Karnataka High Court
Smt Bhavyaranganath vs Smt R Saraswathiramanjiappa on 9 December, 2020
Bench: B.V.Nagarathna, N S Sanjay Gowda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF DECEMBER, 2020
PRESENT
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
W.A.No.323/2020 (LB -ELE)
BETWEEN:
Smt. BhavyaRanganath,
Wife of Ranganath,
Aged about 29 years,
Bandarahalli village,
Gouribidanur Taluk,
Chikkaballapura District-561 210. ... Appellant
(By Sri. Jayakumar.S.Patil, Senior Counsel for
Sri. Somasekhara K.H. Advocate)
AND:
1. Smt. R.SaraswathiRamanjiappa,
Wife of Ramanjinappa,
Aged about 35 years,
Residing at Nagaragere Village,
Gouribidanur Village,
Chikkaballapura District-561 210.
2. Smt. Ashwathamma,
Wife of G.S.Gangappa,
Aged about 50 years,
2
Manivala village,
Gouribidanur Taluk,
Chikkaballapura District-561 210.
3. Smt. Adilakshmamma,
Wife of Gangadharappa,
Aged about 52 years,
Vatadahosahalli village,
Gouribidanur Taluk,
Chikkaballapura District-561 210
... Respondents
(By Sri. Nishanth .A.V., Advocate for C/R-1,
R-2 & R-3 are served and unrepresented)
This appeal is filed under Section 4 of the
Karnataka High Court Act praying to allow the above
Writ Appeal and set aside the order dated 06/03/2020 in
W.P.No.30480/2017 (LB-ELE) ad further please to allow
the Writ Petition No.30480/2017 (LB-ELE).
This appeal, having been heard and reserved for
judgment, coming on for pronouncement this day,
SANJAY GOWDA, J., delivered the following:
JUDGMENT
The undisputed facts leading to filing of this appeal are as follows:
The Elections to the Chikkaballapura Zilla Panchayath and so also the elections to the 3 Gowribidanuru Taluk Panchayath were simultaneously conducted on 13.02.2016.
2. In the said election, Smt. Bhavya Ranganath, (appellant herein, who shall, hereinafter be referred to as the 'Returned Candidate') contested on a Bharatiya Janatha Party (BJP) ticket to the Nagaragere constituency and was declared to be elected by a margin of 218 votes.
3. This election was challenged by Smt. R.Saraswathi Ramanjinappa, (1st respondent herein, who shall, hereinafter be referred to as 'the Election Petitioner) who had also contested the election on a Congress ticket, but had however, lost the elections by the aforesaid margin of 218 votes and as a result, had filed an Election Petition No.1/2016 under Section 15 read with Section 171 of the Karnataka Gram Swaraj and Panchayat Raj Act 1993 (for short, hereinafter referred 4 to as 'the Act') challenging the election of the Returned Candidate.
4. The Election Tribunal, on consideration of pleadings and evidence adduced before it, came to the conclusion that the Election Petitioner had proved that there was swapping/exchange of the Electronic Voting Machines (EVM) pertaining to polling Station No.183 i.e., Hunasenahalli, which had resulted in improper reception of votes in favour of the Returned Candidate and which in turn, had materially affected the elections. The Election Tribunal, accordingly, allowed the Election Petition in part and set aside the election of Smt. Bhavya Ranganath.
5. The Election Tribunal, however, came to the conclusion that the Election Petitioner was not entitled to be declared as the Returned Candidate as she had not proved that she had secured 1128 votes more than the Returned Candidate and it proceeded to reject the claim 5 of the Election Petitioner to be declared as the Returned Candidate. The Election Tribunal, ultimately, directed the concerned authority to hold fresh elections without giving scope for swapping of EVMs.
6. The Election Tribunal, in order to come to the said conclusion, recorded a finding that the EVM in respect of Zilla Panchayath, Nagaragere Constituency had been swapped with the EVM of the Taluk Panchayath, Melya Constituency, after noticing that the controlling unit of the EVM bearing No.49837, which had been assigned to the Zilla Panchayath elections, had actually been utilized for counting the votes cast in respect of elections held to the Taluka Panchayath and the controlling unit of the EVM bearing No.49837 which had been assigned to the Zilla Panchayath elections had actually been utilized for counting the votes in respect of Taluka Panchayath election.
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7. This decision of the Election Tribunal by which the election was aside and fresh elections were ordered to be conducted was challenged before this Court, by both the Election Petitioner as well as by the Returned Candidate.
8. The Returned Candidate challenged the decision insofar as it related to setting aside of her election, while the Election Petitioner challenged the rejection of her claim to be declared as the Returned candidate.
9. The learned Single Judge after considering the matter in detail proceeded to dismiss both the writ petitions.
10. The learned Single Judge in the course of the judgment recorded a finding that EVMs were indeed swapped and this had resulted in the results of the election being materially affected. The learned Single Judge took note of the fact that the Election Officer of 7 the Zilla Panchayath admitted that the controlling unit for the Zilla Panchayath had been used for counting the votes cast in respect of the Taluk Panchayath and similarly the controlling unit of Taluka Panchayath had been used for counting the votes cast in respect of the Zilla Panchayath. The learned Single Judge also took the view that the findings of the Election Tribunal could not be termed as perverse necessitating interference under Article 227 of the Constitution of India and proceeded to dismiss the Writ Petition of the Returned Candidate.
11. The learned Single Judge, insofar as the Writ Petition of the Election Petitioner was concerned, came to the conclusion that the evidence regarding the number of votes secured by each of the candidates in the polling booth would have to be taken note of and such an ascertainment could not be undertaken by this court and the nature of allegations made would only make the reconstruction of voting on the basis of 8 existing data impractical and he, therefore, declined to entertain the writ petition of the Election petitioner.
12. It is to be stated here at the very outset that the dismissal of the writ petition of the Election Petitioner has not been challenged and the Election Petitioner has thus accepted the said order and therefore, the question as to whether she was required to be declared as the Returned Candidate need not be considered by us in this appeal.
13. In this appeal, therefore, the only question that is therefore required to be considered is :
1) Whether the decision of the Election Tribunal in ordering for a fresh election, as affirmed by the learned Single Judge, is justified or not?
2) What order?
14. It may also be pertinent to state here that though, initially, an argument was advanced by learned 9 counsel for the respondent, Sri. Nishanth A.V., that this Writ Appeal could not be maintained as the learned Single Judge had clearly stated in his order that he was exercising his jurisdiction under Article 227 of the Constitution of India, he ultimately stated that he would not urge this point and would address the Court on the merits of the matter.
15. Learned Senior Counsel, Sri Jayakumar S. Patil, appearing for the appellant contended that:
a. There was insufficient material on record for the Election Tribunal to come to the conclusion that the elections had been materially affected, necessitating a fresh election. b. The Officer in charge of Polling Booth No.183 had not been examined and there was thus no evidence to establish the swapping of the controlling unit of the EVM.
c. The controlling unit was not secured by the Election Petitioner before the Election Tribunal 10 and in the absence of the controlling unit, the finding of the Election Tribunal regarding swapping of the EVM could not have been examined, let alone record a finding in that regard.
d. The evidence of the Returning Officer (P.W.2) was merely suggestive and was not conclusive and he had merely rendered his opinion regarding swapping of the controlling unit and furthermore, since he had no personal knowledge of the matter, his evidence would not be adequate to record a finding regarding swapping of the controlling unit of the EVM. e. Neither the Election Petitioner, nor any of her agents had raised any objections regarding swapping of controlling unit, either during the conduct of the election or at the time of counting and therefore, the Election Petitioner was estopped from challenging the election. 11
16. Sri. Nishanth A.V., learned Counsel appearing for the Election Petitioner, contended that:
a. The Election Tribunal, on consideration of Form No.28B pertaining to Melya Taluk Panchayath (Ex.P.2) and Form No.28B pertaining to Nagargere Zilla Panchayath (Ex.P.3), which clearly indicated that the controlling units of the EVMs had been swapped, had come to the conclusion that there was improper acceptance of votes in favour of the Returned Candidate and it had on that basis rightly come to the conclusion that the election had been materially affected, which had, in turn, necessitated the holding of a fresh election. b. The evidence of the Returning Officer was clear and cogent insofar as it related to swapping of controlling units of the EVMs and since this was on the basis of Form 12 No.28B, which was an indisputable public record, the Election Tribunal was justified in setting aside of the elections and ordering for a fresh election.
c. Having regard to the fact that the margin of victory was only 218 votes and keeping in mind that the CPI (M) candidate, who had secured votes in small numbers throughout the constituency, had however secured 766 votes in Polling Station No.183, which, by itself, proved that there had been swapping of the EVMs.
d. Had the controlling unit of the EVM not been swapped, the Election Petitioner would have secured 766 votes as against 24 votes that had been recorded against her name and viewed in the background of the fact that the margin of victory of the Returned Candidate was a slim 218 votes, 13 it was clear that the elections had been materially affected.
e. The Election Petitioner, in law, could raise all available grounds to challenge an election even if she or her agent had not raised any objections regarding the conduct of the elections by filing an Election Petition and her right to challenge the elections were not dependent on the objections raised during the process of the elections.
17. We have heard learned counsel for the parties at length and also perused the material on record.
18. In order to appreciate the controversy on hand, it would be useful to refer to the relevant provisions relating to conduct of election through the EVMs under the Karnataka Gram Swaraj and Panchayath Raj Act and the Rules framed therein.
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19. An election to a Panchayath is required to be conducted by the Karnataka Panchayath Raj (Conduct of Election) Rules, 1993 (hereinafter referred to as 'the Rules'). Chapter III of the said Rules relates to Electronic Voting Machines.
20. Rule 85 (2) of the Rules states that every EVM would comprise of two units, a Control Unit and a Balloting Unit. On the Balloting Unit, the names of the candidates are required to be arranged in the same order as they appear in the list of contesting candidates.
21. The Returning Officer is required to fix the labels containing the names of the candidates in the Balloting unit, secure the unit with his seal and that of the seal of the contesting candidates, if they so desire. He is also required to set the number of contesting candidates and close the candidate set section in the Control unit and secure it with his seal and of the seal of the contesting candidates, if they so desire. 15
22. Rule 89 of the Rules requires that the Control Unit and the Ballot Unit should bear a label marked with the serial number, if any, and the name of the constituency. The Units are also required to have a serial number and also the date of the poll affixed on them.
23. Thus, statutorily, the Control Unit and the Ballot Unit are required to have a serial number and the name of the polling station affixed on them.
24. The said rule also requires that immediately before the commencement of the elections, the Presiding Officer should demonstrate to the polling agents present that there are no votes recorded in the voting machine and the unit is thereafter required to be sealed in their presence in the manner prescribed therein.
25. The voting procedure prescribed under Rule 96 (2) of the Rules is that on being permitted to vote, the elector should approach the Presiding Officer, who, in turn, is required to activate the Balloting Unit by 16 pressing the appropriate button to enable the recording of the vote of the elector.
26. The elector is thereafter required to proceed to the voting compartment and record his vote by pressing the button on the balloting unit against the name and symbol of the candidate to whom he/she intends to vote.
27. Thus, in essence, the control unit is first activated by the Presiding Officer and the elector is then required to record his/her vote by pressing the button on the balloting unit.
28. After the close of the poll, as per Rule 103 of the Rules, the Presiding Officer is required to prepare an account of votes recorded in Form.28-B (EVM) and enclose it in a separate cover with the words "Account of Votes recorded". He is also thereafter required to furnish to every polling agent present a true copy of the entries made in Form 28-B and obtain his acknowledgment. 17
29. The Presiding Officer is also required, after closing of the poll, as per Rule 104 of the Rules to close the control unit to ensure that no further votes are recorded and thereafter detach the Balloting Unit from the Control Unit. Thereafter, both the Control and Ballot Unit are required to be sealed and secured separately by him and he should also permit the polling agents to affix their seals, if they so desire.
30. The Presiding Officer is also required to seal other packets as stated in Rule 105 of the Rules and thereafter deliver to the Returning Officer, the voting machine, the account of votes recorded in Form 28-B (EVM) and the other sealed packets.
31. Thus, as could be seen from the above narration, an elaborate procedure is prescribed for the manner in which the EVMs are to be operated and this is principally to ensure that there is a proper recording of votes by the electors.
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32. A crucial aspect to be noticed here is that statutorily both the Control Unit and the Balloting Unit are to bear a serial number and after the close of the poll the Presiding Officer is required to prepare an account of the votes recorded in Form 28-B.
33. Form 28-B of the Rules is as follows:
FORM 28-B(EVM) (See Rule 103 and 106) PART 1 ACCOUNT OF VOTES RECORDED Election to the member of ............ Grama/Taluk/Zilla Panchayat from ........................ Constituency No. and Name of Polling Station............ Identification No. of Voting Control Unit............ Identification No. of Voting Ballot Unit.................. Machine used at the Polling Station Balloting Unit.-
1. Total No. of electors assigned to the Polling Station
2. Total No. of voters as entered in the Register for Voters (Form 38)
3. No. of voters deciding not to record votes under Rule
99.
4. No. of votes not allowed to vote under Rule 97.
5. Total No. of votes recorded as per the voting machine.19
6. Whether the total No. of votes as shown against Item 5 tallies with the Total No. of voters as shown against Item 2 minus Nos. of voters deciding not to record votes as against Item 3 minus No. of voters as against 4(2-3-4) or any discrepancy noticed.
7. No. of voters to whom tendered ballot papers were issued under Rule 100.
8. No. of tendered ballot papers.-
(a)Received for use
(b) Issue to electors
(c) Not used and returned
9. Account of paper seals From To Signature of polling agents
1. Sl.No's of paper seals supplied From To 1. ..................
2. Total numbers supplied 2. ..................
3. Number of paper seals used 3. ...................
4. Number of unused paper seals Returned to Returning Officer 4. ..................
5. Serial number of damaged Paper seal if any 5. ...................
Date............. Signature of the Presiding Officer Place............. Polling Station No............................. 20
PART II RESULT OF COUNTING Sl.No. Name of Candidate No. of votes ecorded
1.
2.
3.
4.
5.
6. Total Whether the total numbers of votes shown above tallies with the total number of votes shown against Item 5 of Part I or any discrepancy noticed between the two totals.
Signature of the Counting Supervisor Place.............
Date.............
Name of candidate/election agent/counting agent Full Signature
1.
2.
3.
4.
5.
6.
7.
8. Place.............
Date.............. Signature of the returning officer.] 21
34. As could be seen from the above format, Form No.28-B is essentially an account of the votes recorded by the EVM. This form is required to contain the Number and Name of the Polling Station and more importantly the Identification Number of the Control Unit and the Ballot Unit, apart from the total number of voters assigned, number of voters allowed to vote, etc. This is because the said Form is designed to capture the serial number of the actual Control Unit and Ballot Unit (which together comprise the EVM) that are used for the purpose of recording votes in the polling booth to which the EVM is assigned.
35. The Election Petitioner produced Ex.P.1 which was the Zilla Panchayath Control Unit and Ballot Unit List and Ex.P.2, which was the Taluk Panchayath Control Unit and Ballot Unit List. These Lists contained the Polling Station Number, Name of the Polling Station (in English and in Kannada) and the number of the Control Unit and Ballot Unit assigned to the respective Polling Stations. 22 This List is admitted by the Returning Officer in his deposition and there is no challenge to this List even by the Returned Candidate. It is, therefore, clear that the record containing the details of the Control Unit and Ballot Unit in respect of Polling Booth No.183 (Hunesanahalli) as recorded in Ex.P.1 and Ex.P.2 is beyond dispute.
36. The list in respect of the elections to the Zilla Panchayath - Ex.P.1 indicates that the Control Unit of Hunasenahalli (Polling Booth No.183) bore identification number "49837-14" and the Ballot Unit bore identification number "92352-82".
37. The list in respect of the elections to the Taluk Panchayath - Ex.P.2 indicates that the Control Unit of Hunasenahalli (Polling Booth No.183) bore identification number "80614-38" and the Ballot Unit bore identification number "87984-33".
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38. Thus, after the closing of the Polls, the above mentioned units were required to be sealed and delivered to the Returning Officer for the purpose of counting votes in respect of the respective Zilla Panchayath and Taluka Panchayath.
39. However, a perusal of Form No.28-B (Ex.P.3) pertaining to the Taluk Panchayath, i.e., the record of the account of votes made by the Presiding Officer of the Polling Booth shows that, the Control Unit bearing No. "49837", which was the Control Unit pertaining to the Zilla Panchayath, was the Unit that was actually sent by the Presiding Officer to the Returning Officer for counting.
40. Similarly, a perusal of Form No.28-B (Ex.P.4) pertaining to the Zilla Panchayath, i.e., the record of the account of votes made by the Presiding Officer of the Polling Booth shows that, the Control Unit bearing No. "49837" which was the Control Unit pertaining to the 24 Taluk Panchayath, was the unit that was actually sent by the Presiding Officer to the Returning Officer for counting.
41. It is, therefore, manifestly clear that the Control Units of the Taluk Panchayath and Zilla Panchayath had been exchanged or to put it differently they were swapped. This would, therefore, lead to the inference that the votes recorded for the Taluk Panchayath were counted as votes recorded for the candidates who had contested for the elections to the Zilla Panchayath and vice versa. This would, in turn, clearly lead to the inescapable conclusion that the votes cast for a candidate contesting the Zilla Panchayath were accounted in favour of the Candidate who had contested for the Taluk Panchayath and the votes cast for a candidate contesting the Taluk Panchayath were accounted in favour of the candidates who had contested the election for the Zilla Panchayath. It therefore follows 25 that there was an improper reception of votes in favour of the Returned Candidate.
42. In other words, the votes recorded in favour of the candidates, including the Returned Candidate in polling booth No.183, was an improper reception of votes, in the sense, that the votes recorded by the EVM was not a vote which an elector intended to cast in their favor, but it was actually a vote that the elector had in fact intended to cast in respect of candidates who had contested for the Taluk Panchayath. Indisputably, an improper reception of votes by a Returned Candidate is a ground to set aside the election of a Returned Candidate as provided under Section 19 (d) (iii) of the Act. As a necessary consequence, since in the instant case, there was improper reception of votes in favour of the Returned Candidate, the election of the Returned Candidate was liable to be set aside.
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43. However, under Section 19 (d) of the Act, it would also have to be considered whether the said improper reception of the votes in favour of the Returned Candidate did result in materially affecting the result of the election.
44. According to us, the above mentioned improper reception of votes did indeed materially affect the result of the elections in the instant case and that is clear from the following indisputable facts.
45. It is an admitted fact that the Returned Candidate secured in all 11,714 votes, while the Election Petitioner secured 11,496 votes and the difference between these two sums i.e., 218 votes, was the margin of victory.
46. It is also not in dispute that in Polling Booth No.183, the Returned Candidate secured 768 votes, while the Election Petitioner secured 24 votes. If these 768 votes received by the Returned candidate were to be 27 eschewed from the total number of votes secured by her, then she would have garnered a total number of 10,946 votes. Correspondingly, if the 24 votes that the Election Petitioner had secured in Polling Booth No.183 was eschewed from the total number of votes secured by her, then, she would have secured 11,472 votes.
47. In other words, if the votes recorded in Polling Booth No. 183 was disregarded completely for both the Election Petitioner and the Returned Candidate, then, the Returned Candidate would not have won the elections since she would have secured only 10,946 votes, whereas, the Election Petitioner would have won the elections since she would have secured a total of 11,472 votes which would be 526 votes more than the Returned Candidate. This, thus, clearly and conclusively proves that the results of the elections were materially affected by the improper reception of votes on behalf of the Returned Candidate and the Election Tribunal was 28 therefore perfectly justified in setting aside the election and ordering for a fresh election.
48. The fact that the control unit pertaining to the Zilla Panchayath elections was exchanged with the control unit of the Taluk Panchayath, was proved by the production of Exs.P.1 and P.2, (the lists indicating the serial numbers of the Control Unit and Ballot Unit) and by the production of Exs.P.3 and P.4 (Form No 28-B in respect of the Taluka Panchayath and Zilla Panchayath) and this was also acknowledged to be true by the Returning Officer in the course of his deposition.
49. In our view, therefore, the Election Tribunal was perfectly justified in setting aside the election and ordering for a fresh election.
50. The learned Single Judge was also right in coming to the conclusion that there was no infirmity in the finding recorded by the Election Tribunal and that the 29 reasoning and also the conclusion of the Election Tribunal was just and proper.
51. The contention advanced by the learned Senior Counsel that non-examination of the Returning Officer was fatal to the case of the Election Petitioner is unsustainable in view of the observation of the Election Tribunal in paragraph 12 of its judgment that the Returning Officer was no more when the trial of the Election Petition took place.
52. The further submission that non-securing of the EVM had also vitiated the judgment of the Election Tribunal cannot also be accepted since the documentary evidence i.e., Exs.P.1, P.2, P.3 and P.4 clearly established that the Control Unit of the EVMs had been swapped. The swapping of the Control Unit being an incontrovertible fact, which was also admitted by the Returning Officer during his deposition, the securing of the EVMs for inspection would really serve no purpose 30 and would in no way alter the fact that the EVMs had indeed been swapped.
53. We, therefore, find absolutely no reason to entertain this appeal and we accordingly dismiss the same.
Sd/-
JUDGE Sd/-
JUDGE PKS