Mr Nagesh Sapalya vs Deputy Commissioner on 2 February, 2011

[Cites 3, Cited by 1]

Karnataka High Court

Mr Nagesh Sapalya vs Deputy Commissioner on 2 February, 2011

Bench: B.V.Nagarathna

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED Tms THE 2ND DAY OF FEBRUARY, 2131:"

BEFORE:

THE I-ION'BLE MRS. JUsT1c:%:..13,._V.NA£:§,A 1;  

w.P.Nos.15284--15285x2e:;'0.{LB>;3;L1§}'   

BETWEEN :

1V£r.Nagesh Sapalya V 
Aged 38 years,  "

S/0 Sri.ChezmaPPa SaPaiIlVa,Q'   

Kajpa Vruksha 1.\_Iilaya,_...  _ 
Kenjaru Village: v574§:142,_";
Mangalore.  " ' ' 1' V

AND:

1. ﬁepufy Commissiqner

 V'  . Dakshina Kannadéi "" "
. 1\riaI_1gavI0:jr:- .-33' 575 00 I .

1" 5? Re 

Malavoor G-'xairxa Panchayath
Ma1'avc=._Or '~ "574 142,

 Manga lo1'e Taluk.

A V _"  The Secretary
:.Gr:zma Panchayath

Maiavoor,

%  ..._l?ost: Bajpe M 574 142.,

Mangalare Taluka

xk\ ;*::§Z1.>"<'C?.>4
' X

  _   .._PE'1'ITIONEI{{

{BY sR§.%R~¢'rLANimAN.4§*r1?i  ADVOCATE) '



 ,4 

 T23 cmxtest Grama §*anchaya't Eieeiien, g

4. Mr.N1thy'ananda
S/o Sanjeeva Poojari
Aged about 35 years,
R/at Ambedkar Nagar,
Kenjaru Vﬁlage,
Pijavara Post,
Mangalore.

(BY SRI.H.'I'.NARENDRA
RESPONDENTS N0. 1 TO

FOR RESPONDENT No.4} ..:§,EsPor:1)f:.":§i?rS""":

, ,..,,,nmmm_.mW,w pu«m .Jf¥iCG1=i ' " V j 3, sm;s_mpAPPAT,_--.'T AAnvocfA:rE...} THESE WRIT PETITIONS FILED UNDER ARTICLES 226 8: 227 OF THE ?CONST'ITUTLI0._Ny OF INDIA PRAYING TO QUASH THE ORDER DA'.{'ED} 29._(3v4».20_1O PASSED BY THE RESPONDENT NO.2~T.REJECTIN_GvTH}33 NOMINATION PAPERS VXDE ANNEXKIRE-1E &.F. ISSUE A MANDAMUS ' TO THE RE--SPONII}ENT_'.Ai N.O';~2=~_ To ACCEPT THE NOMINATION P:'§FERS'-- A GFVTHE. PE'i'3ITIOI\IER.

THE PE1'1'fEQNE!Q _ PANcHAYATH::_E;.EcTiQN..j; T' THESEEF _ COMING ON FOR DICTATING ORDERS '1*H1s. n.ma*, THE COURT MADE THE FOLLOWING;- ' J . ' I12* «if.'hi$"wTit p.Etifcion, the petitioner has challenged :TE~2__94.€)4_;.2O1(}~.p'ﬁ$sed by the second respondent which are "at A.x1ne::cures«E and F to the writ petition and " '_';hEs'T«.~'sbi;ght a direction to the second respondent to h ' 'v..VAacée;:T£"£he nemination 0f the petitioner and germit him )3 ,:f:' *5 M r(.éj-a'{éi;ior;."v'{i.fAT:: his nomination by order dated- ' PERMIT N.'_FQ"~~_ CONTES'I' T1:-IE" GRAMA = 3

2. It is the case of the petitioner that he is a. resident of Kenjaru Village situated in Mangalore Taluk and his name is entered in the electoral roll of Qrama Panchayat of Malavoor. Earlier he was electted-<.as~..va Member of the Graxna Panchayat and has . period of ten years. That Kenjarn Village"'i's:iazit'hin.Vti3._e Grama Panchayat of Malavoor. 'I::I;1ereA:--1r'e itwionwardi regard to Malavoor Villagesand three"iVard..s' reigardjl» to Kenjaru. That the Coninrissionvvfgdeclared calendar of events fo'rA..'_l}i'o1di--ng{elections to Ward 1 and 3 of Kenjaru Village of iVbGrarnVa:i..'i?anchayat. The petitioner his noérninatian on 27.04.2010. The said nomination was"'s_leri1t.i_ﬁi»zed and an endorsement was issued stating that t'i1eVi'1ietitioner obtained trade license .--...._Afor*'.ri*u;;.ni;ag grioeeryi shop and had not renewed the year 2007~2008 onwards and a sum of » ?"'}'50/- isin arrears towards license fees and under the circumstances nomination of the petitioner was A rejected. The third respondent after rejection of the nomination issued another endorsement on 30.04.2010 "stating that the license was issued for the year 2006» 26$'? eniy and that if the license is not renewed. automatically it gets cancelled. Being aggrieved by the rejection of nomination, the petitioner has filed petition invoking Article 226 of Constitutioniif A "

3. When the matter was takeliuif f0!' hearing, by an interim orderdated = i' directed respondent No.2 to and include the name final list of nominations to the electiion to' Malavoor Grama Panclgaigfggiiih It is also observed subject to result of the was conducted on 12.05.2i'}1u(")"-and was successful and has been declared in be a. snccessful candidate in the said Vvr.UnderV"'t'n'e circumstances the petitioner, tilien prayers in the writ petition has to be granted an1iI__ti1e election of the petitioner has to be lstdeclaredvllltp be valid.

4. I have heard, the learned counsel for the ""V.V{pHe'titionezg learned Government Pleader for respnndents N353 and :2 and learned ceiinsei fer respondent i'€e,.4.§ mm"; = /' r /

5. It is contended on behalf ef the petitioner that the rejection of his nomination was accordance with law. Under the cireumstimcesﬂ"this:i ~ court was prima facie of the viewb_that:"th'e::petiticneer must be given an opportunity tov'»con._Vtes:t i13._th.e"eie§iiti&oit;!;' Hence an interim order waspassed, it Furth'e1rv.the_.said.V > interim order was subject to of theilwnrit Vipetition. ' Petitioner being n§;VAVi'furt1ier_bborders1need be made in this has to be disposed of c--f=his submission he relied ' iivigofi this Court in jicotinectiedivtnatters disposed of by this Court' on zPer iﬂcontra, learned Government Pleader the writ petition was itself not rtia.intainat}i'es,Ai:: since the petition is ﬁled under Article 226 of Cionstitution of India after calendar of events was fifissined and that election was subject to the result of this merit petition. As the writ petition itself was not it maintainable; merely beeause interim order was granted by this Qourti, petitioner cannot have the final relieili It sis ,, h_ﬂ.,f& .9)"

is further submitteti that the question of wroiigful rejection of nomination paper is one which agitated by the petitioner before appropriate . filing an election petition and not hefore"'t'21.'é:"'veieeticoiivi took place by ﬁling this writ petition of the Constitution of India -..__It i$'7a._1?.-'Lo Vsui:§1t:aijt»t<eVd that when an alternative remedy ie"V«e.vailab1é' Section 19 read with Section tliie Panchayat Raj Act {hereinafter referredto-_aeV._V'ti1e'"Aet3}j,-.the petitioner should not hasieiiogptoi-oé£ohed"this.Cotirt,=i 'K iiii CoiiiiseliiorZfeepondeiit No.4 has reiied on the decisioxi7.it1~ 2oo'1f'iijj."iKa§4;L.a ms to submit that the petitioii ﬁled niindé-r Artioie 226 of the Constitution of «..:nd%j"'«;5;»"ﬂAotv.i_maixitaix1abie and therefore writ petition has to' In support of his submission he also reiie'iiiiupo::iVe:.k_'~tti{ 1952 SC 84 to state that the petitioner 'v_canno'i; Iieve a remedy one, 'before election umier Article V' the Constitution of India and thereafter after ' eieotion by filing election petition under Section 15 of u Act. He submits that very filing of the writ petition . "Was not in aoeoréazice with Eat? one at no tomeéiwae available to the petitioner under Article 226 of the Constitution of India. Hence relying on the sai:iVVit3'}éo_V_ decisions he contends that the writ petition dismissed.

8. On perusai of material on recorded. itdbe4c*o'mes__ f clear that what action is c§1a11_enged_'herein.;i3ai'tei' issuance of calendar of event'si;i'V..:.2_ind_ the stage of filing of nomin4at_ion_"iinianeiri' reijeetion of nomination of the petitioiier Petition under Article fact that his nomination rejected is the grievanee At'._'tVlieiv:outset it is necessary to statevrtuiiati of events regarding any election is iissuV.'edV,V'V--.thi--.s 'Court must be cautious before in suVehv----matters. No doubt this Court has granted"an i_nt:eri_m order on 06.05.2010 thereby, enabling the ;')'etitioiiierii:vo participate in the eiection by directing fthe it .. ijsecond respondent to accept it '..fnoniination of the petitioner. But however necessary to observe that the said interim " "order is subject to the result of writ petition. Therefore =5, *'%..-sf/-v' iw"

"ﬁx 8 the moot point that has to be considered at the first instance is:

"Whether the Writ Petition. is maintainable or

9. As already stated, it is necessary to o'l)_:se1fvevVlt1ia:'_f V' once the calendar of events are issi1.e(:l«t1ie:1lg.3:octe'ssT"'. of election commences. In this context it isreievant refer to and rely upon decisiogg the Apexltjolnrtlllinlljthe case of N.P.PonnusLp::u}1i "~R2etur'rii'ng~'jofficer, Namakkal Constituencygiil District and others vxirhwetein the concept of election It has been stated that ' "the lawtlelectiorise' lndia, does not contemplate _ thaﬂtliere shoulclvbe two attacks on matters connected el_ecAﬁtio4ﬁ«-proceedings, one, while they are going on extraordinary jurisdiction of the High Corirt bylzarticle 226 of the Constitution (the ordinary Jj:.¢ri,sdiction of the courts been expressly excluded), and ohotﬁer after they have been completed by means of an ...election petition. Any matter which has the effect of V initiating an eiecticri should be brought up wily st: the .\-\<t}$~.

.ﬂ,,»¢ 9 appropriate stage in an appropriate mannenbefore a Special Tribunal and should not be brought up at an intermediate stage before any court. Under the election law, the only signiﬁcance which the rejectionvV.Vof._<»ia._ nomination paper as consists in the fact .

used as a ground to call the election _i'n"v--qineétionV". it Though the Apex Court made observatif-one i'r2._ti1e"'corite;:t.;_«« of Article 329(1)} of the.7 -cons£it_u'ei.on,e,»"':::;§__. seiict observations are squarely app1ie>ab:1'e_to theaipresevizt case also where on identica1--.<_f3«cts;'_V irenpﬁroperrejection of the nomination has been chaI.ienge__a :in""w;'-i'tV..'jVpetition under Article "ofgtheItEibonétitutioiniiwiof India. In the said decisionothe VAp_eX»A:_jCo'utt'~».e;Eso stated that "the word "Election" _to.be interpreted in at wide sense, that is 'Vito ;_A--t.o Vvconnote*****the entire procedure to be gone a candidate to the £egislatur"e".

'.._i().'V instant case also where the Grama . Paneiaayat election is called in question by filing this .Wri?;c_'PetVi'"tion. the expression "conduct of election" has _'tt:._ib5e":given a wiéer meaning. It incorporates the whole " :;3roeeo".ure whereby an "eieeteé member" is returned,

5., 'W '\ 10 whether or not it be found necessary to have a poll, it cannot therefore be used in a narrow sense. In the 4 instant case as already stated the calendar of events had been issued and filing and scrutiny of nomination has been done and on scrutiny of the nomination' _ the petitioner, the rejection had been ord~ere:df., V is i' this stage, the said order has been petition. Taking into consideration'* theoV.~e:gpVressi:';bei- stated by the Apex Court witvlutriegard to. a writ petition to cha1Ienge_."'~an.'iirn1iroper'~--rejection. under Article 226 of the ;g;.¢:iig;~5g;'_'_;1a5 {b be hem that the meintainable as in so far as election to the Panchayat is concerned, the position of ie_xieot"an§f different. VVA lear.net1.vJudge of this Court in the case of 'SV.iA.A,s:pa.tfiqharayana and another Vs Returning- 'iiiSLQﬁAttii1ahalli Grama Pcmchayat. Bangalore

-V Ruriézl. and others reported in 2001 (1) Kar.L.J };CP8_11a::s:" also relied upon the aforementioned decision of "jﬁpex Court and dismissed. the writ getition, .5 ELM'. » ll reserving iiberty tn the petitiener to seek relief by filing an electien petition after eleetien has taken place. »T

12. In the decision relied fupnn by-*"ti1ef1e's:1V?:I1'ﬁ§Vd .4 cetmsei for the petitioner there wees ehej;lei?zg1e..'medee-ee,_§:e:.3 .« rules with regard to reservafiop. meme" to VA Adyaksha and Upadhayaksha az;é« ﬁhe 'ciecieien it was heid since the ruie u;'_$A11el.<Vi" a.t_;:1 i«};_at persons had aiready' occupied their o£fi_ee~,u1i,der iheseijveircumstances , it was held be :rjie.'cEv§s1;Ei1rbance of such persons. be apgt.-1'ied to the present:V_eee e"' in the instant case goes to eke' met' namely. the jurisdiction of this... eeur"c *te ceiasiélefes to whether the neminatien

1)eenV"fi§;e:3:'Vby the petitioner is improperly V'*:tj'ejeeteed;-,:_}£1':; vﬂev1 of the decision of the Apex Court. such an .1ssae 'cergnet be gone into by this court in a writ ' ',petiti"o:1v"'f?;1ed under Article 226 of the Constigution of 4 __ VA Hence, reliance pieced on the afxxresam decision

-- isef nu avails 12

13. The learned counsel for the petitioner subxnits that in the instant case, the election by the Petiptionei-.._ was contested and result declared, on the basi1_s"ofV.'t*he interim order passed by this court this Writ it Hence the Apex Court decision is:'.not_-AappliCable'- toiitheeg A' case of the petitioner. What is n.ecessar5i to 'cee"i*-Leiteratecivl ' is that when the writ petition not :_rna'int:atinable any interim order aspect of maintainability 9:' the__ Under the circumstances i.""'hf.1'3:ii§*€§i?+¢ﬁ§¥ti:n from the grant of the Writ Petition. The Apex CcVnrtis"&e5c_isici1d :~1{:}.'t.1Ei'.i'c1y applies to the facts of the ' present case'-also,'

14..., alreadyii'-stated, the petitioner had full it fiedgeti remedy byifiling election petition under Section lV'1_9"read 15 of the Act, in which a finding won1§.iViha1.'e'i't§:.'iV:be given as to whether the rejection of ':.1omina'tio'n of the petitioner is right or not. It is also '*iiccesIs_ary to note that this court under writ jurisdiction exercise of power under Article 226 =- of the iiikﬁnnstitutinn sf India cannot give a. finding as in whether t as:

»// 3:' X» 13 the rejection of the nomination paper of the petitioner was improper or not. It is for the designated court to give such ﬁnding after full»-ﬂedged trial. This islrcene more reason as to why the writ petition Article 226 of the Constitution of India canno't.r.b'e.A_:tal{en'--«i to its logical conclusion by considering the prayer 'the petitioner with regard to quashingecaf 25Lt_inex:u:;-_--¢5';i-". axl¢r";«~. 'I The question as to whether theeﬁornination'lpe;pe'rs'Hof the petitioner was rightly rej.ected"is"a"questionoffeet and a ﬁnding on facts cannot be agiﬁéritvipetition. Under the circumstan-:ies--._ writ p'ef:iti4onl"_~.is "dismissed as not zrcaintazlvnablei'; _ i

15. far' question with regard to the status. of the peti_ti_oner is concerned, since on the' strength' '«of,:the interim order passed by this Court tiern:.itti'ng_"jt.he;.Vjjetitioner to contest the election he is . successfi1l."i't is necessary to reiterate the said interim .,ord:er was passed subject to result: of this writ petition. _'1\f:_rse{r' that the writ petition is held to be not inairrtainable, "Elie interim order is of no avail, Hence, the Writ Fetitisen is regeeted with e iiherty reserved is the ,2"

petitioner to challenge the improper rejectioxg of nomination papers by ﬁling an election petition' an appropriate authority if he is so aévised. SBN

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Karnataka High Court