Karnataka High Court
Smt. Bhavya Ranganath vs Smt. R Saraswathi Ramanjinappa on 16 January, 2017
Author: Vineet Kothari
Bench: Vineet Kothari
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 16th DAY OF JANUARY 2017
BEFORE
THE HON'BLE Dr.JUSTICE VINEET KOTHARI
WRIT PETITION No.39636/2016 (LB-ELE)
BETWEEN:
SMT. BHAVYA RANGANATH
W/O RANGANATH
AGED ABOUT 28 YEARS
BANDARAHALLI VILLAGE
GOURIBIDNUR TALUK
CHIKKABALLAPURA DISTRICT-561228.
... PETITIONER
(BY SRI. SHYAM KOUNDINYA A.S. ADV., (ABSENT))
AND
1. SMT. R. SARASWATHI RAMANJINAPPA
W/O RAMANJINAPPA
AGED ABOUT 34 YEARS
R/AT. NAGARAGERE VILLAGE
GOURIBIDANUR TALUK
CHIKKABALLAPURA DISTRICT-561228.
2. SMT. ASWATHAMMA
W/O G.S. GANGAPPA
AGED ABOUT 50 YEARS
MANIVALA VILLAGE
GOURIBIDANUR TALUK
CHIKKABALLAPURA DISTRICT-561228.
3. SMT. ADILAKSHMAMMA
W/O GANGADHARAPPA
AGED ABOUT 52 YEARS
VATADAHOSAHALLI VILLAGE
Date of Order 16-01-2017 W.P.No.39636/2016
Smt. Bhavya Ranganath Vs.
Smt. R. Saraswathi Ramanjinappa & Ors.
2/8
GOURIBIDANUR TALUK
CHIKKABALLAPURA DISTRICT-561228.
... RESPONDENTS
(BY SRI. A.V. NISHANT, ADV., FOR C/R1)
THIS W.P. IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DTD:13.07.2016 ON I.A.NO.2 UNDER ORDER 7 RULE 11 OF CPC
FILED BY THE PETITIONER PASSED BY THE HON'BLE DISTRICT
JUDGE, CHIKKABALLAPURA DISTRICT IN ELECTION PETITION
NO.1/2016 AT ANNEXURE-E. ALLOW THE APPLICATION IN IA
NO.2 FILED BY THE PETITIONER THEREBY ORDERING FOR
REJECTION OF THE ELECTION PETITIONER IN E.P.NO.1/2016
IN ANNEXURE-B ON THE HON'BLE DISTRICT JUDGE,
CHIKKABALLAPURA DISTRICT & ETC.,
THIS W.P. COMING ON FOR PRELIMINARY HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:-
ORDER
Mr. Shyam Koundinya A.S. Adv. for Petitioner(Absent) Mr. A.V. Nishanth, Adv. for C/R1
1. None present for the petitioner. Heard the learned counsel for the caveator/Respondent No.1
2. The petitioner-a returned candidate for the election of the Nagaragere constituency, Chikkaballapura Zilla Panchayath, has filed this writ petition, being aggrieved by the order passed by the learned Prl.District Judge, Chickballapur in Election Date of Order 16-01-2017 W.P.No.39636/2016 Smt. Bhavya Ranganath Vs. Smt. R. Saraswathi Ramanjinappa & Ors. 3/8 Petition No.1/2016 (Smt.R.Saraswathi Ramanjinappa Vs. Smt.Bhavya Ranganath & Others), by which, the learned court below rejected the application filed by the petitioner herein u/O 7 Rule 11 of CPC seeking dismissal of the said Election petition, which was mainly on the ground that Electronic Voting Machines (EVM) in the present case was swapped, because the election of the Zilla Panchayaths and Taluk Panchayaths took place on the same day and at the same centre, the 2 EVMs were swapped and that apparently resulted in the mis-receiving and counting of the votes in the present case and hence, the Election petition was filed by the 1st respondent herein- Smt.R.Saraswathi Ramanjinappa.
3. The reasons assigned by the learned court below for dismissal of the said Application filed u/O 7 Rule 11 of CPC are reproduced below for ready reference:-
Date of Order 16-01-2017 W.P.No.39636/2016 Smt. Bhavya Ranganath Vs. Smt. R. Saraswathi Ramanjinappa & Ors.4/8
"Point No.1:
16. In so far as filing of the petition is concerned, no defect as such is pointed out with reference to Section 15 and sub-clause therein or Section 16 and sub-clauses therein. The main ground of attach on the Election petition is under Section 19 and sub-clauses therein. According to petitioner due to the swapping of Electronic Voting machines and on account of negligence of the election officers resulted in improper acceptance of votes in favour of the respondent. Therefore, she has sought for set aside the election of the respondent. The Electronic voting machines were allotted to polling stations of respective Taluk panchayaths and Zilla panchayaths one day prior to the date of polling.
17. The Electronic voting machine allotted to conduct the Taluk panchayat Election had the control unit Number as 80614-38 and balloting unit number as 87984-33. On perusal of the Electronic voting machines allotted to the Zilla panchayat election, to the very same polling station, the Date of Order 16-01-2017 W.P.No.39636/2016 Smt. Bhavya Ranganath Vs. Smt. R. Saraswathi Ramanjinappa & Ors.5/8
control unit allocated was 49837-194 and balloting unit was 92352-82. With respect to No.17 - Mahila constituency, Gowribidanur taluk panchayat, polling station No.183- Hunasenahalli the control unit number used was 49837 and balloting unit used was 87984. Certified copy of the Form No.28-B, part-I with reference to No.17-Mahila constituency, Gowribidanur taluk panchayat is produced as Document No.3. The document reveals that the EVM used in the said policing booth was having control unit number as S-80614 and the Balloting unit number as 92352. Certified copy of the Form 28-B, Part-I with reference to No.20 - Nagaragere constituency, Chikkaballapur zilla panchayat, with reference to polling booth No.183, Hunasenahalli is produced as Document No.4. The Electronic voting machines with respect to Taluk Panchayat and Zilla Panchayat were swapped and that has resulted in materially affecting the result of the election in favour of the petitioner. Therefore, with this allegation it cannot be said that there is no cause of action to file the Date of Order 16-01-2017 W.P.No.39636/2016 Smt. Bhavya Ranganath Vs. Smt. R. Saraswathi Ramanjinappa & Ors.6/8
petition. The rest of the allegations forms part of evidence, which has to be proved during the trial of the case. As regards non-joinder of necessary parties is concerned, the law is well settled. The prayer made in the petition is to be first looked into. To set aside the application of the 1st respondent as null and void, the allegation is the negligence on the part of polling staff and swapping of electronic voting machine resulting in improper results. Therefore, section 19(d)(i)(iii) would provide for filing an Election petition on those grounds.
18. In a decision reported in (1982)1 Supreme Court Cases, page 691; Jyoti Basu and others Vs. Debi Ghosal and others, in respect of concept of proper parties to Election petition, the Hon'ble Supreme Court of India has specifically held as under:
"Election - Joinder of parties - Election petition alleging corrupt practice - Held, only the 'candidate', expressly mentioned in Section 82 and 86(4) of the Representation of People Act, can be joined as respondents by the election petitioner and the non-
Date of Order 16-01-2017 W.P.No.39636/2016 Smt. Bhavya Ranganath Vs. Smt. R. Saraswathi Ramanjinappa & Ors.7/8
candidates, even though against them corruption charges made in the petition cannot be so joined - Relevant provisions of Civil Procedure Code would apply subject to those of the Act - Representation of the People Act, 1951 (43 of 1951), Section 82, 86(4), 87, 97, 99 - Civil Procedure Code, 1908, Order 1".
The same law has been reiterated in a decision reported in (2002)3 SCC, page 521; Michael B. Fernandes Vs. C.K. Jaffer Sharief and others. Therefore, looking from any angle I find that the election petition does not appears to be barred under law or that there is no cause of action to file the petition etc. Therefore, I.A. No.2 is devoid of merits and liable to be dismissed. Accordingly, point No.1 is answered in the negative.
Point No.2:
19. In the result, I pass the following:
ORDER I.A. No.2 filed by the respondent No.1 under Order VII Rule 11 read with section 151 of CPC is dismissed with costs.
Date of Order 16-01-2017 W.P.No.39636/2016 Smt. Bhavya Ranganath Vs. Smt. R. Saraswathi Ramanjinappa & Ors. 8/8 For hearing on other I.As. and enquiry on main petition, call on 25/7/2016".
4. Having perused the reasons assigned in the impugned order, this Court is satisfied that the election petition requires a trial and triable issues arises in the present case and therefore, the rejection of application filed u/O 7 Rule 11 of CPC is found to be justified. There is no force in the present writ petition and the same is liable to be dismissed and accordingly, the writ petition is dismissed. No costs.
Sd/-
JUDGE Srl.