Karnataka High Court
Sri Ravikumara Kanchanahalli vs Ramanagara District Election Officer on 13 February, 2020
Equivalent citations: AIR 2020 KARNATAKA 155, AIRONLINE 2020 KAR 381
Author: S.Sujatha
Bench: S.Sujatha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MRS.JUSTICE S.SUJATHA
WRIT PETITION No.54511/2016 (LB - ELE)
BETWEEN :
SRI RAVIKUMARA KANCHANAHALLI
S/O LATE KONEGOWDA
AGED ABOUT 32 YEARS
R/AT KANCHANAHALLI VILLAGE,
KABBALU POST, SATHANUR HOBLI,
KANAKAPURA TALUK
RAMANAGARA DISTRICT - 562131 ...PETITIONER
(BY SRI MANVI SHARMA, ADV. FOR SRI NITIN R., ADV.)
AND :
1. RAMANAGARA DISTRICT ELECTION OFFICER
& THE DEPUTY COMMISSIONER
RAMANAGARA DISTRICT-571511
2. ELECTION OFFICER 2016-RO-ZP-KNP
6-13, ZILLA PANCHAYAT ZONE,
KANAKAPURA TALUK
RAMANAGARA DISTRICT - 571511
3. SHRI SHANKAR
S/O LINGEGOWDA
AGED ABOUT 52 YEARS
R/AT KURUBARAHALLIDODDI VILLAGE
KABBALU POST, SATHANUR HOBLI,
KANAKAPURA TALUK
RAMANAGARA DISTRICT - 562117
4. SHRI KABBALEGOWDA
S/O M.KALEGOWDA
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AGED ABOUT 52 YEARS
R/AT KABALU VILLAGE & POST
SATHANUR HOBLI,
KANAKAPURA TALUK
RAMANAGARA DISTRICT - 562131 ...RESPONDENTS
(BY SRI K.P.BHUVAN, ADV. FOR R-3;
SRI O.RAJANNA, ADV. FOR R-4; R-1 & R-2 ARE SERVED.)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 31.08.2016 PASSED BY THE II ADDL. DISTRICT AND
SESSIONS JUDGE, RAMANAGARA (TO SIT AT KANAKAPURA) IN
E.P.NO.5002/2016, VIDE ANNEXURE-H.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner has challenged the order dated 31.8.2016 passed by the II Addl. District and Sessions Judge, Ramanagara, sitting at Kanakapura, in E.P.No.5002/2016 whereby the interlocutory application filed by the respondent No.3 under Order VII Rule XI(a) of the Code of Civil Procedure read with the provisions Karnataka Grama Swaraj Panchayat Raj Act, 1993 are allowed, consequently dismissing the election petition.
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2. The petitioner claiming to be a voter/RTI activist has filed the Election Petition No.5002/2016 seeking a declaration to the election of the 3rd respondent as member to the Sathanur Zilla Panchayat, Ramanagara District, is null and void. Subsequent to filing of the election petition, Sri. Kabbalegowda was impleaded as respondent No.4. During the pendency of the said proceedings, the respondent No.3 has filed an application under Order VII Rule XI(a) r/w Section 151 of CPC seeking to reject the writ petition on the ground that the petitioner had not paid the security deposit of Rs.2,000/- as required under the Karnataka Gram Swaraj and Panchayath Raj Act, 1993 ('Act' for short) and has not complied with the provisions of Section 15(3) of the Act.
3. The petitioner contested the said application. On considering the arguments advanced by both the parties, the learned District Judge has allowed the -4- application and consequently dismissed the election petition. Hence, the present writ petition.
4. The arguments of the learned counsel Ms.Manasi Sharma appearing for the petitioner are three fold. Firstly, the defects on the basis of which I.A. has been allowed consequently rejecting the election petition are curable in nature. Secondly, no reasonable opportunity was provided to the petitioner to cure such defects. Thirdly, under evidence law, presumption is that the petition is filed in accordance with law unless the registry raises objection. No such objections were raised by the Registry.
5. Learned counsel has placed reliance on the following judgments:
1. Umesh Challiyil Vs. K.P.Rajendran reported in AIR 2008 SC 1577
2. K. Krishnaraj Hegde Vs. Anil C. Lobo and others reported in AIR 2015 Kar. 152 -5-
3. Chandrakant Uttam Chodankar Vs. Dayanand Rayu Mandrakar and others reported in AIR 2005 SC 547
4. Sharadendu Tiwari Vs. Ajay Arjun Singh and others reported in 2014 SCC Online MP 8637
5. Civil Revision Petition No.1062/2012 (D.D.2.7.2014) in the case of G.Mallikarjunappa Vs. M.T.Eshwarappa.
6. Learned counsel distinguishing the ruling of the Cognate Bench of this Court (Dharwad Bench) rendered in CRP No.1062/2002 submitted that the petitioner therein had not cured the defect at the appropriate stage. Hence, the petition was dismissed.
Appropriate stage has to be construed in the light of the judgment of the Hon'ble Apex Court in the case of Sri.K.Krishnaraj Hegde, supra. It was argued that the appropriate stage would be when the formal defects or such other defects are pointed out either by the adversary or the court, at that point of time it is necessary to provide an opportunity to the petitioner to -6- cure the defects. The memo filed by the petitioner seeking permission to cure the defects has not been considered by the Trial Court. In such circumstances, the order of the Trial Judge, dismissing the election petition is unjustifiable.
7. Learned counsel for the respondents supporting the impugned order submitted that the Trial Judge has rightly relied upon the decision of this Court in G.Mallikarjunappa's case which is squarely applicable to the facts of the case. The interpretation of the learned counsel for the petitioner inasmuch as the phrase 'appropriate stage' is misplaced. The provisions of Sections 15 and 171 relating to the election matters stand on a different footing than the other provisions of the Act. It was mandatory on the part of the petitioner to comply with section 15(3) of the Act as well as section
171. The same not being adhered to, the Trial Judge has rightly dismissed the election petition allowing the -7- application filed by the respondent No.3. In support of his contentions, learned counsel has placed reliance on the following judgments:
1. Harcharan Singh Josh Vs. Hari Kishan reported in AIR 1996 SC 3350.
2. Basavaraj Vs. Hire Doddanagouda and others reported in ILR 2002 KAR 5019.
8. I have carefully considered the submissions of the learned counsel appearing for the parties and perused the material on record.
9. The moot question that arises for consideration of this court is:
Whether the dismissal of the election petition under Section 17 of the Karnataka Gram Swaraj and Panchayat Act, 1993 by the Trial Judge allowing I.A. filed under order VII Rule XI(a) of CPC is justifiable?-8-
10. The thrust of the argument of the learned counsel for the petitioner is that the defects i.e., non furnishing of copies equivalent to the number of respondents mentioned in the petition and non attestation of such copies by the petitioner under his own signature are curable defects. In order to ascertain what is curable defect, it is apt to refer to the judgment of the Hon'ble Apex Court in Harcharan Singh Josh's case, supra, wherein the Hon'ble Apex Court has categorically held that the concept of substantial compliance has no application. It was observed that the copy of the affidavit supplied to the respondent does not contain affirmation by the oath commissioner and such defect is not curable. Therefore, the dismissal of the election petition on this ground is sustainable in law.
Thus, the affirmation before the prescribed authority in the affidavit and supply of its true copy are held to be mandatory.
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11. Similarly, in the case of Basavarj, supra, the Hon'ble Apex Court referring to sub-section(3) of Section 81 of the Representation of People Act which is in pari materia with section 15(3) of the Act, held that the compliance of the said provision is mandatory.
12. In the judgment referred to by the learned counsel for the petitioner in Umesh Challiyil, supra, the Hon'ble Apex Court dealing with the case of election petition inasmuch as the affidavit filed along with the election petition not duly verified in the form as required, observed that in order to maintain sanctity of the election, the proper course for the court is not to dismiss the election petition at the threshold. It was a case where the in the affidavit instead of writing "that I believe to be true" what has been stated, "no part thereof is false and nothing which is relevant has been concealed". This verification was found by learned single Judge to be defective. Further, the words "solemnly
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affirmed.........." occurred above the signature of the deponent. The main distinguishable aspect is the Hon'ble Apex Court was dealing with Section 83 of the Representation of the People Act, 1951. Section 86 of the said Act provides for dismissal of an election petition in limine for non-compliance with Section 81, 82 and 117 but does not refer to Section 83. However, Section 17 of the Act provides for dismissal of the petition for non-compliance of Section 15.
13. In K. Krishnaraj Hegde's case, supra, the Cognate Bench of this Court dealing with the dismissal of the election petition pertaining to Karnataka Muncipalities Act, 1964 in the context of the defect found in the verification observed that very rarely election petitions would be filed. Whenever election petitions are filed, serious allegations about correct practice or about corrupt practices or about the contestant being disqualified would be made. In order to
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consider such vital pleas, it is better that formal defects in such verification of pleadings must be pointed out either by the adversary or the court, at the earliest. It is clear that again in this case the Hon'ble Court was dealing with a defect found on the verification of pleadings.
14. In Sharadendu Tiwar's case, supra, the defect found in the affidavit in its verification was the subject matter before the Hon'ble Apex Court. In that context it is held to be curable.
15. From the aforesaid judgments what could be envisaged is that the election petition cannot be equated to an election at law or in equity, but such rights are purely creature of statute. If the statute renders any particular requirement to be followed, no dispensation of such mandatory provisions could be made or such mandatory provisions could be waived off to uphold the non compliance. It is well settled law that such
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procedure has to be strictly adhered to. Any deviation from such procedure would render the petition not only irregular, but illegal. It goes to the root of the matter. Non compliance of such mandatory provisions of the statute would not be considered as curable. Hence, the arguments of the learned counsel for the petitioner cannot be countenanced in view of the mandatory provisions of sections 15(1), 15(3) and 171 of the Act which reads as under:
15. Election petition.- (1) No election to fill a seat or seats in a Grama Panchayat shall be called in question except by an election petition presented on one or more of the grounds specified in sub-section (1) of section 19 and section 20 to the Designated Court within whose territorial jurisdiction the panchayat area concerned or the major portion of the panchayat area concerned is situate by any candidate at such election or by any voter qualified to vote at such election together with a deposit of five hundred rupees as security for costs, within thirty days from, but not earlier than, the date of declaration of the result of the election of the returned candidate or if there
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are more than one returned candidate at the election, and if the dates of declaration of the results of the their election are different, the last of those dates.
(2)........
(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be true copy of the petition.
171. Application of certain sections relating to elections.- (1) The provisions of sections 15, 16, 17, 18, 19, 20, 21, 22, 23, and 24 shall apply mutatis mutandis in respect of election to Zilla Panchayat, the application being to the designated court having jurisdiction and the deposit as security for costs being two thousand rupees. Any person aggrieved by any decision or order of the designated court under this section may, within thirty days from the date of such decision or order appeal to the District Judge and the decision of the District Judge on such appeal shall be final."
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16. These provisions at any stretch of imagination cannot be held to be directory but are mandatory. Non compliance of the mandatory provisions requires to be analyzed in the light of Section 17 of the Act. Section 17 of the Act postulates that the Designated Court shall dismiss the election petition which does not comply with the provisions of Section 15 of the Act.
17. In the light of these provisions, learned Trial Judge has rightly dismissed the election petition. No exception can be found with the order impugned.
For the reasons aforesaid, writ petition does not merit any consideration.
In the result, writ petition stands dismissed.
Sd/-
JUDGE Dvr: