Karnataka High Court
H D Thammaiah vs C C Madhu on 12 February, 2018
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF FEBRUARY, 2018
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
MISCELLANEOUS FIRST APPEAL No.7202 OF 2016 (MPA)
BETWEEN
H.D.Thammaiah,
S/o. Degudappa,
Aged about 46 years,
Kalyanagara,
Jyotinagar Post,
Chickmaglur District-577102. ...Appellant
(By Sri. Jayakumar S. Patil, Senior Counsel for
Sri. A.Mahammed Tahir, Advocate)
AND
1. C.C.Madhu,
S/o. Chandrashekarappa,
Aged about 42 years,
Chikka Kurubarahalli,
Jyotinagar Post,
Chickmaglur District-577102.
2. The Returning Officer/Election Officer,
Ward No.2, CMC,
Chickmaglur, O/o District Office,
Backward Community
Welfare Department
Zilla Panchayat, Chickmaglur-577101.
3. The City Municipal Council,
Chickmaglur-577101
2
Represented by
its Commissioner
4. N.D.Ravi,
S/o. Dharmegowda,
Aged about 41 years,
Nariguddenahalli,
Jyotinagar Post
Chickmaglur District-577102.
5. Smt. G.S.Uma,
W/o. Bhujendra,
Aged about 38 years,
Nariguddenhalli,
Jyotinagar Post,
Chickmaglur-577102. ...Respondents
(By Sri. K.S.Ganesh, Advocate for R1;
Sri. M.Munigangappa, HCGP, for R2;
Sri. Nagarajappa, Advocate, for R3;
Notice to R4 & R5 - Dispensed with)
This Miscellaneous First Appeal is filed under Section
27 of the Karnataka Municipalities Act, against the order
dated 07.10.2016 passed on EP No.2/13 on the file of the 1st
Additional Senior Civil Judge & Judicial Magistrate First
Class, Chikkamagaluru, partly allowing the petition filed
under Section 21 of Karnataka Municipalities Act, wherein
the result declared by Respondent No.1 declaring respondent
No.3 as a wining or returning candidate is hereby declared
as "null and void".
This Miscellaneous First Appeal coming on for further
hearing this day, the court delivered the following:
JUDGMENT
Challenging the judgment dated 07.10.2016 in Election Petition 2/2013, on the file of 1st Addl. Senior Civil 3 Judge, Chickmagaluru, the 3rd respondent in the said petition has preferred this appeal. The election petition was instituted by the 1st respondent in this appeal.
2. Briefly stated the material facts are that elections to City Municipality, Chickmagaluru was held on 07.03.2013 and in the said election, the appellant, respondents No.1, 4 and 5 contested from Ward No.2 of Chickmagaluru City. The 2nd and 3rd respondents in this appeal are the Returning Officer and the City Municipality respectively.
3. The counting of votes was held on 11.03.2013. The 1st respondent stated that after counting was over, the Returning Officer declared him that he had won in the election and took his signature on papers to that effect. But little later, the Returning Officer declared the appellant as the successful candidate. When the 1st respondent questioned the Returning Officer, it was brought to his notice that the postal votes were received belatedly, and those votes went in favour of the appellant and therefore he was declared as the successful candidate in the election. 4 The 1st respondent alleged that the Returning Officer favoured the appellant as there was collusion between them. Immediately the 1st respondent demanded the Returning Officer to furnish the details of the number of votes polled by him and the appellant and this was not considered by Returning Officer. With these allegations the 1st respondent sought recounting of votes, declaration of the appellant as the returned candidate as null and void and further declaration that he was the returned candidate from Ward No.2 of Chickmagaluru City.
4. The appellant and respondents No.3, 4 and 5 did not file statement of objections. The respondents No.2 and 3 appeared through District Government Pleader, but they did not file statement of objections immediately. The respondent No.2, i.e., the Returning Officer filed statement of objections on 09.06.2014 and the same was adopted by the appellant also. The Returning Officer contended that he conducted the elections and counting strictly in accordance with law. He denied favoritism in favour of the appellant and collusion between them. He specifically contended that the appellant 5 secured 994 votes and that the 1st respondent secured 992 votes. The counting was conducted in the presence of the candidates. He also stated that he received six postal ballots and out of them, four votes were valid and two were invalid. Out of the four votes, two votes were in favour of the appellant and two votes were in favour of the 1st respondent. Since the appellant had secured the highest number of votes, he declared the appellant as a successful candidate.
5. The 1st respondent adduced evidence as PW-1 and produced one document Ex.P.1 i.e., extract of votes secured by all the candidates.
6. It appears that in the course of the proceedings, the court below allowed I.A.No.3 filed by the 1st respondent for causing production of the ballot papers, the postal ballots and such other registers by the Returning Officer and the City Municipal Council. On 19.12.2014, the Returning Officer sent a letter to the court stating that all the ballots and the documents relating to election had been destroyed as per Rule 94 of Conducting of Election Rules, 1961. 6
7. Upon appreciating the materials placed before him and the oral evidence adduced by PW-1, the learned trial judge came to conclusion that the petition deserved to be partly allowed by holding that the declaration made by the Returning Officer that the appellant was the returned candidate as null and void. The learned trial judge has given the following reasons in support of his decision. a. The notices issued to the Returning Officer and the City Municipal Council were served on them on 23.03.2013 and that they appeared through District Government Pleader on 30.03.2013. They did not file statement of objections immediately. In the election petition, the counting of the ballots and announcement of the result were disputed seriously and therefore they should have preserved the ballots and should have produced the same before the court.
b. In spite of giving a direction to the Returning Officer on 23.11.2013 to cause production of the ballots and other registers pertaining to election, they were not produced.
c. On 19.12.2014 the 1st respondent sent a letter to the court stating that the ballots and other 7 documents relating to election had been destroyed according to Rule 94 of the Conducting of Election Rules, 1961. This letter was written by the Returning Officer himself. They had the knowledge by that time that election petition was pending and therefore they should not have destroyed the ballots. This conduct of the Returning Officer appeared to be unfair and suppressing certain facts.
d. The specific allegation of the 1st respondent in the court below was that the postal ballots were not properly counted. Since it was his case that he polled two postal ballots, but the Returning Officer showed that the appellant polled two postal ballots, the apprehension of the 1st respondent appeared to be well founded. In Ex.P.1 there are two columns viz., HfðvÀªÁzÀ CAZÉ ªÀÄvÀ ¥ÀvU À ÀÄ (i.e., valid postal ballots) and wgÀ¸ÀÌøvÀ Àæ ¼ CAZÉ ªÀÄvÀ ¥ÀvU À ÀÄ (rejected votes).
Àæ ¼ In the column rejected votes, the Returning Officer just put a sleeping line indicative of the fact that there were no rejected votes. Therefore the six postal ballots appears to have been not accounted for. e. The Returning Officer is provided with guidelines containing Rules and in page 104 and 105 of 8 this guidelines book, Rule 19.8 (f) deals with the procedure to be followed while counting the postal ballots. There is also a separate procedure as to how the ballots must be preserved after counting is over. The Returning Officer has not followed this procedure. This indicates that there was no fair counting of postal ballots. f. The conduct of the Returning Officer appears to be highly suspicious. He tried to avoid to appear before the court immediately after service of notice. He also did not choose to enter witness box after he put in his appearance. The 1st respondent thereby lost the valuable right of confronting to the Returning Officer so many documents and also an opportunity of cross examining him.
g. The collusion between the Returning Officer and the appellant could be very well made out because the appellant adopted the objection statement filed on behalf of the Returning Officer. The appellant should have filed statement of objections separately.
h. The letter dated 19.12.2014 written by the Returning Officer would show that after the counting was over, the ballots and the relevant 9 registers in connection with election would be sent to District Centre. This letter very much indicated that after receipt of notice by the Returning Officer to produce those documents including the ballots and postal ballots, the Returning Officer sent them to District Centre. The letter did not indicate as to on what date the ballots and the postal ballots were sent to District Centre. This would show that the Returning Officer intentionally withheld the ballots and the postal ballots from producing before the Court.
i. Since recounting of the votes appeared to be impossible, and for other irregularities as pointed out it was necessary that the election result should be declared as null and void.
8. Questioning the correctness of the above findings, the first point that the learned senior counsel for the appellant argued was that actually the Returning Officer was not a necessary nor a proper party in an election dispute. He referred to Section 82 of the Representation of People Act, 1950 and Section 21 of the Karnataka Municipalities Act, 1964. In this regard, he referred to a 10 judgment of the Supreme Court in the case of MICHAEL B FERNANDES VS C.K.JAFFAR SHARIEF AND OTHERS [AIR 2002 SC 1041] and further submitted that because the Returning Officer did not appear before the Election Tribunal, it appears that the learned Presiding Officer of the Tribunal was swayed away for non-appearance of the Returning Officer to hold that there was collusion between the Returning Officer and the appellant.
9. Secondly, the learned senior counsel argued the Tribunal has proceeded to draw adverse inference for non- production of the ballot papers. It was a wrong finding given by the Tribunal. The Returning Officer was appointed by the District Election Officer at the time of election. He is an officer drawn from some department of the Government for the purpose of conducting election. Soon after the election, he would resume the duty in the department where he is working and the custody of the ballot papers as also the registers and other documents pertaining to the election were not available with the Returning Officer. The ballot papers would be preserved for sometime by the District 11 Election Officer. The Election Tribunal should have issued summons to the District Election Officer for production of ballot papers. Without taking summons to a proper officer, just because the Returning Officer did not produce the ballot papers, the Tribunal should not have drawn adverse inference. In fact, the Returning Officer could not come to know that summons had been issued for production of the ballot papers and it was only after the Tahsildar wrote a letter to him, that he came to know about the whole proceedings. In these circumstances, no fault could be found with the Returning Officer. The ballot papers could not be produced because they were already destroyed after the prescribed period was over.
10. The third point that he argued was, the entire controversy, as according to the first respondent, arose because of not counting the postal ballots properly. The records disclose and that it is undisputed also that six ballots were received through post. Out of six, the appellant and the first respondent polled two votes each and two were invalid. By following the procedure provided under the 12 Conducting of Election Rules, the postal ballots were counted first. The first respondent who adduced evidence as PW1 admitted this in the cross-examination although he has taken a contrary stand in the petition and also in his affidavit filed in lieu of examination-in-chief. After taking into account two postal ballots, it was found that the appellant had polled highest number of votes and, therefore, he was declared elected. With regard to the procedure to be followed for counting the postal ballots, the learned senior counsel referred to rule 58A of the Karnataka Municipalities (Election of Councilors) Rules, 1977 and argued further that Rule 58A(4) would provide for rejection of ballot papers if they were found to be defective. Rule 58A(11) provides for counting only the valid votes given by postal ballot. In Ex.P1, the result sheet prepared in Form No. 18, the Returning Officer has just put a sleeping line, indicative of 'nil' in the column 'rejected postal ballots'. Probably, noticing 'nil' entry in this column, the Election Tribunal appears to have come to a conclusion that there was no invalid votes given through postal ballot and thus 13 the Returning Officer committed an error in counting the votes. But, the admitted position is that two votes were invalid and they were not counted. This was within the knowledge of first respondent. Thus, the conclusion of the Tribunal that there was no proper counting of the postal ballots cannot be sustained.
11. Fourth point he argued was that the appellant had secured highest number of votes; even if the two rejected postal ballots had been considered, there was no guarantee that the first respondent would have polled those two votes. There were totally four candidates in the election fray, anybody would have polled those two votes. The first respondent's contention that the Returning Officer had declared him a successful candidate is without any documentary basis. According to his own pleading, it is through media persons he came to know that he had won in the election. The first respondent being the petitioner before the Election Tribunal sought for recounting of the votes of the constituency where he contested for the election. Because of the faulty procedure adopted by the 14 Election Tribunal as well as the by first respondent in conducting the election dispute, if the ballot papers could not be produced and recounting was found to be impossible, and there was no need to nullify the election result. The learned senior counsel in this regard referred to judgment of the Supreme Court in the case of SANTOSH YADAV vs NARENDER SINGH [AIR 2002 SC 241]. He therefore argued that this appeal would deserve to be allowed and impugned order set aside.
12. The learned counsel appearing for the first respondent argued that the entire materials available on record would show that there was a collusion between the appellant and the Returning Officer. Throughout he acted in favour of the appellant. Having received the summons of the election petition he did not appear before the Tribunal. Being aware of the fact that recounting was sought, the ballots were intentionally destroyed. The first respondent also made an application as per I.A.1 for issuing summons to the Returning Officer to produce the ballots. Even then he did not appear. If he did not have the custody of the 15 ballots as by the time they had been sent to the District Election Officer, the Returning Officer could have appeared before the Tribunal and said that the ballots were not available with him and thereby the respondent would have taken summons to District Election Officer. He further submitted that the Returning Officer was a necessary party as allegations of collusion and favoritism have been made. The Returning Officer in his statement of objections has not stated that he should not have been made as a party. He refers to the judgment of the Supreme Court in the case of JYOTI BASU AND OTHERS vs DEBI GHOSAL AND OTHERS [AIR 1982 SC 983].
13. Next point of argument was that, out of six postal ballot papers, if really two votes were invalid, that could have been shown specifically in Ex.P1. Rather in Ex.P1 what is shown is that there were no invalid votes. In these circumstances, a question as to what happened to two votes would arise. There is no proper explanation for this. For this reason alone, the election result could be set aside. 16
14. He lastly contended that the collusion between the appellant and the Returning Officer could be apparently made out. The appellant did not file a separate objection statement, rather he adopted the objection statement filed by the Returning Officer. This was not permitted. The Election Tribunal has rightly come to the conclusion that the result should be nullified in the circumstance of the fact that recounting was not possible due to destruction of the ballots. He, therefore, argued for dismissing the appeal.
15. In the light of the above arguments, the points that can be formulated for discussion are as follows:-
(i) Has the Election Tribunal correctly held that the Returning Officer acted unfairly, just because he did not appear before it after service of summons and that he did not produce the ballots?
(ii) Has the Election Tribunal arrived at a proper conclusion that the postal ballots were not properly accounted?17
(iii) Is the Election Tribunal right in nullifying the election result?
(iv) What order? Point No. (i):-
16. The argument of the learned senior counsel for the appellant is the Retuning Officer is neither a proper nor a necessary party to an election dispute. Incidentally, this issue arises though the Returning Officer in the statement of objections filed before the Tribunal has not pleaded that he should not have been a party. Section 82 of the Representation of the People Act, 1950 and Section 21 (3) of the Karnataka Municipalities Act are necessary to be referred here.
Section 82 of the Representation of the People's Act is as below :-
"82. Parties to the petition:- A petitioner shall join as respondents to his petition:
a) Where the petitioner, in addition to claiming declaration that the election of all or any of the returned candidates is void, claims a 18 further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and
b) any other candidate against whom allegations of any corrupt practice are made in the petition".
Section 21(3) of the Karnataka Municipalities Act is as below :-
"21. Election petitions:-
3. A petitioner shall join as respondents to his petition all the candidates at the election".
17. Plain reading of these two sections makes it clear that the Returning Officer need not be made a party in an election petition. Only the candidates at the election can be joined as parties. This issue is settled by the pronouncement of the Supreme Court in the case of Michael B Fernandes (supra). In fact, in this judgment, the earlier judgment of the Supreme Court in Jyoti Basu (supra) has also been referred. In para 14 of the judgment in Jyoti 19 Basu, the Hon'ble Supreme Court has clearly observed as below :-
"14. In view of the foregoing discussion we are of the opinion that no one may be joined as a party to an election petition otherwise than as provided by Sections 82 and 86(4) of the Act. It follows that a person who is not a candidate may not be joined as a respondent to the election petition.......".
18. Again in the case of Michael B Fernandes (supra), the Hon'ble Supreme Court reiterated the view taken by it in Jyoti Basu's case and held that the public policy and legislative wisdom both seem to point to an interpretation of the provisions of the Representation of the People Act which does not permit the joining, as parties, of persons other than those mentioned in Section 82 and 86 (4). Therefore, the argument of the learned senior counsel for the appellant needs to be upheld.
19. The Returning Officer having been made a party did not appear before the Election Tribunal soon after receiving summons and also did not produce the ballots 20 when summons was again issued to him upon an application made by the first respondent. He could have appeared. But, the learned senior counsel sought to explain his absence by submitting that he was an officer in a government department and after the election was over, he went back to his office. This could be the reason for non- appearance before the tribunal. But, the tribunal has observed that summons was served on him. Be that as it may, merely because he did not appear, no adverse inference could be drawn against him. If allegations of favoritism are made, they must relate to the time when the election was held and not his subsequent conduct. Therefore, this finding of the tribunal cannot be sustained.
20. Where an application was made for summoning the ballots, it appears that the concerned Tahsildar gave information to the Returning Officer to produce the ballots and by that time it appears the ballots had been destroyed. The custodian of the ballots is not the Returning Officer, but it is the District Election Officer. Therefore, the first respondent, i.e., the petitioner before the Tribunal should 21 have taken summons to the District Election Officer for production of the ballots and such other registers concerned in the election. Probably ballots would have been produced before the Election Tribunal had the proper procedure been followed. Non-production of ballots was found to be impossibility as it was beyond the control of the Returning Officer who had been just deputed for election work from another department. Absolutely there are no materials to impute collusion between the appellant and the Returning Officer and also favoritism as has been alleged. The Election Tribunal appears to have been swayed away for non- appearance of the Returning Officer. Favoritism or collusion must be established by the party alleging them. No inference can be drawn from extraneous circumstances. Therefore, this point is answered in negative.
Point No. (ii):-
21. The first respondent in his petition has stated that according to the information given to him postal votes were received by him belatedly and all votes were in favour of the 22 appellant and, therefore, the latter was declared elected. Even in his examination-in-chief he has stated so. But, in the statement of objections filed by the Returning Officer, it is stated that totally six votes were received by post and out of them, only four were found valid and two votes were rejected. When PW1 was subjected to cross-examination, he admitted that he and his agent were present at the time of counting and that the postal votes would be counted before taking the other ballots for counting. He admitted that six postal votes were received and also admitted that postal votes were taken up for counting before opening the electronic voting machines for purpose of counting. So this answer of PW1 falsifies his specific plea in his petition and the statement he has made in his affidavit filed in lieu of examination-in-chief. It appears that the Election Tribunal has not considered this aspect of the matter. As it is clear from the admission given by PW1 that postal ballots were counted first, whether the stand taken by the Returning Officer that there were only four valid votes which were considered, has to be examined. Even when PW1 was 23 questioned in the cross examination that he and the appellant polled only two votes each out of six, it appears that he has given evasive answers. Now, the rules regarding counting of postal ballots is required to be examined to appreciate the evidence in this regard.
22. Rule 58A of the Karnataka Municipalities (Election of Councilors) Rules, 1977 (amended up to 2012) deals with counting of votes received by posts. Sub-rule (4) of Rule 58A reads as below :
58A. Counting of votes received by post:
"58A(4) If the said declaration is not found or has not been duly signed and attested or is otherwise substantially defective or if the serial number of the ballot papers as entered in it differs form the serial number endorsed on the cover in Form 14D, that cover shall not be opened and after making an appropriate endorsement thereon the returning officer shall reject the ballot paper therein contained".
Rule 58A(8) deals with rejection of postal ballots. This rule reads as below:
24
"58A(8) a Postal ballot paper shall be rejected-
(a) if it bears any mark (other than the mark to record the vote) or writing by which the elector can be identified; or
(b) if no vote is recorded thereon, or
(c) If votes are given on it in favour of more candidates than the candidates to be elected, or
(d) If it is a spurious ballot paper, or
(e) if it is so damaged or mutilated that its identity as a genuine ballot paper cannot be established or
(f) if it is not returned in the cover sent along with it to the elector by the returning officer".
Rule 58A(11) deals with result sheet and the said rule reads as below :
"58A(11) The returning officer shall count all the valid votes given by postal ballot in favour of each candidate, record the total thereof in the result sheet in Form 18 and announce the same".
Reading of these rules make it clear the manner in which the postal ballots have to be accounted.
25
23. Ex.P1 is the result sheet in Form No.18. In the column pertaining to postal ballots, it is shown that the appellant has polled two votes and the first respondent has polled two votes, but corresponding to the row 'rejected votes' the Returning Officer has just put a sleeping line indicative of 'nil'. The Election Tribunal has observed that no postal ballot was rejected, but the total tally does not come to six. Therefore, it has been held that counting is not proper.
24. This finding given by the Tribunal is of course probable. But, Ex.P1 shows that the appellant totally secured 996 votes which is inclusive of two postal votes. The first respondent secured 994 votes which is inclusive of two postal votes in his favour. Totally, there were four candidates at the election. Even if two votes which are not accounted can be considered to be valid, the probability of first respondent securing those two votes was not certain as any candidate might have polled those two votes. The learned senior counsel argued that because two votes were not in order, i.e., not in conformity with Rule 58A(4), they 26 were not opened at all and therefore the Returning Officer just put a sleeping line. This would indicate that those ballots were not considered at all. To accept this argument, there is no material on record. In the statement of objections filed by the Returning Officer, it is just stated that two postal votes were invalid and therefore the Returning Officer could have mentioned about the invalid votes in Ex.P1. Just because he did not make a mention of it, it cannot be said that there was improper counting of postal votes and that there was collusion between the appellant and the Returning Officer. It is not the case of the first respondent that the appellant and the Returning Officer knew each other from the beginning. The Returning Officer is a government servant who was temporarily drawn from another department for conducting election and he is expected to discharge his duty impartially. Even if two votes had been considered, as there is no guarantee that the first respondent could have secured them, it cannot be said that there was improper counting. The finding of the Election 27 Tribunal therefore cannot be sustained. This point is answered in negative.
Point No. (iii):-
25. The Election Tribunal has held that there is irregularity in counting of votes and the postal votes are not counted properly. There was probability of a 'tie' between the appellant and the first respondent had there been proper counting and therefore the result declared by the Returning Officer cannot be accepted as fair and proper. This finding that there would have been certainly a 'tie' between the appellant and the first respondent cannot be accepted for the reasons stated while discussing point No. (ii). Chances of happening of 'tie' was remote. The evidence on record discloses that there was a mistake committed by the Returning Officer in not mentioning the rejected postal votes in Ex.P1. For this reason it cannot be said that the entire election results should be set aside. The appellant is a successful candidate. Having regard to a remote chance of first respondent securing another two postal ballots, which 28 would have resulted in just a 'tie' between the two cannot be a reason for nullifying the result. In this context, it is useful to refer to the judgment of the Supreme Court in the case of Santosh Yadav (supra) where it is held as below : -
"8. It is well settled by a catena of decisions that the success of a winning candidate at an election should not be lightly interfered with. This is all the more so when the election of a successful candidate is sought to be set aside for no fault of his but of someone else. That is why the scheme of Section 100 of the Act, especially clause (d) of sub-section (1) thereof clearly prescribes that in spite of the availability of grounds contemplated by sub-clauses (i) to (iv) of clause (d), the election of a returned candidate shall not be avoided unless and until it was proved that the result of the election, in so far as it concerns a returned candidate, was materially affected".
26. Therefore, it has to be stated now that the Election Tribunal has committed an error both on facts and on law in declaring the election result as null and void. This point is therefore answered in negative.
29Point No. (iv):-
27. From the above discussion, I come to the conclusion that the impugned order of the Election Tribunal should be set aside. Hence, the following order : -
(i) Appeal is allowed.
(ii) The order dated 7.10.2016 in Election Petition
2/2013 on the file of I Addl. Senior Civil Judge/Election Tribunal, Chickmagaluru, is set aside.
(iii) Election Petition is dismissed.
(iv) There is no order as to costs.
Sd/-
JUDGE
Sd/ckl