Karnataka High Court
Dr. Kanthi Rajashekher Kidiyappa vs P.H. Poojar And Others on 31 March, 2000
Equivalent citations: 2000(5)KARLJ308
ORDER 1. The 1st respondent, who is a returned candidate, has filed I.A. No. 4 for rejecting the election petition on the ground that the facts disclosed therein does not contain material facts as required to be stated under Section 83(1)(a) of the Representation of the People Act, 1951 (in short the 'Act'). 2. The petitioner and the three respondents had contested the Karnataka Legislative Assembly Election from the 213 Bagalkot Assembly Constituency which was held on 5-9-1999 and the counting whereof took place on 6th and 7th of October, 1999. On 7-10-1999, the 1st respondent herein was declared as duly elected having secured 138 votes more than the petitioner. 3. The present election petition has been filed inter alia with the prayer that the election of the 1st respondent as declared in Form No. 21-C, dated 7-10-1999 (Annexure-A) be declared as void and after recounting the petitioner be declared as duly elected. 4. In the election petition, which has been duly verified by the petitioner and also supported by affidavit, it has been stated that- (i) after opening of the ballot-boxes booth-wise, the number of ballot-papers were recorded in Form No. 20 instead of recording in Form No. 16 as required under Rule 55-B of the Conduct of Elections Rules, 1961 fin short the 'Rules'); (ii) the margin of votes between the petitioner and the 1st respondent (Returned Candidate) is only 138; (iii) the total number of ballot-papers voted in Hall No. 1 was 45,477 but the actual votes counted was 45,459 resulting in missing of 18 votes without any explanation. Similarly, in Counting Hall No. 2, the total number of votes cast were found to be 42,935 but the actual votes counted was 42,894, resulting missing of 41 votes. Thus, in all 59 votes were found missing without any explanation; (iv) the Returning Officer had rejected number of ballot papers, which could have been counted in favour of the petitioner, without providing any opportunity of inspection of the said ballot papers to the counting agents of the petitioner; and (v) as is evident from the abstract of counting of votes (Annexure-B) prepared by the Returning Officer, in total 3,872 number of ballot-papers had been rejected, as invalid. 5. The question to be answered is whether the above facts as stated in the pleadings of the petitioner can be held to be material facts for maintaining the same or the election petition is to be dismissed at the threshold itself for want of any cause of action on the ground that the petitioner has failed to disclose the material facts. 6. Rule 56 of the Rules inter alia relates to rejection of ballot-paper. Sub-rule (2) of the said Rules sets out the grounds or situations under which the Returning Officer has to reject the ballot-papers. But before rejecting the ballot-papers the Returning Officer has to comply with the requirements contained in sub-rule (3) of the said Rules which clearly stipulates that.- "Rule 56. Counting of votes.- (1) XXX XXX XXX XXX. (3) Before rejecting any ballot-paper under sub-rule (2), the Returning Officer shall allow each counting agent present a reasonable opportunity to inspect the ballot-paper but shall not allow him to handle it or any other ballot-paper". 7. Mr. Shantha Raju, learned Senior Counsel appearing for the 1st respondent, in support of preliminary objection regarding maintainability of the present election petition, has relied on the judgments of the Supreme Court in the cases of Azhar Hussain v Rajiv Gandhi (para 8), Jitendra Bahadur Singh v Krishna Behari and Others (paras 7 and 8), Satyanarain Dudhani v Uday Kumar Singh and Others, Udhav Singh v Madhav Rao Scindia, Samant N. Balakrishna v George Fernandez and Others (para 29). 8. On the other hand, Mr. Eshwarappa, learned Senior Counsel appearing for the petitioner, has relied on the two recent judgments of the Supreme Court in the cases of Ashwani Kumar Sharma v Yaduvansh Singh and Others and D. Ramachandran v R.V. Janakiraman. 9. No doubt, the judgments relied on by the 1st respondent very clearly lays down that the election petition can be maintained only if it contains the statement of material facts in support of the reliefs claimed. It has also been elaborated as to what the material facts would mean and should be. But those are the cases wherein the question of ascertaining as to whether the statements made in the election petition amounts to mere allegation or material statement of facts or relates to material particulars, had arisen after the trials were completed. 10. So far as the cases cited by Mr. Eshwarappa are concerned, those are the cases where the Supreme Court had the occasion of dealing with the preliminary objections raised against the maintainability of the election petition itself on the ground that it did not contain the material facts. In D. Ramachandran's case, supra, the three Judges Bench of the Supreme Court has held that.- "We do not consider it necessary to refer in detail to any part of the reasoning in the judgment; instead, we proceed to consider the arguments advanced before us on the basis of the pleadings contained in the election petition. It is well-settled that in all cases of preliminary objection, the test is to see whether any of the reliefs prayed for could be granted to the appellant if the averments made in the petition are proved to be true. For the purpose of considering a preliminary objection, the averments in the petition should be assumed to be true and the Court has to find out whether those averments disclose a cause of action or triable issue as such. The Court cannot probe into the facts on the basis of the controversy raised in the counter". 11. Examining on the basis of the law laid down by the Supreme Court as noticed above, in the present case, I find that if it has to be accepted that 3,872 ballot-papers had been rejected by the Returning Officer without granting any opportunity to the counting agents of the petitioner to inspect the same and particularly when the petitioner has been defeated with the margin of only 138 votes then the elections has to be declared as void under Section 100(d)(iii) and (iv) of the Act. In the said view of the matter, in my opinion, the preliminary objections raised by the 1st respondent cannot be sustained. 12. Accordingly, I.A. No. 4 is rejected. 13. Call on 7-4-2000 for framing of issues and furnishing of list of witnesses and documents, if any, at 10.30 a.m. G.C. Bharuka, J.
Dated 25-3-2000 ORDER IN ELECTION PETITION No. 2 of 1999
1. In the present election petition, the Returning Officer has been impleaded as 4th respondent. I.A. Nos. 2 and 3 have been filed by the 1st and 4th respondents respectively for deletion of the 4th respondent from the array of the parties.
2. It has been submitted on behalf of the respondents that in view of the specific statutory provisions contained in Section 82 of the Representation of the People Act, 1951, only the contested candidates may be impleaded as parties. Section 82 reads thus.-
"82. Parties of the petition.--A petitioner shall join as respondents to this 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 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".
3. Mr. Eshwarappa, learned Counsel appearing for the petitioner, has submitted that since in the present election petition, the allegation of malpractice and various omissions and commissions have been made against the Returning Officer, therefore it is desirable to implead him as proper party keeping in view the provisions of the Order 1, Rule 10 of the CPC.
4. This aspect of law has been specifically dealt with by the Supreme Court in the case of B. Sundara Rami Reddy v Election Commission of India , in paragraph 4 whereof it has been held that.-
"Learned Counsel for the petitioner urged that even if the Election Commission may not be a necessary party, it was a proper party since its orders have been challenged in the election petition. He further urged that since Civil Procedure Code, 1908 is applicable to trial of an election petition the concept of proper party is applicable to the trial of election petition. We find no merit in the contention. Section 87 of the Act lays down that subject to the provisions of the Act and any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. Provisions of the Civil Procedure Code have thus been made applicable to the trial of an election petition to a limited extent as would appear from the expression ''subject to the provisions of this Act".
5. In that view of the matter, in my considered opinion, the Returning Officer could not have been impleaded even as a proper party. So far as making of allegations in the petition against the Returning Officer is concerned, it requires to be adjudicated by the Court on the basis of the evidence brought on record and it will be for the Court to pass appropriate orders regarding conduct of the Returning Officer, if the materials on records so warrants.
6. In the said view of the matter, prayer made in the I.A. Nos. 2 and 3 are allowed. The petitioner is directed to delete the name of 4th respondent from the array of the parties.