Returning Officer rejected the request of the petitioner.
But the same was communicated to the petitioner only on
16.05.2023.
16. Petitioner further contended that on 15.05.2023,
petitioner requested for issue of copies of the following
documents:
(i) Form 21C
10
(ii) Form 21E
(iii) Form 20 Final Result Sheet.
(iv) Certified copy of the details of the
votes casted on 10.05.2023 Election with
respect to No.78-Kumta Assembly
Constituency.
17. The Returning Officer acknowledged the said letter.
But there was no compliance. As such, one more request
was made to the Returning Officer by the petitioner for
supply of the following documents.
(i) Copy of Form 17C and 17A of each
booth,
(ii) Copy of the counting and green statistics,
(iii) Copy of Presiding Officer's Diary,
(iv) Recording of the Sector wise CCTV
footage i.e., Strong Room, Passage and
Counting Booth's dated 13.05.2023 from 6.00
am to 6.00 pm.
11
(v) Copy of the information pertaining to
postal ballot votes which were rejected and
reasons for having rejected.
(vi) Details of the used and reserved
Electronic Voting Machines of No.78-Kumta
Assembly Constituency.
(vii) Round-wise details of votes recorded
during counting of votes.
18. Though request made in the said letter is
acknowledged, there was no compliance. But, on
19.05.2023, the Returning Officer addressed a letter to the
Deputy Commissioner who is the District Election Officer
bringing it to his notice that the petitioner made request
for issue of aforesaid documents.
19. Petitioner further contended that despite repeated
requests and representations seeking supply of statutory
forms, there was no response by the Returning Officer and
as such, yet another letter was addressed by the petitioner
on 20.05.2023 requesting for supply of following
documents:
12
(i) Form-7A,
(ii) Form-17C Part I of 215 Polling Station,
(iii) Form-17C Part II of 215 Polling Station,
(iv) Form-17A Register of Voters,
(v) Recording of events on counting day i.e.,
13.05.2023 between 6.00 am to 6.00 pm,
(vi) Information regarding total number of
ballot papers polled, valid, tendered and
rejected and its details,
(vii) Video recording footage and proceeding
details of the seizure of Rs.93,50,000/- on
28.04.2023 at Chandavar Check Post,
Honnavar Taluk, by Flying Squad by
Mr.Suresh S and Static Surveillance Team and
Chandavar Check Post CCTV footage from
2.20 am to 4.00 am dated 28.04.2023.
20. In reply, the Returning Officer issued endorsement
stating that only few documents could be furnished and
remaining documents could not be furnished in view of
Rule 93 of the Conduct of Election Rules, 1961. The
endorsement reads as under:
13
"»A§gÀºÀ
« ÀAiÀÄ : ªÀÄgÀÄ ªÀÄvÀ JtÂPÉ ªÀiÁqÀĪÀ PÀÄjvÀAvÉ ¤ÃrgÀĪÀ CfðAiÀÄ PÀÄjvÀÄ.
G¯ÉèÃR : 1. ¤ªÀÄä Cfð ¢£ÁAPÀ: 16.05.2023.
2. F PÁAiÀiÁð®AiÀÄ¢AzÀ ªÀiÁ£Àå f¯Áè ZÀÄ£ÁªÀuÁ¢üPÁjUÀ¼ÀÄ
ºÁUÀÆ f¯Áè¢üPÁjUÀ¼ÀÄ GvÀÛgÀ PÀ£ÀßqÀ PÁgÀªÁgÀ gÀªÀjUÉ §gÉzÀ ¥ÀvÀæ
¸ÀASÉå: £ÀA.«¸À¨sÉ/ZÀÄ£ÁªÀuÉ/«ªÀ/2022-23 ¢£ÁAPÀ:17.05.2023.
3. F PÁAiÀiÁð®AiÀÄ¢AzÀ ªÀiÁ£Àå f¯Áè ZÀÄ£ÁªÀuÁ¢üPÁjUÀ¼ÀÄ ºÁUÀÆ
f¯Áè¢üPÁjUÀ¼ÀÄ GvÀÛgÀ PÀ£ÀßqÀ PÁgÀªÁgÀ gÀªÀjUÉ §gÉzÀ ¥ÀvÀæ ¸ÀASÉå:
¸ÀA. «¸À¨sÉ/ZÀÄ£ÁªÀtÂ/«ªÀ/2022-23 ¢£ÁAPÀ:19.05.2023.
ªÉÄîÌAqÀ « ÀAiÀÄPÉÌ ¸ÀA§A¢ü¹zÀAvÉ G¯ÉèÃTvÀ ¥ÀvÀæzÀAvÉ ªÀÄvÀzÁ£ÀzÀ
¢£ÀzÀAzÀÄ vÁªÀÅ ¥ÉÇö¹zÀ ZÀ¯Á¬Ä¹zÀ ªÀÄvÀUÀ¼ÀÄ ºÁUÀÆ ªÀÄvÀ JtÂPÉAiÀÄAzÀÄ
vÁªÀÅ ¥ÉÇö¹zÀ MlÄÖ ZÀ¯ÁªÀuÉUÉÆAqÀ ªÀÄvÀUÀ¼ÀÄ ©ü£ÀߪÁVgÀÄvÀÛzÉ EzÀgÀ eÉÆvÉ
PÉ®ªÉÇAzÀÄ ¯ÉÆÃ¥ÀzÉÆà ÀUÀ¼ÀÄ EgÀÄvÀÛzÉ. PÁgÀt £ÁåAiÀÄ ¹UÀ®Ä F PɼÀPÀAqÀ
zÁR¯ÉUÀ¼À£ÀÄß ¤ÃqÀ®Ä G¯ÉèÃTvÀ ¥ÀvÀæzÀAvÉ F PÁAiÀiÁð®AiÀĪÀ£ÀÄß PÉÆÃjgÀÄwÛj.
1. J¯Áè ªÀÄvÀUÀmÉÖAiÀÄ Form -17C ºÁUÀÆ Form-17A £À £ÀPÀ®Ä ¥Àæw.
2. Green Statistics ªÀÄvÀÄÛ JtÂPÉAiÀÄ £ÀPÀ®Ä ¥Àæw.
3. Presiding Officer gÀªÀgÀ qÉÊj £ÀPÀ®Ä ¥Àæw.
4. ªÀÄvÀ JtÂPÉ ¢£ÀzÀ 78-PÀĪÀÄmÁ ªÀÄvÀ JtÂPÉ PÉÃAzÀæzÀ (PËAnAUï ºÁ¯ï)
ºÁUÀÆ E.«.JA. ¨sÀzÀævÁ PÉÆoÀrAiÀÄ CCTV Footage.
5. CAZÉ ªÀÄvÀ wgÀµÀÌøvÀªÁzÀ ªÀÄvÀzÀ «ªÀgÀ ºÁUÀÆ PÁgÀtUÀ¼ÀÄ.
6. 78-PÀĪÀÄmÁ «zsÁ£À¸À¨sÁ PÉëÃvÀæzÀ°è §¼ÀPÉ ªÀiÁrzÀ ºÁUÀÆ PÁ¢nÖgÀĪÀ
ªÀÄvÀAiÀÄAvÀæUÀ¼À ¸ÀASÉåAiÀÄ «ªÀgÀUÀ¼ÀÄ.
7. ªÀÄvÀ JtÂPÉAiÀÄ°è ¸ÀÄwÛ£À ¥ÀæPÁgÀ zÁR¯ÁzÀ ªÀÄvÀUÀ¼À ªÀiÁ»w.
14
F ªÉÄð£ÀªÀÅUÀ¼À ¥ÉÊQ PÀæªÀÄ ¸ÀASÉå 2, 5, 6, 7 ºÁUÀÆ J¯Áè
ªÀÄvÀUÀmÉÖUÀ¼À Form-17C Part II ªÀiÁ»wAiÀÄ£ÀÄß ¤ªÀÄUÉ ¤ÃqÀ¯ÁVzÀÄÝ
EgÀÄvÀÛzÉ ºÁUÀÆ G¯ÉèÃTvÀ ¥ÀvÀæ (2) gÀ£ÀéAiÀÄ ªÀÄvÀ JtÂPÉ ¢£ÀzÀ 78
PÀĪÀÄmÁ ªÀÄvÀ JtÂPÉ PÉÃAzÀæzÀ (PËAnAUï ºÁ¯ï) ºÁUÀÆ E.«.JªÀiï
¨sÀzÀævÁ PÉÆoÀrAiÀÄ CCTV Footage ¤ÃqÀ®Ä ªÀiÁ£Àå f¯Áè
ZÀÄ£ÁªÀuÁ¢üPÁjUÀ¼ÀÄ ºÁUÀÆ f¯Áè¢üPÁjUÀ¼ÀÄ GvÀÛgÀ PÀ£ÀßqÀ PÁgÀªÁgÀ
gÀªÀgÀ£ÀÄß PÉÆÃjzÀÄÝ EgÀÄvÀÛzÉ.
¤ÃªÀÅ PÉýzÀ J¯Áè ªÀÄvÀUÀmÉÖUÀ¼À Form- 17C Part I, Form-
17A ºÁUÀÆ Presiding Officer gÀªÀgÀ qÉÊjAiÀÄÄ ±Á¸À£À§zÀÞ
®PÉÆÃmÉUÀ¼ÁVzÀÄÝ ºÁUÀÆ PÀæªÀÄ ¸ÀASÉå 5 gÀ°è CAZÉ ªÀÄvÀ¥ÀvÀæ wgÀ¸ÀÈÌvÀªÁzÀ
ªÀÄvÀ¥ÀvÀæUÀ¼À£ÀÄß ¢£ÁAPÀ: 13-05-2023 gÀAzÀÄ ªÀÄvÀJtÂPÉ PÁAiÀÄð ªÀÄÄVzÀ
vÀgÀĪÁAiÀÄ C¨sÀåyðAiÀÄ WÉÆà ÀuÉAiÀÄ£ÀÄß ªÀiÁrzÀ £ÀAvÀgÀ ¹Ã°AUï ªÀiÁr¹
E.«.JªÀiï UÀ¼À£ÀÄß ±Á¸À£À§zÀÞ ºÁUÀÆ ±Á¸À£À§zÀÞªÀ®èzÀ ®PÉÆÃmÉUÀ¼À£ÀÄß
PÁgÀªÁgÀzÀ°ègÀĪÀ ªÀÄÄqÀUÉÃj ªÉÃgïºË¸ï £À°ègÀĪÀ 78 PÀĪÀÄmÁ «zsÁ£À¸À¨sÁ
PÉëÃvÀæPÉÌ ¸ÀA§A¢ü¹zÀ ¨sÀzÀævÁ PÉÆoÀrAiÀÄ°è Ej¸À¯ÁVzÀÄÝ ªÀiÁ£Àå f¯Áè
ZÀÄ£ÁªÀuÁ¢üPÁjUÀ¼ÀÄ ºÁUÀÆ f¯Áè¢üPÁjUÀ¼ÀÄ GvÀÛgÀ PÀ£ÀßqÀ PÁgÀªÁgÀgÀªÀgÀ
¸ÀÄ¥À¢ðAiÀÄ°è EgÀÄvÀÛzÉ. PÁgÀt F PÀÄjvÀÄ ªÀiÁ£ÀåjUÉ G¯ÉèÃTvÀ ¥ÀvÀæ (3)
gÀ£ÀéAiÀÄ ¸ÀÆPÀÛ ¤zÉÃð±À£À ¤ÃqÀ®Ä PÉÆÃjzÀÄÝ EgÀÄvÀÛzÉ.
PÁgÀt vÁªÀÅ PÉýzÀ zÁR¯ÉUÀ¼À ¥ÉÊQ Form-17C Part I,
Form- 17A ºÁUÀÆ Presiding OfficergÀªÀgÀ qÉÊj CAZÉ ªÀÄvÀ¥ÀvÀæ
wgÀ¸ÀÈÌvÀªÁzÀ ªÀÄvÀ¥ÀvÀæUÀ¼À AiÀiÁ¢ ºÁUÀÆ ªÀÄvÀ JtÂPÉ ¢£ÀzÀ 78- PÀĪÀÄmÁ
ªÀÄvÀ JtÂPÉ PÉÃAzÀæzÀ (PËAnAUï ºÁ¯ï) ºÁUÀÆ E.«.JªÀiï ¨sÀzÀævÁ
PÉÆoÀrAiÀÄ CCTV Footage£ÀÄß ªÀiÁ£Àå f¯Áè ZÀÄ£ÁªÀuÁ¢üPÁjUÀ¼ÀÄ
ºÁUÀÆ f¯Áè¢üPÁjUÀ¼ÀÄ GvÀÛgÀ PÀ£ÀßqÀ PÁgÀªÁgÀ gÀªÀgÀ ¤zÉÃð±À£ÀzÀAvÉ
¤ÃqÀ¯ÁUÀĪÀÅzÀÄ JA§ÄzÀ£ÀÄß F ªÀÄÆ®PÀ w½¹zÉ."
15
21. On 24.05.2023, the Deputy Commissioner who was
also the District Election Officer rejected the request of the
petitioner stating that the Order of the competent Court
was not produced. Therefore, request made by the
petitioner cannot be furnished. The said order is extracted
hereunder for ready reference:
"To, Date: 24.05.2023.
Suraj Naik, Soni,
JDS Candidate 78-Kumta LAC,
Alakod, Katgal, Kumta.
Sub: General Elections to Karnataka
Legislative Assembly-2023 furnishing certified
copies election related counting documents-
rega.
Ref: Your Application dated 20.05.2023.
-- -
With reference to above mentioned subject, you have
requested to furnish certified copies of Form-17A, 17C
Part I and Part II. As per Conduct of Elections Rules,
1961, Rule 93(1)(dd)(e) "the packets of the
declarations by electors and the attestation of their
signatures, shall not be open and their contents shall
not be inspected by, or produced before, any person or
authority except under the Order of the competent
Court."
16
Since you have not submitted the order from the
competent Court, this office is unable to provide you
the requested documents."
22. Left with no alternative, petitioner filed W.P.No.
103406/2023 on 30.05.2023. The said writ petition came
to be disposed of by this Court by Order dated 08.06.2023.
The said Order is culled out hereunder for ready reference.
"2. This petition is filed by the defeated
candidate seeking for a writ of certiorari and to quash
the order dated 24.05.2023, vide Annexure-J, passed
by respondent No.3 and for a writ of mandamus
directing respondents No.1 to 3 to furnish documents
as requested in the applications dated 16.05.2023 and
20.05.2023, vide Annexure-E and G respectively.
3. xxx xxx xxx
4. xxx xxx xxx
5. xxx xxx xxx
6. xxx xxx xxx
7. I have perused the contents of Annexure-J
which is sought to be quashed and the request made
for a direction to respondents No.1 to 3 to consider
the representation of petitioner in Annexure-E and G.
17
On a bare perusal of the Conduct of Election Rules,
1961, Rule 93 of Rules reads as under:
93. Production and inspection of
election papers.-(1) While in the custody of
the district election officer or, as the case may
be, the returning officer-
(a) the packets of unused ballot papers
with counterfoils attached thereto;
(b) the packets of used ballot papers
whether valid, tendered or rejected;
(c) the packets of the counterfoils of used
ballot papers;
(cc) the printed paper slips sealed under
the provisions of Rule 57-c;
(d) the packets of the marked copy of the
electoral roll, or, as the case may be, the list
maintained under sub-section (1) or sub-section
(2) of Section 152; and
(dd) the packets containing registers of
voters in Form 17-A;
(e) the packets of the declarations by
electors and the attestation of their signatures;
shall not be opened and their contents shall not
be inspected by, or produced before, any
18
person or authority except under the order of a
competent court.
1A) The control units sealed under the
provisions of Rule 57C and kept in the custody
of the district election officer shall not be
opened and shall not be inspected by, or
produced before, any person or authority except
under the orders of a competent court.
(2) Subject to such conditions and to the
payment of such fee as the Election Commission
may direct,-
(a) all other papers relating to the election
shall be open to public inspection; and
(b) copies thereof shall on application be
furnished.
(3) Copies of the returns by the returning
officer forwarded under Rule 64, or as the case
may be, under clause (b) of sub-rule (1) of Rule
84 shall be furnished by the returning officer
district election officer, chief electoral officer or
the Election Commission on payment of a fee of
two rupees for each copy.
8. Section 93(1)(dd)(e) specifically bars
production of certain documents except under the
19
order of a competent Court. Section 93(2)(a) and (b)
reads as under:
(2) Subject to such conditions and to the
payment of such fee as the Election Commission
may direct,-
(c) all other papers relating to the election
shall be open to public inspection;
and (d) copies thereof shall on application
be furnished.
9. In view of these two provisions, the issuance
of Annexure-J by respondent No.3, which is sought to
be quashed partly may not be wrong. I do not find any
cogent ground or reason shown by the petitioner. I do
not find any error per se in the endorsement
Annexure-J which is in consonance with section
93(1)(dd)(e) of the Rules, except with regard to Form
No.17C Part I and II. It is also submitted by learned
counsel for respondents that Form No.17C Part I has
been handed over, Form No.17C Part II and Form
No.17A is not permitted unless there is an order of the
competent court. Under the circumstances, to that
limited extent stated above, I do not find any ground
to interfere with the issuance of Annexure-J.
10. Coming to the next aspect of issuance of
writ of mandamus for a direction to respondents No.1
20
to 3 to furnish the documents as sought for in
Annexure-E and G dated 16.05.2023 and 20.05.2023,
apart from the already issued documents, issuance of
the other documents shall be considered to be
furnished by the respondents to the petitioner in
accordance with law and in consonance to the Rules
governing the Election Rules. However in view of the
time constraint to the petitioner in filing the election
petition, the same would have to be considered in a
time bound manner. Accordingly I pass the following:
ORDER
i) The writ petition is disposed of.
ii) The first prayer sought for to quash Annexure-J does not merit consideration and the same is rejected in part.
iii) In view of the findings given above and the second prayer, the writ of mandamus is issued to respondents No.1 to 3 to consider the representations of petitioner at Annexure-E and G dated 16.05.2023 and 20.05.2023 to furnish the remaining documents other than what has already been furnished to the petitioner in a time bound manner, not later than 20.06.2023."
21
23. Thus, the petitioner is aggrieved by various irregularities in the No.78 Kumta Assembly Constituency.
24. It is also contended that on 10.05.2023, the District Election Officer addressed a letter to the Chief Electoral Officer stating that the votes recorded at 6.30 pm with respect to Constituency No.78 is 1,45,336. Petitioner wanted certified copy of the said letter by addressing a letter on 12.06.2023. But deliberately, the Returning Officer did not provide the number of ballot papers polled, number of ballot papers which were valid and number of ballot papers which were rejected, despite repeated requests.
25. Thus, petitioner is of the opinion that the procedure adopted in validation, rejection of ballot papers is in contravention of the provisions of the Acts and Rules and therefore, election of respondent No.1 to Constituency No.78, Kumta Assembly Constituency needs to be set- aside in terms of Section 100(1)(d)(iv) of the Representation of People Act, 1951.
22
26. The petitioner also contended that the votes counted are in excess of the votes recorded. It is his contention that there were more votes counted than which were polled and as such, there is irregularity. It is his specific case that the votes recorded in the EVM is 1,46,606, whereas, the District Election Officer has communicated to the Chief Electoral Officer that numbers votes polled in Constituency No.78 is only 1,45,336. Therefore, there were 1,270 excess votes which were counted and all those extra votes were counted in favour of respondent No.1.
27. Petitioner has secured total number of votes of 59,289. Whereas, respondent No.1 has secured 59,965 votes. Thus excess 1,270 votes if not counted in favor of respondent No.1, he would have got only 58,695 votes and thereby, petitioner would have won the elections by margin of 594 votes and thus, the result of the election as declared by the Returning Officer is incorrect and illegal.
28. Petitioner also contended that every polling station has got three units. Viz., 23
(i) Balloting unit on which the ballot paper is pasted for display showing the candidate details such as name and symbol;
(ii) the other unit is called the Control Unit which records the vote recorded by each of the voter(s) of the Constituency;
(iii) Voter Verified Paper Audit Trail (VVPAT) units.
29. It is submitted that at the mustering centre, the Returning Officer allots and distributes the VVPAT unit, Balloting Unit and the Control Unit on the day of mustering. The Control Unit, Balloting Unit and Voter Verified Paper Audit Trail ('VVPAT' for short) unit have been allocated to all the 215 polling stations by the Returning Officer in respect of No.78-Kumta Assembly Constituency. Thereafter, Second Randomization would be conducted and a report in respect of Constituency No.78 is generated as per Annexure-R to Election Petition which reads as under:
24
Extract of Annexure-R Sl. PS PS Name BU ID CU ID VVPAT No. No. ID 1 1 Govt. Higher Primary EBUEE04091 ECUEE03592 EVTEE15348 School Gangekolla 2 2 Kittur Rani EBUEE02501 ECUEE04207 EVTEE13749 Chennamma Residential School Nadumaskeri 3 3 Govt. Higher Primary EBUEE07179 ECYEE04045 EVTEE01563 School Gangavali 4 4 Govt. Higher Primary EBUEE01085 ECUEE03632 EVTEE04805 School Harumaskeri 5 5 Govt. Higher Primary EBUEE05364 ECUEE00328 EVTEE01236 School Bankikodla 6 6 Govt. Higher Primary EBUEE06502 ECUEE03827 EVTEE07900 School Bavikodla No.2 (South Wing) 7 7 Govt. Higher Primary EBUEE02257 ECUEE03633 EVTEE06626 School Bavikodla No. (East. Wing) 8 8 Govt. Higher Primary EBUEE08440 ECUEE00117 EVTEE13926 School (West. Wing) 9 9 Anandashrama High EBUEE01040 ECUEE02848 EVTEE07830 School Bankikodla 10 10 Govt. Higher Primary EBUEE04571 ECUEE02279 EVTEE08495 School (East Wing) Hoskeri, Kadime 11 11 Govt. Higher Primary EBUEE03271 ECUEE00531 EVTEE04393 School (West Wing) Hoskeri, Kadime 12 12 Gram Pancayat Office EBUEE01369 ECUEE03305 EVTEE07347 Gokarna 13 13 Govt. Model Higher EBUEE00001 ECUEE01459 EVTEE05649 Primary School Gokarna (Lest Wing) 14 14 Govt. Higher Primary EBUEE06897 ECUEE02665 EVTEE10760 School Sanikatta 15 15 Govt. Lower Primary EBUEE02099 ECUEE04096 EVTEE01537 School Moodangi 16 16 Govt. Higher Primary EBUEE06422 ECUEE00907 EVTEE04908 School Tadadi (New Building) 17 17 Govt. Higher Primary EBUEE00691 ECUEE02654 EVTEE13345 School Tadadi (Old Building) 18 18 Govt. Lower Primary EBUEE01033 ECUEE01558 EVTEE02101 School Dandebag Gokarna 19 19 Govt. Higher Primary EBUEE08243 ECUEE03391 EVTEE01282 School Gokarna No.2 (Left Wing) 20 20 Govt. Higher Primary EBUEE03763 ECUEE00448 EVTEE01605 School Gokarna No. 2 (Right Wing) 25 21 21 Govt. Model Higher EBUEE00246 ECUEE01942 EVTEE07871 Primary School Gokarna (Right Wing) 22 22 Govt. Lower Primary EBUEE06008 ECUEE01850 EVTEE12602 School Rudrapad Bijjur (East Wing) 23 23 Govt. Lower Primary EBUEE03847 ECUEE01177 EVTEE07532 School Rudrapad Bijjur (West Wing) 24 24 Govt. Higher Primary EBUEE00027 ECUEE00493 EVTEE02113 School Torke (Right Side) 25 25 Govt. Higher Primary EBUEE07040 ECUEE03167 EVTEE04131 School Torke (Left Side) 26 26 Govt. Model Higher EBUEE08639 ECUEE02567 EVTEE06202 Primary School Madangeri (North Wing) 27 27 Govt. Model Higher EBUEE05032 ECUEE02287 EVTEE13350 Primary School Madangeri (West Wing) 28 28 Govt. Higher Primary EBUEE09303 ECUEE03898 EVTEE07870 School Hiregutti (North Wing) 29 29 Govt. Higher Primary EBUEE05124 ECUEE03065 EVTEE08734 School Hiregutti (South Wing) New Building 30 30 Shri Sadanand N EBUEE07972 ECUEE03104 EVTEE07611 Shanbhag Govt.
higher primary
School Devarabole
31 31 Govt. Higher Primary EBUEE02801 ECUEE02247 EVTEE07953
School Hosanagar,
Morba
32 32 Govt. Higher Primary EBUEE00571 ECUEE03773 EVTEE07093
School Honnakeri
(Nagur)
33 33 Govt. Higher Primary EBUEE05400 ECUEE03966 EVTEE13911
School Kudagundi
34 34 Govt. Higher Primary EBUEE05292 ECUEE04304 EVTEE05186
Urdu School Betkuli
35 35 Govt. Higher Primary EBUEE07322 ECUEE03313 EVTEE06152
School Betkuli
36 36 Govt. Lower Primary EBUEE07640 ECUEE01299 EVTEE12709
School Kolimanjguni
37 37 Govt. Higher Primary EBUEE04242 ECUEE03599 EVTEE13876
School Aghanashini,
(Kelaginakeri)
38 38 Govt. Higher Primary EBUEE07045 ECUEE00313 EVTEE07027
School (South Wing)
Aghanashini
39 39 Govt. Higher Primary EBUEE03602 ECUEE00755 EVTEE12596
School (East Wing)
Aghanashini Melinkeri
26
40 40 Govt. Higher Primary EBUEE03312 ECUEE00407 EVTEE12711
School (East Wing)
Bargi
41 41 Govt. Higher Primary EBUEE05904 ECUEE02532 EVTEE06237
School (West Wing)
Bargi
42 42 Govt. Higher Primary EBUEE06197 ECUEE01329 EVTEE08057
School (East Wing)
Gudkagal
43 43 Govt. Lower Primary EBUEE08553 ECUEE02122 EVTEE12853
School Angadikeri
44 44 Govt. Model Higher EBUEE03468 ECUEE04086 EVTEE04943
Primary School Kagal
(West Wing)
45 45 Govt. Model Higher EBUEE01784 ECUEE02002 EVTEE03497
Primary School Kagal
(South Wing)
46 46 Govt. Higher Primary EBUEE05586 ECUEE00143 EVTEE03282
School Hubbanageri
47 47 Govt. Higher Primary EBUEE04604 ECUEE01233 EVTEE08146
Urdu School
Hubbangeri (North
Wing)
48 48 Govt. Lower Primary EBUEE06400 ECUEE01557 EVTEE02950
School Jeshtapur
Baad
49 49 Govt. Higher Primary EBUEE03578 ECUEE03644 EVTEE02877
School Paduvani
50 50 Govt. Lower Primary EBUEE04929 ECUEE00782 EVTEE06670
School Kimani
51 51 Govt. Model Higher EBUEE07405 ECUEE00263 EVTEE11221
Primary School
Kodkani (South
Wing)
52 52 Govt. Model Higher EBUEE04509 ECUEE03778 EVTEE12733
Primary School
(South Wing) Middle
Part Kodkani
53 53 Govt. Model Higher EBUEE05704 ECUEE01566 EVTEE02516
Primary School (West
Wing) Kodkani
54 54 Govt. Higher Primary EBUEE04345 ECUEE04264 EVTEE03858
School Igalkurve
55 55 Govt. Higher Primary EBUEE02226 ECUEE02762 EVTEE10292
School (North Wing)
Mirjan
56 56 Govt. Lower Primary EBUEE01472 ECUEE02130 EVTEE07921
School Yettinabail
57 57 Govt. Lower Primary EBUEE04954 ECUEE00518 EVTEE14024
School Khaire
27
58 58 Govt. Higher Primary EBUEE06430 ECUEE03615 EVTEE02500
School (North Wing
of South Building)
Mirjan
59 59 Govt. Higher Primary EBUEE02264 ECUEE00040 EVTEE11349
School Yalavalli
60 60 Govt. Higher Primary EBUEE05548 ECUEE04585 EVTEE11444
School Kodambale
61 61 Govt. Higher Primary EBUEE01911 ECUEE02909 EVTEE02686
School Hebbail
62 62 Govt. Lower Primary EBUEE00329 ECUEE02817 EVTEE14227
School Kabbargi
63 63 Govt. Higher Primary EBUEE04373 ECUEE03173 EVTEE08049
School Yana
64 64 Govt. Higher Primary EBUEE04366 ECUEE01455 EVTEE07809
School Katgal (Right
Side)
65 65 Govt. Higher Primary EBUEE05483 ECUEE01933 EVTEE04871
School Katgal (Left
Side)
66 66 Govt. Higher Primary EBUEE07153 ECUEE00138 EVTEE06211
School
Hondadahakkal
67 67 Govt. Higher Primary EBUEE03874 ECUEE01291 EVTEE01865
School Antravalli
68 68 Govt. Higher Primary EBUEE05693 ECUEE04520 EVTEE03301
School (East Wing)
Divgi
69 69 Govt. Higher Primary EBUEE03782 ECUEE04183 EVTEE05224
School Mankon
70 70 Govt. Higher Primary EBUEE07204 ECUEE00290 EVTEE13218
School Divgi
71 71 Govt. Higher Primary EBUEE06887 ECUEE04372 EVTEE04011
School Masur (R C C
Building, South Wing)
72 72 Govt. Higher Primary EBUEE05600 ECUEE01549 EVTEE18542
School (R C C
28
Building, West Wing)
73 73 Govt. Higher Primary EBUEE05983 ECUEE02965 EVTEE03364
Girls School Hegde
(Front Side)
74 74 Govt. Lower Primary EBUEE08061 ECUEE01171 EVTEE12561
School Tannirkuli
75 75 Govt. Higher Primary EBUEE08979 ECUEE04353 EVTEE07296
Girls School Hegde
(South Wing)
76 76 Govt. Lower Primary EBUEE01600 ECUEE00235 EVTEE09968
School Taribagil No.2
77 77 Govt. Model Higher EBUEE00799 ECUEE03628 EVTEE07560
Primary Boys School
Hegde (Middle Wing)
78 78 Govt. Model Higher EBUEE04611 ECUEE00991 EVTEE13147
Primary Boys School
Hegde (West Wing)
79 79 Govt. Higher School EBUEE03070 ECUEE04184 EVTEE04038
Melinkeri Hegde
80 80 Govt. Model Higher EBUEE04638 ECUEE03508 EVTEE02614
Primary School
Lukkeri (South Wing)
81 81 Govt. Model Higher EBUEE01557 ECUEE04651 EVTEE04060
Primary School
Lukkeri (West Wing)
82 82 Govt. Higher Primary EBUEE00876 ECUEE04346 EVTEE01418
School Gudeangadi
(North Wing)
83 83 Govt. Higher Primary EBUEE04427 ECUEE02512 EVTEE03595
School Gudeangadi
(South Wing)
84 84 Govt. Higher Primary EBUEE01483 ECUEE04375 EVTEE02169
School Holangadde
(East Wing)
85 85 Govt. Higher Primary EBUEE00757 ECUEE00745 EVTEE12124
School Holangadde
(West Wing)
29
86 86 Govt. Higher Primary EBUEE07996 ECUEE01316 EVTEE06533
School Kadle
87 87 Govt. Higher Primary EBUEE01325 ECUEE03179 EVTEE07878
School Teppa
88 88 Govt. Higher Primary EBUEE01794 ECUEE04140 EVTEE13198
School Halkar (East
Wing)
89 89 Govt. Higher Primary EBUEE01462 ECUEE01656 EVTEE04088
School Halkar (West
Wing)
90 90 M.L.A Govt. EBUEE08265 ECUEE03083 EVTEE09029
Kannada Medium
Model School
Nellikeri Kumta
(North Wing)
91 91 M.L.A.Govt. Kannada EBUEE ECUEE EVTEE
Medium Model School
Nellikeri Kumta
(South Wing)
92 92 Govt. High Primary EBUEE05552 ECUEE01462 EVTEE13941
Sharada Nilaya
School Vivekanagar
Manaki
93 93 Govt. Lower Primary EBUEE01131 ECUEE01149 EVTEE08004
School Vakkanalli
94 94 Govt. lower Primary EBUEE01184 ECUEE03103 EVTEE04034
School
Nehrunagar
95 95 Govt. Model Higher EBUEE04857 ECUEE02351 EVTEE08927
Primary chool Chitrigi
(North Wing)
96 96 Govt. Model Higher EBUEE03958 ECUEE00777 EVTEE10389
Primary School
Chitrigi (Left Wing)
97 97 Govt. Model Higher EBUEE00626 ECUEE02572 EVTEE03420
Primary School
Chitrigi (South wing
of Right side)
98 98 Govt. Higher Primary EBUEE07199 ECUEE00995 EVTEE02019
School Kumta (Left
Wing)
99 99 Govt. Higher Primary EBUEE07113 ECUEE04164 EVTEE13245
School Gunda
100 100 Govt. Higher Primary EBUEE06862 ECUEE02988 EVTEE12636
Urdu School Vannalli
101 101 Govt. Higher Primary EBUEE01244 ECUEE01339 EVTEE10155
School Vannalli
30
102 102 Gibb English Medium EBUEE02227 ECUEE04544 EVTEE07373
School Kumta (East
Wing
103 103 Gibb English Medium EBUEE01182 ECUEE04173 EVTEE05047
School Kumta (west
Wing
104 104 Nirmala Convent EBUEE06367 ECUEE04246 EVTEE02907
School Kumta
105 105 Agricultural EBUEE06538 ECUEE01574 EVTEE08230
University, Dharwad
Diploma (Agriculture)
College Kumta
106 106 Govt. Higher Primary EBUEE00444 ECUEE00262 EVTEE10871
Prayogika School
Kumta (Right Wing)
107 107 Govt. Higher Primary EBUEE09472 ECUEE03607 EVTEE04832
Prayogika School
Kumta (Left Wing)
108 108 Govt. Higher Primary EBUEE05087 ECUEE01467 EVTEE13337
School Kumta
109 109 Govt. Model Higher EBUEE02035 ECUEE04185 EVTEE07403
Primary Kannada and
English Medium
School Gudigaragalli,
Kumta(East Wing)
110 110 Govt. Model Higher EBUEE05349 ECUEE01593 EVTEE05541
primary Kannada and
English Medium
School Gudigaragalli,
Kumta (West Wing)
111 111 Govt. Higher Primary EBUEE07504 ECUEE04099 EVTEE09477
School Harakade
112 112 Govt. Model Higher EBUEE04186 ECUEE04240 EVTEE11186
Primary School
Muroor (Old Building)
113 113 Govt. Model Higher EBUEE04775 ECUEE04398 EVTEE04552
Primary School
Muroor (New
Building)
114 114 Govt. Higher Primary EBUEE02715 ECUEE03243 EVTEE09044
School Hattikeri
115 115 Govt. Higher Primary EBUEE04554 ECUEE00617 EVTEE03401
School, Karkimakki
116 116 Govt. Lower Primary EBUEE08193 ECUEE02637 EVTEE13942
School Musaguppa
117 117 Govt. Higher Primary EBUEE01156 ECUEE00273 EVTEE04291
School Kallabbe
(South Wing)
118 118 Govt. Higher Primary EBUEE03058 ECUEE03106 EVTEE03428
School Kallabbe
(North Wing)
119 119 Govt. Lower Primary EBUEE00548 ECUEE00758 EVTEE13895
School Melina
Kandavalli
120 120 Govt. Higher Primary EBUEE06597 ECUEE01020 EVTEE04454
School,
31
Uppinapattana
121 121 Govt. Lower Primary EBUEE00209 ECUEE01673 EVTEE08706
School Shirgunji
122 122 Govt. Lower Primary EBUEE00424 ECUEE01946 EVTEE07752
School Soppinahosalli
123 123 Govt. Lower Primary EBUEE01781 ECUEE01305 EVTEE07969
School Melina Medini
124 124 Govt. Higher Primary EBUEE03300 ECUEE02794 EVTEE08163
School Bangane
125 125 Govt. Higher Primary EBUEE00813 ECUEE03370 EVTEE03743
School, Kalve
126 126 Govt. Higher Primary EBUEE00659 ECUEE03925 EVTEE05978
School, Garadibail
127 127 Govt. Higher Primary EBUEE05681 ECUEE02525 EVTEE09252
School Santeguli
(Primary Division)
128 128 Govt. Higher Primary EBUEE04548 ECUEE03198 EVTEE09788
School, Divalli
129 129 Govt. Lower Primary EBUEE04258 ECUEE01232 EVTEE12067
School Kavaladi
130 130 Govt. Higher Primary EBUEE04816 ECUEE03311 EVTEE13362
School, Alavalli
131 131 Govt. Model Higher EBUEE07612 ECUEE02144 EVTEE07555
Primary School,
Kujalli (East Wing)
132 132 Govt. Model Higher EBUEE07762 ECUEE03109 EVTEE01156
Primary School,
Kujalli (West Wing)
133 133 Govt. Higher Primary EBUEE02229 ECUEE00516 EVTEE09500
School, Valagalli (Left
Wing)
134 134 Govt. Lower Primary EBUEE00568 ECUEE01961 EVTEE13785
School, Harodi
135 135 Govt. Higher Primary EBUEE07296 ECUEE03954 EVTEE13929
School, Valagalli
(South Wing)
136 136 Govt. Higher EBUEE00999 ECUEE04197 EVTEE13632
Primary School,
Hosahervatta
137 137 Govt. higher Primary EBUEE02294 ECUEE04611 EVTEE13070
School, Baggon
138 138 Govt. higher Primary EBUEE02710 ECUEE02366 EVTEE11109
School, Alvekodi
(East Wing of North
Building)
139 139 Govt. Lower Primary EBUEE04343 ECUEE01634 EVTEE07451
school, Alvedande
140 140 Govt. Model Higher EBUEE05017 ECUEE02667 EVTEE19924
Primary School,
Alvekodi (Left Wing)
141 141 Govt. Model Higher EBUEE05274 ECUEE04621 EVTEE14498
Primary School,
Alvekodi (Right Wing)
32
142 142 Govt. Higher Primary EBUEE01216 ECUEE02475 EVTEE19398
School, Kalbhag
143 143 Govt. Higher Primary EBUEE00909 ECUEE03976 EVTEE17811
School Handigon
144 144 Govt. Higher Primary EBUEE09569 ECUEE02987 EVTEE13449
School Talgod
145 145 Govt. Lower Primary EBUEE05439 ECUEE03964 EVTEE11793
School Abbi, Urkeri
146 146 Govt. Higher Primary EBUEE02205 ECUEE00786 EVTEE08803
School Konalli
147 147 Janata Vidyala EBUEE01035 ECUEE03375 EVTEE05153
Dhareshwar (Left
Wing)
148 148 Janata Vidyala EBUEE05895 ECUEE01243 EVTEE13748
Dhareshwar (Right
Wing)
149 149 Govt. Higher Primary EBUEE06076 ECUEE01416 EVTEE02996
School holegadde
(East Wing)
150 150 Govt. Higher Primary EBUEE07644 ECUEE02010 EVTEE04949
School Holegadde
(West Wing)
151 151 Govt. Higher Primary EBUEE06397 ECUEE01349 EVTEE16521
School Horabhag
152 152 Govt. Model Higher EBUEE01093 ECUEE03817 EVTEE03348
Primary School
Toppalakeri
153 153 Govt. Higher Primary EBUEE02926 ECUEE02599 EVTEE03388
School, Hegdehitla
154 154 Govt. Lower Primary EBUEE00286 ECUEE01683 EVTEE02393
School Mathadakeri
155 155 Shri Chennakeshav EBUEE04896 ECUEE02329 EVTEE12320
High School Karki
156 156 Govt. Lower Primary EBUEE00599 ECUEE01213 EVTEE08231
School Dugguru
157 157 Govt. Higher Primary EBUEE01711 ECUEE02344 EVTEE13640
School Karki (R.W)
158 158 Govt. Higher Primary EBUEE03959 ECUEE02215 EVTEE16811
School Karki (L.W)
159 159 Govt. Lower Primary EBUEE05356 ECUEE03057 EVTEE06392
School Kesarakodi
160 160 Govt. Lower Primary EBUEE01609 ECUEE02701 EVTEE01624
School Kirabail
(North Side)
161 161 Govt. Lower Primary EBUEE02154 ECUEE04206 EVTEE14373
School Kirabail
(South Side)
162 162 Govt. Model Higher EBUEE04944 ECUEE04248 EVTEE03097
Primary School
Haladipur(R.W)
163 163 R.E.S Composite EBUEE04864 ECUEE01997 EVTEE02846
Junior College
Haladipur (R.W)
164 164 R.E.S Composite EBUEE00382 ECUEE02718 EVTEE05209
Junior College
33
Haladipur (R.W)
165 165 Govt. Lower Primary EBUEE03983 ECUEE02327 EVTEE07353
School Kalkatte(R.W)
166 166 Govt. Lower Primary EBUEE03094 ECUEE01625 EVTEE03781
School Kalkatte (L.W)
167 167 Govt. Higher Primary EBUEE02320 ECUEE01195 EVTEE01855
school Sankolli
168 168 Govt. higher Primary EBUEE00118 ECUEE04126 EVTEE02718
School, Keregadde
169 169 Govt. Model Higher EBUEE02344 ECUEE02830 EVTEE06887
Primary School
Haladipur (L.W)
170 170 Govt. Lower Primary EBUEE00859 ECUEE03690 EVTEE10254
School Madagarkeri
171 171 Govt. Higher Primary EBUEE05998 ECUEE04404 EVTEE01850
school, Navilgon No.1
172 172 Govt. Higher Primary EBUEE00984 ECUEE01822 EVTEE13064
School No.3 Navilgon
173 173 Govt. Higher Primary EBUEE06999 ECUEE00624 EVTEE11394q
School No.2 Navilgon
174 174 Govt. Higher Primary EBUEE03699 ECUEE04307 EVTEE09140
School hebbarnakeri
(R.W)
175 175 Govt. Higher Primary EBUEE02128 ECUEE01094 EVTEE09320
School Hebbarnakeri
(L.W)
176 176 Govt. Higher Primary EBUEE05650 ECUEE03801 EVTEE06892
School Neelkod
177 177 Govt. Higher Primary EBUEE03023 ECUEE02675 EVTEE07364
School, Vandur
178 178 Govt. High School EBUEE04259 ECUEE04484 EVTEE03242
Hodkeshirooru,
Kadneeru
179 179 Govt. Higher Primary EBUEE03610 ECUEE00715 EVTEE02601
School Hodkeshirooru
180 180 Govt. Higher Primary EBUEE04563 ECUEE04443 EVTEE02916
School Kadatoka
(R.W)
181 181 Govt. Higher Primary EBUEE03327 ECUEE00366 EVTEE19458
School Kadtoka (L.W)
182 182 Govt. Higher Primary EBUEE00477 ECUEE00205 EVTEE04368
School Jaddigadde
183 183 Govt. Higher Primary EBUEE06702 ECUEE03796 EVTEE01606
School Kekkar No.2
184 184 Govt. Higher Primary EBUEE06311 ECUEE03528 EVTEE08333
School Kekkar No.1
185 185 Govt. Higher Primary EBUEE01050 ECUEE00727 EVTEE03080
Urdu School
Chandavar
186 186 Govt. Higher Primary EBUEE03062 ECUEE03688 EVTEE01892
School Chandavar
(R.W)
187 187 Govt. Higher Primary EBUEE00039 ECUEE01175 EVTEE14046
School Chandavar
34
(L.W)
188 188 Govt. Higher Primary EBUEE06510 ECUEE02517 EVTEE05720
School Vadageri
189 189 Govt. Higher Primary EBUEE01073 ECUEE04049 EVTEE03850
School Kadneeru
190 190 Govt. Higher Primary EBUEE09118 ECUEE02094 EVTEE07605
School Santeguli
191 191 Govt. Higher Primary EBUEE00867 ECUEE04548 EVTEE08020
School Bhaskeri
192 192 Govt. Higher Primary EBUEE08260 ECUEE00491 EVTEE07050
School Kerekon
193 193 Govt. Higher Primary EBUEE08147 ECUEE09782 EVTEE03553
School Darbejaddi
194 194 Govt. Higher Primary EBUEE01639 ECUEE01137 EVTEE01634
School
Keremanekaccharki
195 195 Govt. Higher Primary EBUEE05918 ECUEE04150 EVTEE13909
School Kanakki
196 196 Govt. Higher Primary EBUEE05595 ECUEE04153 EVTEE10285
School Salkod (R.W)
197 197 Govt. Higher Primary EBUEE01363 ECUEE03895 EVTEE10882
School Sthitigar
198 198 Govt. Higher Primary EBUEE06986 ECUEE04650 EVTEE12000
School Honavar. No.2
Church Road
199 199 New English School EBUEE02103 ECUEE02662 EVTEE08875
Honavar
200 200 Govt. High School EBUEE09334 ECUEE03038 EVTEE14301
Prabhat Nagar,
Honavar
201 201 Govt. Higher Primary EBUEE08743 ECUEE04006 EVTEE06628
School Prabhat Nagar
Honavar
202 202 Govt. Lower Primary EBUEE03753 ECUEE00199 EVTEE08948
Kannada School
Karnalhill
(Gandhinagar)
203 203 Govt. Higher Primary EBUEE03017 ECUEE01615 EVTEE03321
School Honavar No.1
(R.W)
204 204 Govt. Higher Primary EBUEE00150 ECUEE04122 EVTEE07305
School Honavar
No.1(L.W)
205 205 Samudaya Bhavana, EBUEE01219 ECUEE01398 EVTEE05168
Town Panchayat,
Honavar
206 206 Higher Elimentary EBUEE00425 ECUEE01053 EVTEE09939
(Brothers) School
Honavar
207 207 N.M.S.Higher Primary EBUEE01490 ECUEE02758 EVTEE05605
School, Durgakeri,
Honnavar
208 208 St. Thomas High EBUEE00281 ECUEE02792 EVTEE02576
School Honavar
35
209 209 Govt. Lower Primary EBUEE02470 ECUEE02371 EVTEE04103
School, Bandegadde,
Honavar
210 210 Govt. Lower Primary EBUEE05733 ECUEE01603 EVTEE16054
School, Gunagunikeri
(R.W)
211 211 Govt. Lower Primary EBUEE04217 ECUEE05176 EVTEE07313
School Gunagunikeri
(L.W)
212 212 Govt. Higher Primary EBUEE07343 ECUEE02034 EVTEE08382
Urdu School, Honavar
213 213 Govt. Higher Primary EBUEE01638 ECUEE03340 EVTEE06070
School, Surkatte
(R.W)
214 214 Govt. Higher Primary EBUEE05653 ECUEE03141 EVTEE06899
School Surkatte
(L.W)
215 215 Shri Subramanya EBUEE07464 ECUEE04378 EVTEE04603
Composite Pre-
University College
Kavalakki
30. The Returning Officer keeps in reserve the balloting unit, control unit and VVPAT unit to meet the exigencies where there is malfunction of any one of the units. If any such malfunction is reported, such of the units would be replaced and would be notified in the replacing list maintained by the Returning Officer.
31. After verification of the units and randomization has taken place, a report is generated. The said report is extracted hereunder:36
Extract of Annexure-S Sl.
Unit Type Ware House ID Unit ID
No.
1
BU 13489 EBUEE00664
2
BU 13489 EBUEE02481
3
BU 13489 EBUEE03906
4
BU 13489 EBUEE00418
5
BU 13489 EBUEE01151
6
BU 13489 EBUEE07696
7
BU 13489 EBUEE04671
8
BU 13489 EBUEE09305
9
BU 13489 EBUEE00930
10
BU 13489 EBUEE01349
11
BU 13489 EBUEE00391
12
BU 13489 EBUEE02018
13
BU 13489 EBUEE05647
14
BU 13489 EBUEE04675
15
BU 13489 EBUEE03277
16
BU 13489 EBUEE01060
17
BU 13489 EBUEE03061
18
BU 13489 EBUEE05917
19
BU 13489 EBUEE03180
20
BU 13489 EBUEE00793
21
BU 13489 EBUEE01792
22
BU 13489 EBUEE09946
37
23
BU 13489 EBUEE07391
24
BU 13489 EBUEE01571
25
BU 13489 EBUEE04518
26
BU 13489 EBUEE09194
27
BU 13489 EBUEE01007
28
BU 13489 EBUEE00733
29
BU 13489 EBUEE04996
30
BU 13489 EBUEE05401
31
BU 13489 EBUEE04126
32
BU 13489 EBUEE01555
33
BU 13489 EBUEE00107
34
BU 13489 EBUEE07658
35
BU 13489 EBUEE03503
36
BU 13489 EBUEE05334
37
BU 13489 EBUEE00994
38
BU 13489 EBUEE04757
39
BU 13489 EBUEE03074
40
BU 13489 EBUEE02290
41
BU 13489 EBUEE01853
42
BU 13489 EBUEE04865
43
BU 13489 EBUEE02883
1
CU 13489 ECUEE00463
2
CU 13489 ECUEE03087
3
CU 13489 ECUEE00250
38
4
CU 13489 ECUEE00230
5
CU 13489 ECUEE00675
6
CU 13489 ECUEE00155
7
CU 13489 ECUEE03630
8
CU 13489 ECUEE00261
9
CU 13489 ECUEE03299
10
CU 13489 ECUEE04708
11
CU 13489 ECUEE00009
12
CU 13489 ECUEE04516
13
CU 13489 ECUEE00256
14
CU 13489 ECUEE03670
15
CU 13489 ECUEE01670
16
CU 13489 ECUEE03637
17
CU 13489 ECUEE02000
18
CU 13489 ECUEE04507
19
CU 13489 ECUEE03775
20
CU 13489 ECUEE04488
21
CU 13489 ECUEE06036
22
CU 13489 ECUEE02378
13489
23
CU ECUEE00768
13489
24
CU ECUEE00006
13489 ECUEE03551
25
CU
13489 ECUEE03187
26
CU
13489 ECUEE03320
27
CU
39
13489 ECUEE03239
28
CU
13489 ECUEE03469
29
CU
13489 ECUEE04379
30
CU
13489 ECUEE01331
31
CU
13489 ECUEE02696
32
CU
13489 ECUEE02948
33
CU
13489 ECUEE01246
34
CU
13489 ECUEE01510
35
CU
13489 ECUEE00436
36
CU
13489 ECUEE04414
37
CU
13489 ECUEE02729
38
CU
13489 ECUEE00732
39
CU
13489 ECUEE04368
40
CU
13489 ECUEE04545
41
CU
13489 ECUEE03635
42
CU
13489 ECUEE02253
43
CU
1
VVPAT 13489 EVTEE07813
2
VVPAT 13489 EVTEE08741
3
VVPAT 13489 EVTEE09382
4
VVPAT 13489 EVTEE07963
5
VVPAT 13489 EVTEE07929
6
VVPAT 13489 EVTEE13137
7
VVPAT 13489 EVTEE03825
8
VVPAT 13489 EVTEE07993
40
9
VVPAT 13489 EVTEE09953
10
VVPAT 13489 EVTEE13531
11
VVPAT 13489 EVTEE17004
12
VVPAT 13489 EVTEE01894
13
VVPAT 13489 EVTEE09620
14
VVPAT 13489 EVTEE10406
15
VVPAT 13489 EVTEE03721
16
VVPAT 13489 EVTEE08081
17
VVPAT 13489 EVTEE01970
18
VVPAT 13489 EVTEE01593
19
VVPAT 13489 EVTEE19382
20
VVPAT 13489 EVTEE04277
21
VVPAT 13489 EVTEE13114
22
VVPAT 13489 EVTEE17463
23
VVPAT 13489 EVTEE08541
24
VVPAT 13489 EVTEE05431
25
VVPAT 13489 EVTEE17923
26
VVPAT 13489 EVTEE09358
27
VVPAT 13489 EVTEE03415
28
VVPAT 13489 EVTEE14125
29
VVPAT 13489 EVTEE04650
30
VVPAT 13489 EVTEE10006
31
VVPAT 13489 EVTEE02749
32
VVPAT 13489 EVTEE07483
41
33
VVPAT 13489 EVTEE01652
34
VVPAT 13489 EVTEE09576
35
VVPAT 13489 EVTEE03079
36
VVPAT 13489 EVTEE07891
37
VVPAT 13489 EVTEE01298
38
VVPAT 13489 EVTEE06344
39
VVPAT 13489 EVTEE08236
40
VVPAT 13489 EVTEE07948
41
VVPAT 13489 EVTEE04390
42
VVPAT 13489 EVTEE01854
43
VVPAT 13489 EVTEE02249
44
VVPAT 13489 EVTEE08124
45
VVPAT 13489 EVTEE02880
46
VVPAT 13489 EVTEE08314
47
VVPAT 13489 EVTEE09098
48
VVPAT 13489 EVTEE05423
49
VVPAT 13489 EVTEE01856
50
VVPAT 13489 EVTEE02790
51
VVPAT 13489 EVTEE05377
52
VVPAT 13489 EVTEE03852
53
VVPAT 13489 EVTEE04020
54
VVPAT 13489 EVTEE09512
55
VVPAT 13489 EVTEE07266
56
VVPAT 13489 EVTEE06137
42
57
VVPAT 13489 EVTEE02713
58
VVPAT 13489 EVTEE07413
59
VVPAT 13489 EVTEE09387
60
VVPAT 13489 EVTEE08242
61
VVPAT 13489 EVTEE03181
62
VVPAT 13489 EVTEE06213
63
VVPAT 13489 EVTEE18013
64
VVPAT 13489 EVTEE07063
65
VVPAT 13489 EVTEE04626
32. Petitioner further contended that each polling station must use Control Unit, Balloting Unit and VVPAT as per the randomization-in-poll report and no other unit can be used other than the units which are used in randomization and mustering as referred to supra.
33. As per the said report, in respect of Constituency No.78, following VVPAT, Control Unit and Balloting Unit were replaced.
(i)VVPAT's replaced in No.78-Kumta Assembly Constituency, Karnataka Legislative Assembly: 43
Sl.No. Polling Station No. Old Unit No. New Unit No. 1 39 EVTEE12596 EVTEE01689 2 149 EVTEE07891 EVTEE07948 3 81 EVTEE04060 EVTEE07483 4 83 EVTEE03595 EVTEE07993 5 72 EVTEE18542 EVTEE07266 6 32 EVTEE07093 EVTEE06344
(ii) Control Unit replaced in No.78-Kumta Assembly Constituency, Karnataka Legislative Assembly:
Sl.No. Polling Station No. Old Unit No. New Unit No. 1 81 ECUEE04651 ECUEE01246 2 72 ECUEE01549 EVTEE02253 (Iii) Balloting Unit replaced in No.78-Kumta Assembly Constituency, Karnataka Legislative Assembly:
Sl.No. Polling Station No. Old Unit No. New Unit No. 1 81 EBUEE01852 EBUEE00418 2 72 EBUEE05600 EBUEE00391 44
34. As per the Act and Rules, each of the polling station is presided over by the Presiding Officer who would maintain number of votes recorded in each such polling station and same would be reported in Form 17C Part I as per Rule 49S of the Rules on the day of voting.
35. Further, on the day of counting, the Returning Officer would count the votes in terms of Rule 56C and same would be recorded in Form 17C Part II of the Rules.
36. Petitioner further contended that VVPAT which were allotted to polling station in terms of randomization list has not been used by the Presiding officer on the date of polling and in the case on hand there are glaring irregularities committed at the time of polling and counting which has materially affect the result of the election.
37. According to the petitioner, irregularity in the Control Unit are as per the below table which did not tally either with Form 17C Part I or Part II in respect of polling station Nos.153, 196 and 208:45
Sl.No. Polling Control Unit Control Unit Control Unit mentioned in mentioned in allotted in the Station Form 17C Part I Form 17C Part randomization II list 1 153 ECUEE00006 ECUEE00006 ECUEE02599 2 196 ECUEE04153 ECUEE02792 ECUEE04153 3 208 ECUEE02792 ECUEE02792 ECUEE02792
38. Likewise, irregularity in the ballot units are as under:
Sl.No. Polling Station No. Old Unit No. New Unit No. 1 102 EBUEE02883 EBUEE02227 2 179 EBUEE06610 EBUEE03610 3 186 EBUEE03662 EBUEE03062
39. Further, the irregularities alleged by the petitioner with respect to VVPAT is as under:
Sl.No. Polling VVPAT mentioned in VVPAT allocated in the Station No. Form 17C Part I randomization list 1 34 EVTEE08236 EVTEE05186 EVTEE02880 EVTEE06670 2 50 EVTEE017923 EVTEE07296 3 75 4 81 EVTEE04060 EVTEE04060 EVTEE07483 5 83 EVTEE03595 EVTEE03595 EVTEE07993 46 6 93 EVTEE08004 EVTEE08004 EVTEE01330 7 113 EVTEE04390 EVTEE04552 8 122 EVTEEU7752 EVTEE07752 9 149 EVTEE07891 EVTEE02996 EVTEE07948 10 161 EVTEE01970 EVTEE14373 11 208 EVTEE05423 EVTEE02576
40. From the above factual aspects, petitioner wants to contend that there is irregularity and illegality in conducting of elections by the Election officials only with an intention to see that respondent No.1 secures the victory at the cost of the petitioner.
41. Further, petitioner contends that on the day of counting also, there were irregularities and on behalf of the petitioner, it was Sri Suraj Ganapathi Naik was the agent of the petitioner who assisted counting agents in all 18 tables with respect to 215 booths in Constituency No.78. He made a specific request for recording of votes maintained in Form 17A. But counting officials did not 47 furnish permit copy of Form 17A which establishes that there was high handed collusion by officials with respondent No.1 while counting as well.
42. Petitioner further contended that the counting process commenced on 13.05.2023 at 8.44 am and was concluded at 12.29 pm on the same day. However, counting of postal ballots commenced at 8.30 am and was completed at 2.26 pm. It is further contended that there is no video recording of counting of votes in EVM from 10.01 am to 10.48 am which is in violation of clause 15.16 of the Handbook of Returning Officer.
43. Counting of EVM was also done in a haphazard manner, contrary to clause 15.16 of Handbook of Returning Officer.
44. The compact disc maintained by the election officials would show that video recording has stopped from 10.01 am to 10.48 am.48
45. It is also contended on behalf of the petitioner that process adopted by the election officials in completing the process of counting of EVM votes before the counting of ballot papers is contrary to clause 15.15.3(9) of Handbook for Returning Officer (Document 23-Edition 2), August 2022. Endorsement dated 19.06.2023 issued by the Returning Officer along with copy of eight compact discs relating to counting day would clearly establish the above facts.
46. Therefore, petitioner is before this Court with the following prayer:
"WHEREFORE, it is most humbly and respectfully prayed that this Hon'ble Court may be pleased to:
(a) Call for records and video recordings;
(b) Order for recounting of all votes polled in No.78-Kumta Assembly Constituency, Karnataka Legislative Assembly as per the Randomisation List vide Annexure-R;49
(c) Order for recounting of all ballot papers in No.78-Kumta Assembly Constituency, Karnataka Legislative Assembly;
(d) Set-aside the election of the respondent No.1 to the 16th Karnataka Legislative Assembly from No.78-Kumta Assembly Constituency, Karnataka Legislative Assembly (declared vide Annexure-B, dated 13.05.2023);
(e) Declare petitioner as duly elected to fill seat of No.78-Kumta Assembly Constituency, Karnataka Legislative Assembly;
(f) Pass such other order/s, grant such other relief/s as this Hon'ble Court deems fit in the facts and circumstances of the case, in the interest of justice."
47. The contesting respondent appeared before the Court by engaging the services of an advocate and filed written statement contending that election petition is not maintainable in law or on facts and it should be dismissed in limine.
48. It was also contended that petition is not maintainable in view of the fact that the prayer of the 50 petitioner is for recounting of votes at one breath and in another breath, he has sought for declaring that petitioner is the successful candidate in the election.
49. Respondent No.1 also contended that the material facts and material particulars pleaded in the petition are against the mandate of the provisions of Representation of Peoples Act and on that score also petition needs to be dismissed.
50. Respondent No.1 contended that he has been elected three times as the member of the legislative assembly from Kumta Constituency. Therefore, people of Kumta Constituency have reposed confidence in him for his developmental work in the constituency and efforts he has made.
51. Respondent No.1 denied the contentions of the petitioner that there was no proper counting of votes, in view of Annexure-F which is the order of the Returning Officer in response to Annexure-E. Respondent No.1 also 51 contended that in Annexure-E itself, petitioner has contended that there are mismatch of votes recorded by his election agent and therefore, recounting of votes was sought for. But there was no material facts and material particulars about the alleged mismatch of votes. As such, the order passed vide Annexure-F in response to Annexure-E is just and proper and when once same has been put to an end, said question cannot be reagitated by the petitioner before this Court.
52. Respondent No.1 did not controvert the averments made in paragraphs 3 to 7 by contending that they are based on material records. Respondent No.1 denied the averments made in paragraph 8 of the petition in toto.
53. In respect of paragraph 9 of the petition, respondent No.1 maintained that the Returning Officer mandated to first count the postal ballot papers which is in due compliance with Rule 54A of the Conduct of Election Rules and there were 2,243 postal ballot votes including other ballots such as home voters, service voters etc., 52
54. It is also contended that even further averments with regard to discrepancy pointed out in respect of counting postal ballots in favour of petitioner and respondent No.1 is denied by the respondent categorically.
55. Respondent No.1 maintained that there was no necessity to reject 360 votes secured by respondent No.1 as there was no violation of Rule 54A(8) of the Rules. Further he maintained that counting of postal ballots of 869 votes in favour of respondent No.1 and 759 votes in favour of petitioner is as per the Rules and contra contentions in this regard are denied.
56. It is also contended by first respondent that there was no complaint in writing with regard to the improper counting of postal ballots. Same should have been objected and written protest ought to have been lodged. But no such protest was lodged which exposes the hollowness in the claim of the petitioner. 53
57. In regard to contention of petitioner in paragraph 10, first respondent contended that the returning Officer and Election officials have followed the necessary Rules and contra allegations in this regard is denied by him as false, vexatious, untrue, baseless and untenable.
58. First respondent also maintained that there was no violation of Rule 54 or any other provisions of the Conduct Rules. With regard to Annexure-D, first respondent maintained that the Returning Officer clearly set out votes polled in each of the rounds in the four tables kept for postal ballots. Total invalid votes, the total votes polled to NOTA and total rejections due to improper declaration were set out in a clear and categorical terms and petitioner did not dispute the result declared by the Returning Officer.
59. It is also maintained by the first respondent that there was no protest filed by the petitioner at the earliest point of time when there was rejection of vote of 301 members or 360 votes of respondent No.1 which were 54 required to be counted in favour of the petitioner. First respondent also maintained that as an afterthought, being unable to digest the result of the election, with an ulterior motive, allegations are made in paragraph 9 of the Election Petition and as such, he denies those allegations.
60. Allegations made in paragraph 11 regarding counting of ballot papers and recording of EVM which were contrary to clause 15.15 of the Hand Book of Returning Officer, first respondent contended that those allegations are far from truth, false, vexatious and untenable.
61. Likewise, with regard to the contents of paragraph 12 of the Election Petition, addressing letter to the Returning Officer at 3.30 pm on 13.05.2023 regarding votes recorded in EVM is depicted as per the record maintained by the Returning Officer, but further averments with regard to receipt of the letter at 3.30 pm on 13.05.2023 by the Returning Officer were all subject to proof.
55
62. Regarding paragraph 13, first respondent again maintained that the allegations are subject to proof and material on record.
63. Likewise, with regard to averments made in paragraphs 14 to 20 with respect to Annexures-G to N were matters of record as per the respondent No.1.
64. With regard to paragraph 21 wherein the petitioner has pointed out various irregularities alleged against him, respondent No.1 categorically denied that all those allegations are baseless.
65. Likewise, allegation made in paragraph 22 is denied by the first respondent emphatically.
66. In regard to the contents of paragraph 23 are concerned, respondent No.1 emphatically denied that there was no excess votes counted. On the contrary, Form 20, Final Result Sheet is placed on record vide Annexure- R1. Contents of Annexure-R1 with regard to final result is extracted hereunder for ready reference: 56
Form No.20 Final Result Sheet ELECTION TO THE LEGISLATIVE ASSE Total No. of Electors in Assembly Constituency /Segment.....188894 Name of Assembly/segment.. 78-Kumta Assembly Election No. of Valid Votes Cast in favour of Dinakar Alva Roopa Suraj Dineshchandr Nagaraj Ishwar Gani Subrahmanya Total of No. of NOTA Total No. of Serial Keshav Nivedith Gajanan Naik a N.Angadikeri Sridhar Gouda imamsab bhat madguni valid Rejecte tendere No. of Shetty Naik Soni Shet jainuddin votes d votes d votes Polling Station 59096 19050 1959 58530 706 455 3552 679 516 144543 0 2063 146606 0 Total EVM Votes 869 220 1 759 1 3 36 7 6 1902 319 22 2243 0 Total Postal Ballot Votes Total 59965 19270 1960 59289 707 458 3588 686 522 146445 319 2085 148849 0 Votes Polled 57
67. With regard to allegations found in paragraph 24 of the Election Petition regarding supply of balloting unit, control unit and VVPAT, first respondent denied the same stating that the allegations are far from truth and first respondent is not aware of units allotted in control and ballot units.
68. Likewise, with regard to allegations made in paragraph 25 of the Election Petition regarding units which were in the reserve list which should be used in the case of contingency are matters of record and allegations were far from truth.
69. Likewise, the allegations made in paragraphs 26 and 27 are denied by the respondent No.1. In regard to paragraph 27 is concerned, respondent No.1 pointed out that even according to the petitioner, allegation of irregularity pertaining to ballot unit, petitioner was in lead in one booth and respondent No.1 in two booths. When all three booths are considered, petitioner has gained 300 58 votes lead inasmuch as in respect of discrepancy pointed out by the petitioner, in those booths, petitioner has gained 905 votes as against 609 votes secured by the first respondent which is approximately 33% lead over the votes in favour of first respondent. As such, even assuming that minor irregularities in the ballot unit has taken place, which is emphatically denied by the first respondent contending that no prejudice has been caused to the petitioner.
70. Similarly, with regard to paragraph 27 C , the first respondent emphatically denied the allegations made in the Election Petition and alleged irregularities with regard to VVPAT in 11 polling stations.
71. In regard to contentions urged in paragraph 28, first respondent pleaded that he was not aware of Sri Suraj Ganapathi Naik being the election agent of petitioner and denied further allegations therein.
59
72. The first respondent also maintained that allegations urged by the petitioner in paragraphs 25 to 28 are completely contrary to the contents of Annexure-E relied on by the petitioner himself.
73. Respondent No.1 also denied the contents of paragraph-29 of the Election Petition by contending that there was no violation of regulation 15.16 of Hand Book of Returning Officer as alleged. The first respondent further denied the contents of Exs.P.30 to 33.
74. Lastly, the first respondent stated that in the light of the material placed on record by the petitioner himself, the Election Petition prayer could not be granted and sought for dismissal of the Election Petition with costs.
75. Based on the rival contentions and with the assistance of the contesting parties, this Court framed the following issues:
i) Whether the petitioner proves that 360 Postal Ballot Papers which were casted in favour of the respondent No. 1 needs to be rejected?60
ii) Whether 301 Postal Ballot Papers which were casted in favour of the petitioner have been improperly rejected?
iii) Whether the petitioner proves that irregularities in Form 17C Part-I and Form 17C Part-II in respect of Poling Station No. 153, 196 and 208, wherein the Electronic Voting Machines (EVM) used on the counting day were never counted, which has materially affected the result of the Election?
iv) Whether the petitioner proves that there are irregularities in the VVPAT used in Polling Station No.39, 149, 81, 83, 72 and 32 In No. 78-Kumta Assembly Constituency, Karnataka Legislative Assembly?
v) Whether the petitioner proves that the Control Units in Polling Station No.81 and 72 have been replaced in No.78- Kumta Assembly Constituency, Karnataka Legislative Assembly?
vi) Whether the petitioner proves that the Balloting Unit in Polling Station No.81 and 72 have been replaced in No.78- Kumta Assembly Constituency, Karnataka Legislative Assembly?
76. In order to prove the case of the petitioner, petitioner got examined himself as P.W.1 and placed on 61 record the following documents which were exhibited and marked as Exs.P.1 to P.43 comprising of following:
(1) Authenticated copy of the list of contesting candidates in Form-7A from No.78-Kumta Assembly constituency, Karnataka legislative Assembly is marked as Ex.P.1.
(2) Authenticated copy of the Declaration result in Form 21C is marked as Ex.P2.
(3) Authenticated copy of the return of Election, Form 21E is marked as Ex.P3.
(4) Authenticated copy of the result of postal ballot counting for No.78-Kumta Assembly Constituency, Karnataka Legislative Assembly is marked as Ex.P4.
(5) Acknowledged copy of the letter by the petitioner dated 13.05.2023 at 3.30 pm. is marked as Ex.P5.
(6) Original order dated 13.05.2023 passed by the returning officer to No.78-Kumta Assembly constituency, Karnataka Legislative Assembly is marked as Ex.P.6.
(7) Acknowledged Copy of the letter dated 15.05.2023 and 16.05.2023 are marked as Ex.P.7 and Ex.P8.62
(8) Original letter dated 19.05.2023 is marked as Ex.P.9.
(9) Acknowledged Copy of the letter dated 20.05.2023 is marked as Ex.P10.
(10) Original endorsement dated 20.05.2023 is marked as Ex.P11.
(11) Authenticated Copy of the letter dated 24.05.2023 bearing No.GEN/ELN-CR-06/2022-23 issued by the District Election Officer and Deputy Commissioner, Uttara Kannada Karwar to the petitioner is marked as Ex.P12.
(12) Certified copy of the Order dated 08.06.2023 passed in W.P.No.103406/2023 is marked as Ex.P13.
(13) Copy of the letter dated 10.05.2023 by the District Election Officer to the Chief Electoral Officer, Karnataka bearing No.GEN/ELN/CR/06/2023-24 subject to production of certified copy thereof subject to objection of respondent is marked as Ex.P14. (14) Acknowledged copy of the letter dated 12.06.2023 is marked as Ex.P15.
(15) Authenticated Copy of the Form No.20 Final Result Sheet is marked as Ex.P16.
63(16) Authenticated Copy of the Second Randomization In-Poll Report with respect to No.78- Kumta Assembly Constituency, Karnataka Legislative Assembly is marked as Ex.P17.
(17) Authenticated Copy of the Second Randomization Reserve Report is marked as Ex.P18. (18) Authenticated Copy of the replacement report with respect to VVPAT is marked as Ex.P19. (19) Authenticated Copy of the replacement report with respect to control Unit is marked as Ex.P20. (20) Authenticated Copy of the replacement report with respect to Ballot Unit is marked as Ex.P21. (21) Authenticated Copy of the Form No.17C Part I with respect to polling station No.153 is marked as Ex.P22.
(22) Authenticated Copy of the Form No.17C Part 1 with respect to polling station No.196 is marked as Ex.P23.
(23) Authenticated Copy of the Form No.17C Part 1 with respect to polling station No.208 is marked as Ex.P24.
(24) Authenticated Copy of the Form No.17C part II with respect to polling station No.153 is marked as Ex.P25.
64(25) Authenticated Copy of the Form No.17C Part II with respect to polling station No.196 is marked as Ex.P26.
(26) Authenticated Copy of the Form No.17C Part II with respect to polling station No.208 is marked as Ex.P27.
(27) Authenticated Copy of the Form No.17C Part I with respect to polling station No.102 is marked as Ex.P28.
(28) Authenticated Copy of the Form No.17C Part I with respect to polling station No.179 is marked as Ex.P29.
(29) Authenticated Copy of the Form No.17C Part I with respect to polling station No.186 is marked as Ex.P30.
(30) Original Form 17C Part I handed over to the polling agent is marked as Ex.P.31.
(31) Authenticated Copy of the Form No.17C Part I with respect to polling station No.34 is marked as Ex.P.32.
(32) Authenticated Copy of the Form No.17C Part I with respect to polling station No.50 is marked as Ex.P33.
65(33) Authenticated Copy of the Form No.17C Part I with respect to polling station No.75 is marked as Ex.P34.
(34) Authenticated Copy of the Form No.17C Part I with respect to polling station No.81 is marked as Ex.P35.
(35) Authenticated Copy of the Form No.17C Part I with respect to polling station No.83 is marked as Ex.P36.
(36) Authenticated Copy of the Form No.17C Part I with respect to polling station No.93 is marked as Ex.P37.
(37) Authenticated Copy of the Form No.17C Part I with respect to polling station No.113 is marked as Ex.P38.
(38) Authenticated Copy of the Form No.17C Part I with respect to polling station No.122 is marked as Ex.P39.
(39) Authenticated Copy of the Form No.17C Part I with respect to polling station No.149 is marked as Ex.40.
(40) Authenticated Copy of the Form No.17C Part I with respect to polling station No.161 is marked as Ex.P41.
66
(41) Original Endorsement dated 19.06.2023 is marked as Ex.P42.
(42) Certified copy of the certificate bearing No.HCA-I/DB(JD)/EP/2023 vide R.O.No.26388 dated 19.06.2023 for having deposited the cost of Rs.2,000/- is marked as Ex.P.43.
77. The Returning Officer by name Sri Santosh B. Jalagasar is examined as P.W.2.
78. In the affidavit filed in lieu of examination-in-chief, petitioner who has been examined as P.W.1 has reiterated the contents of the election Petition.
79. In his cross-examination, it is elicited that petitioner visited the counting hall on 13.05.2023 at about 1.00 pm. He has answered that his counting agents were present even before the counting commenced and they remained in the counting hall till the entire counting process was completed and results were declared.
80. To a specific question that whether he has signed the prescribed format after completion of counting of other 67 polling booths, witness answered that his agent signed few forms and in few forms they raised some objections. He admits that before counting of EVM is commenced, postal ballots were counted. He has evasively answered that he does not remember the name of the counting agent who participated in the postal ballot counting.
81. To yet another specific question whether his counting agent objected for counting postal ballot in writing, petitioner has answered that he received some objections from his counting agent. Therefore he visited the counting hall at 1.30 pm. At that time, still postal ballots were being counted. He denied the suggestion that all the postal ballots were properly counted and therefore, there was no protest in writing.
82. To a specific question as to whether any written objections were raised by the counting agent, witness has answered that counting agent has made an oral objection to the concerned Officer. Ex.P.5 was confronted to the witness and questioned whether any oral objection has 68 been recorded in Ex.P.5. Witness after verifying Ex.P.5 answers that no such oral objection raised has been entered in Ex.P.5.
83. He also admits that there is no mention in Ex.P.5 that 360 postal ballots which were voted in his favour have not been taken into account by the counting authorities and also there is no mention that 360 invalid votes are to be counted in his favour.
84. He admits that final figure of number of votes casted in Kumta Assembly segment in the General Assembly Election, the Returning Officer has given the final figure as 1,48,840. He further admits that same is based on the number of votes casted in each of the polling stations which were polled as per Form 17C.
85. Witness also admits that information provided by him in paragraph 26 of the Head Note 'B' is correct with regard to replacing list. He also admits that in booth No.153 out of total votes casted, 304 votes have been 69 casted in his favour and first respondent has got only 66 votes. He further admits that likewise in respect of booth No.196, petitioner received 310 votes whereas, first respondent received only 194 votes. He would further admit that in respect of booth No.208, 145 votes were received by him and 467 are casted in favour of first respondent. There is also admission that in respect of booth No.102, petitioner received 143 votes and first respondent got 248 votes, and in respect of booth No.175, petitioner got 654 votes and respondent No.1 got 192 votes.
86. Witness further admits that in respect of booth No.186, petitioner got 108 votes and first respondent got 169 votes. He admits that in respect of irregularity complained by him in respect of booth Nos.102, 179 and 186 he gained 300 votes lead than the first respondent. He admits that the data provided in paragraph 27C of the Election Petition is correct and in booth No.34, he got 375 votes as against 222 casted in favour of first respondent. 70
87. Petitioner admits that he has perused the statement of objections filed by the first respondent and data provided in paragraph 26 of the statement of objection is correct.
88. To a specific question that the data provided in Form 17C Part I tallied with data provided in Form 17C Part II, witness has admitted that the data in both the forms did tally. Witness further admits that in booth No.29 control unit was not properly working and therefore, by consent of the counting agents, slips which were stored in VVPAT unit were taken out and they were counted. He also admits that contents of Ex.P.6 and endorsement as correct.
89. In his further cross-examination, P.W.1 admits that neither himself nor his counting agent has raised any written objection with regard to rejection of 301 postal ballots. He also admits that there is no specific mention about recounting of postal ballots in his request sent to Returning Officer. He admits that there was no impediment for him to raise such written objection. He 71 further admits that contents of Ex.P.4 is correct and he did not raise any objection to same. He admits that he has not noted the number of 360 postal ballots allegedly counted in favour of respondent No.1 nor his agent did so.
90. He further admits that even on the date of further cross-examination i.e., 12.08.2024 he has not raised any dispute in regard to improper counting of postal ballot in writing. He also admits that the details mentioned in Ex.P.4 on the day of election was only up to 6.00 pm and it was tentative in nature and not the final number of votes polled. He admits that three units viz., Control Unit, Balloting Unit and VVPATs are under the control of Chief Election Officer and same would be sent to polling stations under the seal and signature of the Chief Election Officer.
91. He admits that he does not know whether the polling agent brought to the notice of the polling officer about the irregularities or discrepancies in the units that were used in three polling stations as is mentioned by him in paragraphs 27(A)(B)(C) of the Election Petition. 72
92. He admits that whatever stated in paragraph 26 of the statement of objections filed by respondent No.1 is depicting the true data. He admits that all the polling stations had secret ballot polling.
93. On behalf of petitioner, a witness by name Sri Santosh B. Jagalasar, is examined as P.W.2. He was the Returning Officer of the General Elections for the Kumta Constituency. He has deposed that the election to the Legislative Assembly in the State of Karnataka commenced on 13.04.2023 and ended on 13.05.2023. He has discharged his duty as Returning Officer. He has received 120% of control unit, ballot unit in respect of polling booths and 130% of VVPAT units. He deposed that the contents of Ex.P.17 is true and so also distribution of three units viz., Control Unit, Ballot Unit and VVPAT across 215 polling stations which are covered under Exs.P.17 and 18.
94. On confrontation of contents of Exs.P.17 and 18, he has been questioned about distribution of three units in respect of polling station Nos.39, 81 and 83. After 73 verifying the contents, the witness has answered that discrepancy in VVPAT units is on account of replacing of VVPAT units. He has further deposed that entire counting process was videographed and if there is any direction, he would produce the records in compact disc or pen drive.
95. To a specific question whether counting of ballots in VVPAT was commenced after the counting of postal ballot, witness has answered that as per the guidelines of Election Commission of India commencement of postal ballot unit preceded the counting of VVPAT and answered that counting of VVPAT was commenced after counting of postal ballots in toto.
96. He has deposed that he was personally present in the counting station till up to 17th or 18th round of counting. He has further deposed that after counting of each round, the votes secured by the contesting candidates would be written on a board. He admits that there was difficulty in videographing on the day of counting between 10.15 am to 11.00 am. He further 74 answered that Part I of Form 17C would be filled up on the date of polling and Part II of Form 17C would be filled up on the counting day. He has answered that as per Ex.P.22, in polling Station No.153 viz., Hegade Hitlu, Karki, the control unit deployed was having the No.ECUEF-00006.
97. When questioned that the control unit serial number mentioned in Part I of Form 17C did not find place in randomization list as per Exs.P.17 and 18, the witness has answered that the control unit bearing Sl.No.ECUEF-00006 is a replaced control unit. Likewise, he has answered that in respect of polling station No.196, Part I of Form 17C and Part II of Form 17C did not tally.
98. On confronting Exs.P.24, 26 and 27, the witness has stated that the control unit mentioned in those polling stations are one and the same though polling station numbers are mentioned as 208 and 196. He denied the suggestion on behalf of petitioner that control unit used in respect of polling station Nos.153, 208 and 196 are not used at the time of counting. He also denied the 75 suggestion that the control unit used in polling station Nos.153, 208 and 196 are not found in Exs.P.17 and 18. He denied the suggestion that Ex.P.28 does not find place in randomization list, so also, he disagreed with the suggestion that ballot unit mentioned in Ex.P.29 in respect of polling station No.179 is not found in randomization list or reserve list.
99. He also denied that serial number of VVPAT in respect of polling station Nos.34, 50, 75, 81, 83, 93, 113, 122, 149, 161 and 208 are not found either in randomization list or reserve list.
100. In his cross-examination, to a specific question whether the petitioner or his agents objected for counting of postal ballots, the witness answered in the negative. So also, to a question with regard to any objection raised by petitioner or his polling agents for replacement of control unit, ballot unit, witness has answered that neither the petitioner nor his polling agents have objected for replacement.
76
101. He has accepted the suggestion that election and counting was conducted in accordance with Rules and Regulations.
102. On behalf of respondents, respondent No.1 got examined himself as R.W.1.
103. In the affidavit filed by respondent No.1 in lieu of examination-in-chief, R.W.1 has reiterated the contents of his objection statement practically in verbatim.
104. On behalf of the respondent No.1, no documentary evidence is placed on record.
105. In the cross-examination of R.W.1, he admits that in respect of subject matter of election, R.W.1 has contested for the sixth time for the Member of Legislative Assembly of Kumta Constituency.
106. He admits that in the year 2004, elections were conducted by using Electronic Voting Machine instead of physical ballot papers. He admits that electronic voting mechanism comprises viz., control unit, ballot unit and 77 VVPAT and in all 215 polling stations electronic voting took place. He admits that every polling unit possesses a Unique Identification Number which is mentioned in Part I of Form 17C. Witness attention was drawn to Ex.P.22 and questioned that it is in respect of polling station No.153 an entry is made in Part I of Form 17C and similarly the entries made in Exs.P.23 and 24. Witness admitted the same.
107. He also admits that Part II of Form 17C would be furnished to the counting agents of the respective candidates on the day of counting. After so admitting, witness also admits the contents of Exs.P.25, 26 and 27. He denied that he has filed a false affidavit in lieu of examination-in-chief.
108. On the basis of the above factual aspects, in the pleadings and oral and documentary evidence placed on record by the parties, both the parties have filed their written submissions and also addressed oral arguments. 78
109. After the written submissions were filed by learned counsel for the respondent No.1, petitioner has filed additional written statement and placed on record the judgment of the Hon'ble Apex Court in the case of Birad Mal Singhvi vs. Anand Purohit reported in 1988 (Supp) SCC 604, wherein, it is held as under:
"10. xxx xxx xxx In the absence of any material before the returning officer, the Returning Officer was not wrong in taking the entries in the electoral roll into consideration and acting on them. But his decision is not final. In an election petition it is open to an election petitioner to place cogent evidence before the High Court to show that the candidate whose nomination paper was rejected had in fact attained the age of 25 years on the relevant date. It is open to the High Court to take a final decision in the matter notwithstanding the order of the Returning Officer rejecting the nomination paper. If on the basis of the material placed before the High Court it is proved that the candidate whose nomination paper had been rejected was qualified to contest the election it is open to the High Court to set aside the election. Enquiry during scrutiny is summary in nature as there is no scope for any elaborate enquiry at that stage. Therefore it is open to a party to place fresh or additional material before 79 the High Court to show that the returning officer's order rejecting the nomination paper was improper. It should be borne in mind that the proceedings in an election petition are not in the nature of appeal against the order of the returning officer. It is an original proceeding. In the instant case it was open to the respondent election petitioner to place material before the High Court to show that the two candidates were qualified and their nomination paper was improperly rejected."
110. Petitioner also placed on record the decision of the Hon'ble Apex Court in the case of Jibontara Ghatowar vs. Sarbananda Sonowal and others reported in (2003)6 SCC 452. The relevant portion of the said judgment is culled out hereunder for ready reference.
"14. A bare reading of the rules shows that the obligation is cast on the polling officer to stamp with such distinguishing mark as the Election Commission may direct and to sign in full on the back of the ballot papers. The candidate has no role to play in the performance of such duty by the polling officer. Absence of mark and the signature renders the ballot paper liable to be rejected. However, still, where the Returning Officer feels satisfied that such defect has been caused by any mistake or failure on the part of 80 the Presiding Officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect. An analysis of this rule and the legal implication thereof may not detain us any longer inasmuch as we find these rules having been dealt with in Arun Kumar Bose v. Mohd. Furkan Ansari [(1984) 1 SCC 91] , wherein this Court found that the absence of signature and distinguishing mark on seventy-four ballot papers was attributable to failure on the part of the Presiding Officer. Having found so, the Court held: (SCC p. 101, para 14)"
It was the obligation of the Presiding Officer to put his signature on the ballot papers before they were issued to the voters. Every voter has the right to vote and in the democratic set-up prevailing in the country no person entitled to share the franchise can be denied the privilege. Nor can the candidate be made to suffer. Keeping this position in view, we are of the definite view that the present case is one of failure on the part of the Presiding Officer to put his signature on those ballot papers so as to satisfy the requirement of law. The proviso, once it is applicable, has also a mandate that the ballot paper is not to be rejected. We, therefore, hold that the ballot papers were not liable to be rejected as the proviso applied and the High Court, in our opinion, came to the 81 correct conclusion in counting these ballot papers and giving credit thereof to Respondent 1." It is pertinent to note that it is nobody's case that 824 ballot papers were spurious. The present one is not a case of booth-capturing or rigging. In an election dispute, there are not the candidates alone who are the persons interested. In a democratic set- up, as is ours, in an election, the fate of the whole constituency is at stake and every voter and every citizen has, therefore, an interest in that candidate being returned to assembly who has secured the majority of the valid votes. An election dispute cannot be decided on concessions contrary to law. A defect in the ballot papers in the light of Rule 38(1) read with Rule 56(2)(h) having been detected, the issue had to be decided by the satisfaction of the Returning Officer. The concession given by candidates or their election agents submitting to a decision arrived at by the Returning Officer in accordance with law may come in the way of that candidate turning around and disputing a doubtful position of law taken as resolved and conceded or accepted. In an election dispute, a consensus contrary to law or a failure to discharge statutory obligation cast on an election officer which has resulted in prejudicing the result of the election, cannot ipso facto claim immunity from challenge. In the present case the Returning Officer has clearly 82 failed in discharging his obligation cast by the first proviso below clauses (g) and (h) of sub-rule (2) of Rule 56. Disagreeing with the High Court, therefore, we hold that these 824 ballot papers should have been included for the purpose of counting."
111. In the written submission, learned counsel for the petitioner has reiterated the grounds urged in the Election Petition to contend that elections were not properly conducted in view of the fact that the control unit and VVPAT units which were found in randomization list or reserve list have not been used in the election and therefore, conduct of the election is bad.
112. So also, petitioner maintained that the postal ballots were not properly counted and therefore, sought for election of respondent No.1 to be declared as bad.
113. The main submission on behalf of the petitioner is as under:
I. The main ground in the Election Petition by Election Petitioner is that, the votes recorded in Electronic Voting Machines (EVM) at Polling 83 Station(s) No(s) 153, 196 and 208 have not been counted at all.
II. EVM contains three units namely Control Unit, Ballot Unit & VVPAT Unit and same is clearly and categorically stated in paragraph No. 24 of the Election Petition, which is admitted by the PW2 as well in his examination.
III. The balloting unit(s), Control unit(s), VVPAT(s) allotted to N0.78/ Kumta is specifically pleaded at paragraph No.24 & 25 and in support of same Ex.P- 17 & P-18 are marked. Therefore, no other machine in the form of balloting unit (S), Control unit(s), VVPAT(s) can be used in entire process other than the once mentioned in Ex.P-17 & P-18. the said fact has been admitted by the Returning Officer in his cross examination.
IV. It is submitted that, the details of VVPAT are as hereunder:
Sl.No. Polling VVPAT VVPAT found Whether the station assigned in in replaced No. second replacement VVPAT finds a randomization report place in list Ex.P.17 Ex.P.19 reserve list Ex.P.18 1 32 EVTEE07093 EVTEE06344 YES (Sl.No.38) 2 39 EVTEE12596 EVTEE01689 No 3 72 EVTEE18542 EVTEE07266 YES (Sl.No.55) 84 4 81 EVTEE04060 EVTEE07483 YES (Sl.No.32) 5 83 EVTEE03595 EVTEE07993 YES (Sl.No.8) 6 149 EVTEE02996 EVTEE07948 YES (Sl.No.40) V. It is submitted that, the details of the Control Units replaced are as hereunder:
Sl.No. Polling Control Unit Replacement Whether the station assigned in report control unit No. Ex.P.17 Ex.P.20 replaced is Randomization found in the List reserve list Ex.P. 1 72 ECUEE01549 ECUEE02253 YES (Sl.No.43) 2 81 ECUEE04651 ECUEE01246 YES (Sl.No.34) VI. It is submitted that, the details of the Ballot Units replaced are as hereunder:
Sl.No. Polling Ballot Unit Replacement Whether the station assigned in report Ballot unit No. Ex.P.17 Ex.P.21 replaced is Randomization found in the List reserve list Ex.P.18 1 72 EBUEE05600 EBUEE00391 YES (Sl.No.11) 2 81 EBUEE01557 EBUEE00418 YES (Sl.No.4) VII. The following VVPAT Machines which have been used at the time of polling are neither found in Ex.P- 17 or P-18, the details as hereunder:85
Sl.No. Polling No. of Votes VVPAT Unit No. of votes station Polled/VVPAT No. which is polled.
No. Unit No. which used for
ought to be polling
used for
polling
1 39 EVTEE12596 EVTEE01689 1000
Total votes polled in the three polling 1000
VIII. It is submitted that the VVPAT was introduced for the first time by amending the Representation of People Act, 1951 and Conduct of Election Rules, 1961 with effect from 14.08.2013. Proviso to Rule 49A, Rule 49E and Rule 66A have been suitable amended pursuant to the introduction of VVPAT. The Returning officer is bound by the directions of the Election Commission of India. The EVM consist of (1) Control Unit(s), (2) Ballot Unit(s) and (3) VVPAT(s). The Election Commission of India is statutorily bound to send the said Control Unit, Ballot unit and VVPAT as described in the 2nd Randomization Report at Ex.P-17. Further, in addition to Ex.P-17, Certain machines would be sent under the reserve category, which is forthcoming at Ex.P-18. None other unit other than one mentioned Ex.P-17 & P-18 can be used during the Election process unless it is specifically ordered by Election Commission of India. 86 IX. It is submitted that Form 17C Part-I is a statutory form used by the Election Officials on the day of Polling. The Control Unit used on the day of Polling has never been counted on the date of counting, there have been three Instances in the present Election. The details are as hereunder: Sl.No. Polling Control unit Control unit Total no. of station mentioned in mentioned in votes polled.
No. Form 17C Part Form 17C
I Part II
1 153 ECUEE00006 ECUEE00006 409
2 196 ECUEE04153 ECUEE02792 534
3 208 ECUEE02792 ECUEE02792 881
Total votes 1824
Therefore, the votes which were polled on the date of polling insofar as three polling station are concerned l.e polling station number 153, 196, & 208 have not been counted at all. Therefore, this Hon'ble Court has to order for recounting of votes with respect these three polling stations more particularly the Control Units which have been used on the date of polling.
X. Insofar as one VVPAT machines which have been used for voting, one VVPAT machines does not find the place in both Ex.P-17 & P-18 and therefore, the votes recorded in the said polling station are vold votes, i.e., 1000 votes. Therefore, the margin of 87 election being 676 votes and that the polling stations have recorded 1000 votes, the result of the Election has been materially affected on this Ground itself the Election is liable to be set aside.
XI. The Hon'ble Supreme Court of India in case of A.C.Jose V. Sivan Pillai, Reported in (1984) 2 SCC 656 (Paragraph 25 & 39) has clearly and categorically held that the Election has to be conducted in a manner known to the statute and if there is a violation of statute or its rules or the orders of the ECI, election is liable to be set-aside.
XII. The Hon'ble High Court of Karnataka in the case of Dr. Kanthi Rajashekhar Kidiyappa Vs. P.H Pujar and others reported in 2000 SCC Online Kar 912, at Paragraph No. 74 set aside the election and directed the Returning Officer to recount the Ballot Papers. The said Judgement was challenged by Mr. P.H Pujar before the Hon'ble Supreme Court, which was subsequently reported in (2001) 6 SCC 558 wherein the Hon'ble Supreme Court of India keeping the civil appeal pending ordered for recount of 3872 Ballot Papers, which were rejected and not counted at all in the first instance (Paragraph No. 10). In the very same case, the Supreme Court of India after receiving the 88 report regarding the recount, from the Registrar of the Hon'ble High Court of Karnataka, Bengaluru where there were discrepancies in the votes recorded, however, the result of the election did not change, set aside the order of the Single Judge since the order of recount was ordered after setting aside the election (Paragraph No. 15). The said Judgement was reported in (2002) 3 SCC 742.
XIII. The Hon'ble Supreme Court of India in the case of Ram Sewak Yadav Vs. Hussain Kamil Kidwai and others reported in AIR 1964 SC 1249 (Paragraph 3 and 6) has clearly and categorically held that subject to Section 94 and Section 128 of the Representation of People Act, 1951, the Election Tribunal has the power to order for inspection of ballots. XIV. The Hon'ble Supreme Court of India in the case of Basangouda Vs. Dr. S.B Amarkhed and others reported (1992) 2 SCC 612 (Paragraph No. 9) has clearly and categorically held that the court has the power to open the counter foils and the marked electoral roll if it is satisfied that a case for recount is made out.
XV. The Hon'ble Supreme Court of India in the case of M Chinnasamy Vs. K.C Palanisamy and others reported in (2004) 6 SCC 341 (Paragraph 20 to 43), 89 has clearly and categorically held that, if the court finds that the election of the Returned Candidate has been materially affected, then the court, on the precise statements of material facts, permit for recounting of ballots.
XVI. In the present case, the margin of victory is 676 votes. The 1824 (stated in Paragraph (v) supra) votes which were polled on the date of polling insofar in three polling station number (s) 153, 196, & 208 have not been counted at all. Therefore, the number of votes not being counted being greater than the victory margin clearly. establishes that the rest of the election has been materially affected. Therefore, in view of the law declared by the Hon'ble Supreme Court of India as stated above, the petitioner has made out a case for recounting of the three polling stations.
XVII. Insofar as the on VVPAT machines which have been used for voting, as stated in paragraph (iv) and
(vii) supra don't find the place in both Ex.P-17 & P- 18 and therefore, the votes recorded in the said three polling station 39 are void votes, l.e., 1000 votes. Admittedly, no machines other than the ones mentioned in the Second Randomisation List or the Reserve List can be used in the election. Therefore, the margin of election being 676 votes and that the polling station No. 39 has recorded 1000 votes, the 90 result of the Election has been materially affected on this Ground itself the Election is liable to be set aside.
XVII. It is submitted that the Ballot Papers have been counted and rejected contrary to Rule 54A of the Conduct of Election Rules, 1961 since Form 13-A has not been attested by Gazzetted Officer. Further, the petitioner specifically requested for Postal Ballots (Document No. v in Ex P8). However, the same was not provided to the petitioner and the same is forthcoming vide Endorsement vide Ex. P11. Therefore, all the Postal Ballots have to be recounted since the margin of victory is very less and that the result of the election is materially affected.
114. Learned counsel for the petitioner, in support of above submissions, placed on record the following judgments.
(i) Dr.Kanthi Rajashekar Kidiyappa vs. P.H.Pujar and Others, 2000 SCC Online Kar 912.
(ii) P.H.Pujar vs. Kanthi Rajashekar Kidiyappa and others, (2001)6 SCC 558,
(iii) P.H.Pujar vs. Kanthi Rjashekar Kidiyappa and others (2002)3 SCC 742.
91
(iv) Ram Sewak Yada vs. Hussain Kamil Kidwai and others AIR 1964 SC 1249.
(v) Basangouda vs. Dr.S.B.Amarkhed and others (1992)2 SCC 612.
(vi) M.Chinnasamy vs. K.C.Palanisamy and others (2004)6 SCC 341.
(vii) A.C.Jose vs. Sivan Pillai (1984)2 SCC 656.
115. Learned counsel for respondent No.1 has also filed written submission on issue Nos.1 and 2 as under:
"It is submitted that the Petitioner at Para No.9 to Para No.12 has averred that there was about 2243 Postal Ballot votes including the Ballot such as Home voters, Service voters were received. Out of which 1942 Ballot papers were counted and 301 Ballot papers were rejected. The Petitioner further contends that the said rejection of 301 Ballot votes was contrary to Rule 54A of the Election Rules 1961. The said votes are valid and was cast in favour of Petitioner herein Except for the above pleadings, no other material is placed by the Petitioner to prove these contentions. The above pleadings are vague and critique and does not contain any material facts or particulars in order to averred that the said 301 Ballot papers which were rejected was except for the fact that they were stated to be contrary to Rule 54A but not been explained that 92 how the rejection would have been materially affected the elections and also the same were casted in favour of the Petitioner herein. The Petitioner has not even raised a single plea as to show how these 301 rejected Ballot Papers were casted in his favour.
As per section 83(1)(a) of the Representation of People Act, 1951 reads as follows -
"An election petition shall contain concise statement of the material facts on which the petitioner relies"
And section 83(1)(b) of the Representation of People Act reads as follows -
"an election petition shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice"
The above section mandates that the concise statement of the material facts that the Petitioner relies has to be mentioned. The present Petition does not bring forth any material facts or full particulars as mandated as per section 83 as present to seek relief under section 100 of the Representation of Peoples Act, 1951. The rejection of 301 postal ballot 93 votes are after following the due process of law laid down under the Representation of People Act and Rules. The vague claim made by the Petitioner at Para No.9 that the 301 Ballot Papers which were rejected had to be casted in his favour is without any material particulars and material facts to support the said pleadings. The Petitioner has not even stated at any instance as to how these rejected votes had to be casted in his favor. Therefore, the failure to plead material facts and particulars with respect to how these 301 Ballot Papers votes should have been in his favour is fatal and the relief claimed by the present Election Petition by the Petitioner on this aspect is per se without any basis and factual assertions and is only cryptic and vague, Therefore, this Hon'ble Court is not entitled to grant relief for the issues No.2. Therefore, the same has to be answered in negative and is required to be ruled out as against the Petitioner.
In the case of RAM SUKH V. DINESH AGGARWAL reported in, (2009) 10 SCC 541 it was held that, "Failure to disclose material facts as stipulated in Section. 83(1)(a), the election petition is liable to be dismissed and further, it was necessary for the election Petitioner to averse specifically in what manner the result of the election in so far as it concerned the first Respondent was materially 94 affected due to the said omission on the part of the Returning Officer".
Further in the case of KANIMOZHI KARUNANIDHI V. A. SANTHANA KUMAR AND OTHERS reported in (2023) SCC Online SC 573 it was held at para-No. 28 where it has enunciated and summed up the importance of Section 83 and 100(1)(d)(iv) of the Representation of Peoples Act, 1951 and stated that "Section 83(1)(a) of RP Act mandates that an election petition shall contain a concise statement of material facts on which Petitioner relies and which facts constitute a cause of action. Such facts would include positive statement of facts as also positive averment of negative statement. Omission of a singular fact would lead to incomplete cause of action".
The said principle has also been followed and upheld by the Hon'ble Supreme Court in the cases of SAMANT BALA KRISHNA AND ANOTHER V. GEORGE FERNANDEZ AND OTHERS reported in (1969) 3 SCC 238, SARDAR HARCHARAN SINGH BRAR V. SUKH DARSHAN SINGH AND OTHERS reported in (2004) 11 SCC 196, H.D REVANNA GOWDA V. PUTTASWAMY GOWDA AND ORS reported in (1999) 2 SCC 217, V.S ACHUTHANANDAN V. P.J. FRANCIS AND ANOTHER reported in (1999) 3 SCC 737 and MAHENDRA PAL V. 95 RAM DASS MALANDER AND ORS reported in (2000) 1 SCC 261.
The other issue with respect to the Postal Ballot Unit is Issue No. I wherein the Petitioner has stated that 360 Postal Ballot votes which were secured by the Returning candidate i.e., the present Respondent were to be rejected under 54A (8) of the Conduct of Election Rules, 1961 that the Petitioner further aware that they have been duly attested that as mandated under Rule 24 of the Conduct of Election Rules, 1961. Therefore, Form 13A not having been attested by the Gazette Officer, the said forms 360 votes in total had to be rejected. The Petitioner except for stating these statements in a vague manner, has not said forth as to what are the Ballot Papers in which this attestation is not forth coming and has not stated as to why were they being accepted and why they had to be rejected. The Petitioner also further stated that the failure to follow the due process of law more particularly 54A of the Conduct of Election Rules, 1961 has materially affected the outcome of the Elections under 100(1)(d)(iv). However, the Petitioner has not stated that whether these votes have been improperly received and had failed to plead and set forth grounds as under section 100(1)(d)(iii) which speaks about improper reception refusal or rejection of any vote or reception of any 96 vote which are void. Until and unless the Petitioners proves that the votes which have been received by the returned candidate are void, the Petitioner cannot claim the following relieves under section 100(1)(d) (iv) of the Representation of Peoples Act to say that the Returning Officer has failed to follow the provisions the Act that except for the mere statements made by the Petitioner there is no further evidence to prove that the said fact nor there is substantial material given by the Petitioner in order to prove the said Issue No.1.
Therefore, the claim that 360 votes should have been rejected which were casted in favour of Respondent No.1 is nothing but a mere statement without any material facts, material particulars, evidence nor any statements forth coming from the witness nor from the examination or chief examination or the cross examination of the Returning Officer.
Further in the Ex. P4 of the Election Petition the Returning Officer has clearly set out the votes polled in each of the Rounds in the 4 tables kept for postal ballots. There the total invalid votes, the total votes polled to NOTA, and the total rejections due to improper declaration are set out clearly. The Petitioner has not disputed this result of Returning Officer. Even at the earliest point of time no claim has been made regarding either the rejected vote of 97 301 members or the 360 votes of Respondent No. I to be counted in favour of Petitioner as claimed at para 9 of the Election Petition. All this is an afterthought. It is not even cited that the 301 votes were illegally rejected in the re-count application hearing thereby that the rejections were valid. Further how 360 votes of Respondent No. 1 were to be counted in favour of Petitioner and in which Table out of 4 Tables it was there, from where the Petitioner derives such information are all not stated and the said allegations are bereft of material particulars.
In the case of Sathyanarain Dudhani v. Uday Kumar Singh and others reported in, AIR 1993 SC 367 it was held that, "the order of recount of cannot be granted as a matter of course. Only when the court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence that the recount can be ordered". Further in the case of P.K.K Shamsudeen v. K.A.M Mappillai Mohindeen and others reported in, AIR 1989 SC 640," the right of a defeated candidate to assail the validity of an election result can seek recounting of votes has to be subject to the basic principle that the secrecy of the ballot is sacrosanct in a democracy and hence unless the affected 98 candidate is able to allege and substantiate in acceptable measure by means of evidence". The above principles of law on recount was also emphaised by the Honble Apex Court in Vadivelu v. Sundaram and others, reported in AIR 2000 SC 3230.
Therefore, the Petitioner is completely failed to prove the Issue No.1 and No.2 and also the Election Petition has not set forth as to how these votes have materially affected the Elections of the Respondent No.1. Until and unless the Petitioner is able to show that with material facts and material particulars that the Elections of the Respondent No.1 has been materially affected with respect to Issue No.1 and No.2 the Petitioner cannot claim the relief under section 100(1)(d)(iv) that the non-compliance of the RPA Act that the Election has been materially affected and seek for a declaration that the Elections of the Respondent No. 1 is required to be set aside. Therefore, the Issue No. 1 and Issue No.2 is required to be answered in negative and the Petition is liable to be dismissed.
116. On issue No.3, he has submitted as under:
It is submitted that, the primary allegations are that in certain polling stations the EVMs either in Control 99 Units, Ballot Units and VVPAT Units are being changed which is materially affected the result of the Elections. In pursuance of the above allegation the Petitioner has pointed out that in polling station No.153, 196 and 208 the title of the Control Unit numbers has been wrongly mentioned in FORM-17C PART-I and in FORM 17C PART-II. The Petitioner has stated that the votes recorded in the above three (3) polling stations are 1824 and the said votes have not been counted at all in the above Polling Stations. Therefore, sought for recounting of the same. On one hand the Petitioner is contending that his margin of defeat is only 676 and on the other hand he is contending that the votes in the above 3 polling stations have not been counted at all. These contentions of the Petitioner lacks merit and does not sustain the legal test.
It is pertinent to state that and without prejudice to the rights of the present Respondent even if it is assumed that there is a discrepancy with respect to the Control units as mentioned herein above the votes secured by the present Respondent clearly shows that even in the absence of these polling stations the Respondent would have secured more number of votes that the Petitioner. It is also submitted that the Control Units Number mentioned in Polling Station No.153 in FORM 17C PART-I and PART-II are same. It is also submitted that the 100 Control Units Number mentioned in Polling Station No.208 in FORM 17C PART-I and PART-II are also same. Therefore, the Issue No.3 is required to be answered in negative. The following table discloses the votes secured in the polling station No.153, 196 and 208.
Sl. Polling Votes secured by Votes secured by No. Station JD(S) candidate BJP Candidate 1 153 304 66 2 196 310 194 3 208 145 467 TOTAL 759 727 Hence it is abundantly clear that, the Petitioner has failed to set out any material allegations to set aside the elections while alleging irregularities in the Elections. Furthermore, the votes secured in the above polling stations also indicates that, the irregularities even assumed to be true in nature the same has not materially affected the results of the election Petitioner is concerned.
117. On issue No.4 it is submitted as under:
It is submitted that with respect to the Issue No.4, the Petitioner has contended that there are irregularities in the VVPAT used in polling station No.39, 149, 81, 83, 72 and 32 in No. 78 Kumta Assembly Constituency, Karnataka Legislative Assembly. It is further submitted that these contentions lacks merit as it is evident from the 101 materials placed by the Petitioner himself that the above mentioned Polling Stations the VVPAT Units were replaced and the replacement list is available at page No. 113 at ANNEXURE-T as it could be seen that, all the replaced units were in the reserved list at EXIBHIT-P19.
The only Polling Station in which the VVPAT unit is not to be found in the reserved list is that Polling Station No.39. The Petitioner claims that the votes polled in Polling Station No.39 are void votes and therefore, the elections of the present Election Petition is to be set aside. It is pertinent to note that the votes polled at Polling Station No.39 are 1000 in total out of which 435 votes were polled in favour of the Petitioner and 408 votes were polled in favour of the present Respondent. Hence, the irregularities pointed in VVPAT Units at Polling Station No.39 cannot be a ground to set aside the Present election and the same is not materially affected as mandated in the section 100(1)(d) of the Representation of the People Act, 1951, It is also submitted that the Petitioner in the cross examination has admitted that neither he nor his polling agent has informed the polling officer about the irregularities mentioned above at the said polling station. In the view of the above the Issue No.4 is required to be answered in negative and the present Election Petition is liable to be dismissed.102
118. On Issue No. 5 it is submitted as under:
It is submitted that with respect to the Issue No. 5, the Petitioner has contended that there are irregularities in the Control Units used in polling station No.81 and 72 in No. 78 Kumta Assembly Constituency, Karnataka Legislative Assembly. It is further submitted that these contentions lacks merit as it is evident from the materials placed by the Petitioner himself that the above mentioned Polling Stations the Control Units were replaced and the replacement list is available at page No. 116 at ANNEXURE-V as it could be seen that, all the replaced units were in the reserved list at EXIBHIT P20. Hence, the irregularities pointed in Control Units at Polling Station No.81 and 72 cannot be a ground to set aside the Present election and the same is not materially affected as mandated in the section 100(1)(d) of the Representation of the People Act, 1951.It is also submitted that the Petitioner in the cross examination has admitted the same. In the view of the above the Issue No. 5 is required to be answered in negative and the present Election Petition is liable to be dismissed.
119. On Issue No. 6 is submitted as under:
It is submitted that with respect to the Issue No. 6, the Petitioner has contended that there are 103 irregularities in the Ballot Units used in polling station No.81 and 72 in No. 78 Kumta Assembly Constituency, Karnataka Legislative Assembly. It is further submitted that these contentions lacks merit as it is evident from the materials placed by the Petitioner himself that the above mentioned Polling Stations the Ballot Units were replaced and the replacement list is available at page No. 118 at ANNEXURE-W as it could be seen that, all the replaced units were in the reserved list at EXIBHIT- P21. Hence, the irregularities pointed in Ballot Units at Polling Station No.81 and 72 cannot be a ground to set aside the Present election and the same is not materially affected as mandated in the section 100(1)(d) of the Representation of the People Act, 1951. It is also submitted that the Petitioner in the cross examination has admitted the same. In the view of the above the Issue No. 6 is required to be answered in negative and the present Election Petition is liable to be dismissed. It is submitted that the above-mentioned allegations have been pointed out by the petitioner on the ground that the provisions of the RP Act have not been complied. However, the very essential as to how the same has been materially affected the results of the elections. It is also not the case of the Petitioner that the irregularities alleged to have been committed by the Returning Officer was done at the 104 behest of the present Respondent and in order to assist the victory of the present Respondent. The Petitioner has failed to set out material facts and particulars in this regard as mandated in Section 83 of the RP Act and has only made bald allegations and has asserted that the elections are required to be set aside with respect to the irregularities pointed out. The Petitioner has miserably failed to establish and prove the elections of the present Respondent/ Returned Candidate has been materially affected and is required to be set-aside.
In the case Election Commission of India v. Ashok Kumar and Others of reported in, 2000 SCC Online SC 1234 it was held that "Sub-clause (iv) of clause
(d) of Sub-section (1) of Section 100 is a 'residual catch-all clause, Whenever there has been non-
compliance with the provisions of the Constitution or of the Representation of the People Act, 1951 or of any Rules or Orders made thereunder if not specifically covered by any other proceeding clause or sub-clause of the section it shall be covered by sub-clause (iv). The result of the election insofar as it concerns a returned candidate shall be set aside for any such non-compliance as the above-said subject to such non-compliance, also satisfying the requirement of the result of the election having been shown to have been materially affected insofar as a returned candidate is concerned"
105
The above principle is also reiterated in the cases of UMA BALLAV RATH V MAHESHWAR MOHANTY reported in (1999) 3 SCC 357, KAMTA PRASAD UPADHYAYA V. SARJOO PRASAD TIWARI reported in (1969) 3 SCC 622, ΡΛΟΚΑΙ HAOKIP V. RISHANG reported in 1968 SCC Online SC 281 and Hareram Pandey v. Ajit Chaudhary reported in (1999) 8 SCC
261.
Another important ground in which the Petitioner has failed to narrate in the present election petition is that until and unless the votes which have been received in favor of the present Respondent is void due to the reasons of improper reception under section 100(1)(d)(iii) the Petitioner cannot claim the votes which have been received by the present Respondent as void.
It is submitted that the irregularities which have alleged in FORM 17C PART I were all within the knowledge of the Petitioner and his counting agent at the date of poling (i.e. 10/05/2023). It is further submitted that the polling station agents of the Petitioner were present in the polling station and have accorded their signature in the FORM 17C PART-1 after completion of the polling process and had failed to raise any grievance/objections. Therefore, the contention with respect to irregularities alleged in FORM 17 C PART-I does not merit consideration and therefore this present 106 Election petition is required to dismissed. The case laws which have been relied by the Petitioner do not apply to the present set of facts and therefore it is irrelevant. It is in the case of M.R GOPALAKRISHNAN V. THACHADY PREHKARAN AND OTHERS reported in 1995 Supp (2) SCC 101, wherein on a similar allegation that the Postal Ballot Papers have been wrongly rejected, it was held that "the irregularities alleged without there being a complaint at the relevant point of time the said irregularities is an afterthought and not based on true facts" and the Hon'ble Apex Court had dismissed the said appeal. In view of the above submissions in relief of order of recount of all votes and the order of recount of all Ballot Papers at Prayer B and C cannot be granted as the Petitioner is prima facie failed to set out any legal grounds for the same. The relief at Prayer D to set aside the election of the Respondent No.1 from No.78 Kumta Legislative Assembly also fails as the Petitioner has miserably failed to establish a ground and to prove how the Elections have been materially affected. The further relief at Prayer E to declare that the Petitioner as the elected candidate also fails for the fore going submissions.
The Respondent herein most humbly seeks leave of this Hon'ble Court to raise any other additional grounds which are not mentioned above and to supplement the above-mentioned submissions at the 107 time of oral arguments. The averments made in the Written Statement may be read as part and parcel to the present Written Arguments.
Thus, in view of the above submissions, the Respondent herein most humbly prays that this Hon'ble Court be pleased to dismiss the Election Petition in the interest of justice and equity."
120. This Court bestowed its best attention to the rival contentions of the parties as also the oral and documentary evidence placed on record.
121. On careful consideration of the material on record, in the light of issues referred to supra, issue Nos.1 and 2 would be answered at the first instance.
122. REGARDING ISSUE Nos.1 AND 2: Admittedly neither the petitioner nor his counting agent objected for the counting of postal ballots and the result thereof in writing to the Returning Officer. P.Ws.1 and 2 have categorically admitted that there was no written objections with regard to alleged illegality in counting the postal ballot papers. Petitioner would even go to the extent of answering in cross-examination on oath, that he does not even 108 remember the name of the counting agent who was deployed for the purpose of counting the postal ballots.
123. Further, P.W.1 categorically admitted that he visted the counting hall for the first time on the date of counting i.e., on 13.05.2023 at about 1.00 pm. The material on record would go to show that by that time the counting of postal ballots was completed in toto.
124. P.W.2 confirms the said factual aspect in his evidence that the counting of EVMs commenced only after completion of counting of postal ballots.
125. In other words, there was a time gap of about 3 to 4 hours before the petitioner visited the counting hall at about 1.00 pm. If the postal ballots were not properly counted, there was no impediment for the petitioner or his counting agents to bring it to the notice of the Returning Officer about the discrepancy in counting the postal ballots. Therefore, issue Nos.1 and 2 will have to be held 109 against the petitioner. Accordingly, issue Nos.1 and 2 are answered against the petitioner.
126. REGARDING ISSUE Nos.3 TO 6: These issues are taken up together for discussion in view of the fact that they are inter linked and material evidence placed on record are also interwoven with each other.
127. As could be seen from the submission in the written arguments placed on record by both the parties referred to supra, the main grievance of the petitioner is that in respect of three polling stations bearing Nos.153, 196 and 208, EVMs used were not counted and in respect of polling station Nos.39, 149, 81, 83, 72 and 32 of Kumta Assembly Constituency, authorized VVPATs were not used.
128. Petitioner also contends that control units in polling station Nos.81 and 72 have been replaced on account of improper working and such units did not find place in the reserve or randomization list.
110
129. Yet another grievance of the petitioner is that ballot unit in Polling Station Nos.81 and 72 were also replaced and those units did not find place in reserve or randomization list.
130. In this regard, petitioner, apart from reiterating the averments made in the petition in the tabular column referred to supra, in his examination-in-chief further stated that irregularities committed by the concerned polling Officer resulted in improper conduct of election as is found in Section 100(1)(d)(iii) of the Representation of People Act, 1951. Therefore, election of the petitioner is to be held as null and void.
131. In this regard, there is no dispute as to the replacement of the units in three polling stations viz., Polling Station Nos.153, 196 and 208 wherein EVMs were replaced.
132. Likewise, there is no dispute to the fact that VVPAT units in polling Station Nos. 39, 149, 81, 83, 72 and 32 111 were replaced. Further, the control unit and ballot unit in respect of polling station Nos.81 and 72 have also been replaced.
133. In this regard, oral testimony of P.W.2 assumes importance inasmuch as said witness is summoned on behalf of the petitioner and examined on his behalf. In his oral testimony, P.W.2 being the Returning Officer of Kumta Constituency, specifically stated that he had procured 120% control units and ballot units. In other words, 20% extra of those units to meet the contingency. Likewise, he had procured 130% of VVPAT units from the Chief Election Commissioner.
134. Admittedly, the control unit, ballot unit and VVPAT are exclusive property of the Election Commission of India bearing Unique Identification Numbers. In other words, such equipments are not freely available in the open market.
112
135. If that is so, the contention of the petitioner that there is irregularity/illegality in replacing the units whereby he did not get proper votes even though the voters have exercised their franchise in his favour, cannot be countenanced in law.
136. On the contrary, in the cross-examination of P.W.1, learned counsel for the respondent No.1 was successful in eliciting that in respect of all the polling stations which he has complained that he has lost number of votes as referred to supra would depict that, despite such replacement of units, it is the petitioner who got more votes in those polling stations as against respondent No.1 in toto.
137. In other words, when the petitioner has secured more votes where respective units have been replaced, should not have any grievance that because of the replacing of respective control unit, ballot unit and VVPAT has worked detrimental to his interest and the same cannot be countenanced in law.
113
138. No doubt, when 215 polling stations are established in Kumta Constituency and if some units have not properly worked before the actual voting commenced, each of the polling officers had been given the discretion to use the reserved units which was supplied to them in the presence of polling agents and then commenced the voting.
139. This trial process would be conducted by each polling officer in polling stations in the presence of polling agents before the commencement of actual voting and after satisfaction recorded by all the polling agents who are present at the polling stations and obtaining their signatures on the prescribed format, election process would commence.
140. In this regard, petitioner has admitted in his cross- examination that he does not know the names of the polling agents who were appointed on his behalf in respect of the disputed polling stations. Nor, any material evidence is placed on record on behalf of the petitioner to 114 hold that such of the polling agents have raised objections in writing in respect of replacement of the respective units.
141. Yet another contingency may arise where, when the voting process is on, any of the units may fail. Even in such contingency, the process that is to be adopted by the polling agent is the same procedure, i.e., he must record that a particular unit has failed during the course of voting and therefore, he is replacing a particular unit which is found to be defective.
142. Even in such contingency, he must take into confidence the polling agents of the respective candidates and in their presence, replacing has to take place and immediately such contingency must be brought to the notice of the Returning Officer and after his approval, the units must be replaced.
143. In the case on hand, such contingency has not arisen and it is the specific case of the petitioner himself that 115 respective units were replaced before commencement of voting.
144. Learned counsel for the petitioner, no doubt, emphasized on the contents of Exs.P.22 to 27 and vehemently contended that since respondent No.1 has admitted the contents, case of the petitioner stands established that there is irregularity as is contemplated under Section 100(1)(d)(iii) of the Representation of People Act, 1951.
145. In order to appreciate the same, it is just and necessary for this Court to extract the said provision of law for ready reference.
100. Grounds for declaring election to be void.--
(1)Subject to the provisions of sub-section (2) if the High Court is of opinion--
(a)that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of 1963); or 116
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected--
(i)by the improper acceptance or any nomination, or
(ii)by any corrupt practice committed in the interests of the returned candidate 5by an agent other than his election agent, or
(iii)by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv)by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.
146. In answer to said submission, as referred to supra, Sri Vivek Reddy, learned Senior Advocate for the respondent No.1 contended that the replaced units viz., 117 control unit, ballot unit and VVPAT, were from the reserve list marked at Ex.P.20. Therefore, replacing of the respective units without objection from the polling agent did not cause any material irregularity as is mandated under Section 100 of the Representation of People Act, 1951.
147. This Court bestowed its best attention to the discrepancies pointed out by the petitioner and explained by the respondent No.1.
148. On careful consideration of the discrepancies, no doubt, discrepancy did occur on account of replacing of the control unit, ballot unit and VVPATs.
149. P.W.2 categorically answered that the replacing of the units is from the buffer of 20% in respect of control unit and ballot unit, and 30% in respect of VVPATs.
150. Therefore, arguments of the petitioner that serial number of the VVPAT in polling station Nos.39, 81 and 83 did not find place either in Exs.P.17 and 18 in 118 randomization or reserve list is admitted by P.W.2, since the units were from buffer units which were procured by the Returning Officer from the office of the Chief Election Commissioner. As already pointed out, those units are not freely available units in the open market so as to infer that the polling officers only with an intention to help the respondent No.1 have brought some other units detrimental to the interest of the petitioner.
151. Moreover, as already pointed out supra, and as admitted by petitioner himself in the cross-examination, in respect of such replaced units, it is the petitioner who stand to gain in number of votes polled as against number of votes polled against respondent No.1 in majority of the polling centres.
152. In this regard it is worth to note that P.W.1 in his cross-examination categorically admitted that information provided by the petitioner in his petition at paragraph No.26 of the Head Note B is correct. He has answered to a specific question that data provided in Form 17C Part I 119 tallied with data provided in Form 17C Part II. It is also his admission that in booth No.29 control unit was not properly working and by consent of counting agents, slips stored in the VVPAT unit were taken out and they were counted.
153. Thus, in other words, assuming that some discrepancy with regard to serial numbers of VVPAT or other units has taken place in some of the polling stations, the selection of the respondent No.1 for No.78 Kumta Legislative Assembly did not materially affect the declaration of respondent No.1 as successful candidate in the election.
154. Therefore, arguments put forth on behalf of the petitioner that the irregularities have vitiated the very selection process itself cannot be countenanced in law.
155. It is settled principles of law and requires no emphasis that every irregularity would not be termed as illegality. There lies a thin line of difference between 120 irregularity and illegality. But that thin line is subtle in nature.
156. It is to be noted that the key difference between illegality and irregularity is that illegality is a fundamental violation of law, rendering an action void, while irregularity is a procedural deviation which may or may not cause serious prejudice which would affect the end result. An irregularity which is fundamental in nature often amounts to illegality wherein it goes to the very root of the matter vitiating the very process resulting in injustice.
157. While irregularity is a minor procedural error that do not compromise the essence or fairness of the process, which may include clerical mistakes or minor deviations from prescribed procedures that do not affect the end result, illegality is a significant breach of established law which may be in the statute or rule which would fundamentally undermine the process. Often, illegality includes improper administration of the statutory 121 provisions or violating the prescribed rule which would result in substantial violations of the fair process.
158. In this regard, this Court gainfully places its reliance on the judgment of the Hon'ble Apex Court in the case of State of Karnataka and others vs. Umadevi reported in (2006)4 SCC 1 and Pawan Kumar Tiwary and others vs. Jharkhand State Electricity Board (Now Jharkhand Urja Vikas Nigam Limited) and Others reported in 2025 SCC OnLine SC 1751.
159. Therefore, the alleged irregularities or minor discrepancies pointed out in the conduct of election process in respect of Kumta Assembly Constituency, did not affect the end result of the election process.
160. It is also to be noted that conduct of election in a gigantic democracy of a country is not a child's play. It requires lot of planning, preparation, man power and infrastructure. While conducting such elections, Returning Officer plays a pivotal role. In fact, it is the role of the 122 Returning Officer which acts as fulcrum and while conducting the elections, human errors which are minor in nature, mechanical errors which may also be minor in nature may occur beyond the comprehension of the Returning Officer. Hand Book, in built provisions in the Rules and the Act may not adequately provide for every such minor discrepancy.
161. Under such circumstances, such minor discrepancy when pointed out, if not affecting the final result of the election process must be ignored.
162. In the light of the above factual aspects, this Court has considered the principles of law enunciated in the decisions placed on record on behalf of the parties.
163. In the case of Dr.Kanthi Rajashekar Kidiyappa vs. P.H.Pujar and Others reported in 2000 SCC Online Kar 912, referred to supra, Their Lordships were considering the effect of lapse on the part of the Returning Officer in not following the mandatory provisions of law. 123
164. In the case on hand, there is no violation of mandatory provisions of the Act and rules or the hand book.
165. In the case of Ram Sewak Yadav vs. Hussain Kamil Kidwai and others reported in AIR 1964 SC 1249, Their Lordships of the Hon'ble Supreme Court were dealing with the selection of a candidate based on physical ballot papers. The rules that were applicable for declaring the result of physical ballot papers as against the EVM are altogether different and therefore, even though the principles stated in the said case cannot be disputed, same is not applicable to the case on hand.
166. In the case of Basangouda vs. Dr.S.B.Amarkhed and others reported in (1992)2 SCC 612, Their Lordships while dealing with Section 100(1)(b) and (d) were dealing with menace of booth capturing. In the case on hand, no such contentions are urged on behalf of the parties, nor issues framed in the case which would require to consider of the principles stated in the said case. 124
167. Nextly, adverting to the case of M.Chinnasamy vs. K.C.Palanisamy and others reported in (2004)6 SCC 341, Their Lordships of the Hon'ble Supreme Court were dealing with the proposition of necessity of maintaining secrecy of ballot papers at the time of recounting.
168. In the case on hand, admittedly, issue of recounting of ballot papers is only restricted to postal ballot where there is no written request by the petitioner or his counting agent. Therefore, principles of law enunciated in the said case has no application to the case on hand.
169. In the case of A.C.Jose vs. Sivan Pillai reported in (1984)2 SCC 656, Their Lordships bestowed their attention with regard to the manner of voting by mechanical process. Their Lordships held that use of EVMs inconsistent with the scheme of Representation of People Act and conduct of election Rules are without jurisdiction and ordered for repolling of those booths where inconstancies were pointed out. Their Lordships also ruled in the said decision that ballot does not mean the voting 125 machines under the Act and party cannot be estopped from urging illegality on the ground of the parties failure to raise objection at relevant point of time.
170. Learned counsel for the petitioner placing reliance on the said judgments contended that even in the absence of any objection in writing by the petitioner and his counting agent, petitioner cannot be estopped from seeking for recounting of the postal ballots.
171. In the case on hand, admittedly, the ruling in the case of A.C.Jose is applicable to the irregularity in EVM and not physical ballot papers. Rule mandates that recounting of postal ballots requires a requisition in writing.
172. Admittedly, petitioner reached the counting hall at 1.00 pm on the day of counting. By then, counting of postal ballots had already been concluded atleast 3 to 4 hours earlier.
126
173. In the absence of any requisition in writing on the counting day, petitioner cannot avail the benefit of principles of law as is enunciated in A.C.Jose case supra.
174. Along with additional written submissions, learned counsel for the petitioner placed reliance on the judgment of the Hon'ble Apex Court in the case of Birad Mal Singhvi vs. Anand Purohit reported in 1988(Supp) SCC 604 supra.
175. In the said case, Their Lordships were not concerned with the validity of the postal ballots or discrepancy in the EVM or the control unit or VVPAT. Therefore, principles of law enunciated in the said decision is not applicable to the facts of the present case.
176. Yet another decision along with additional written submission is the case of Jibontara Ghatowar vs. Sarbanand Sonowal and others reported in (2003)6 SCC 452, wherein, Their Lordships ruled as to when recounting is permissible. Their Lordships while dealing 127 with recounting and defect in ballot papers, held that Returning Officer based on prima facie opinion formed in a reasonable manner in the attendant facts may order for recounting and not on the frivolous and unreasonable grounds.
177. In the case on hand, in the absence of any requisition in writing with regard to recounting, petitioner cannot be permitted to avail the benefit of the principles laid down in the case of Jibontara Ghatowar supra.
178. Insofar as the decisions placed on record on behalf of the respondent No.1 is concerned, detailed discussion is unnecessary in view of the fact that this Court is not answering any of the issues in favour of the petitioner on factual aspects of the matter as discussed supra.
179. In view of the foregoing discussion, issue Nos.3 to 6 are to be answered against the petitioner and accordingly they are answered.
128
180. Having recorded the answers to issue Nos.1 to 6 as referred to supra, invariable conclusion is to dismiss the petition.
181. Hence, the following:
ORDER
(i) Petition is dismissed.
(ii) No order as to costs.
Sd/-
(V. SRISHANANDA) JUDGE kcm