Karnataka High Court
Smt. Kamalamma W/O Kashinath vs The State Of Karnataka& Ors on 1 July, 2017
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 1ST DAY OF JULY, 2017
BEFORE
THE HON'BLE MR.JUSTICE B. A. PATIL
MFA NO.201076/2017(KMA)
C/W
MFA NO.200249/2017(MPA)
IN MFA NO.201076/2017
Between:
Smt.Kamalamma
W/o Kashinath
Age : 40 years
Occ : Househld
R/o Khaja Abdul Fayaz
Colony, H.No.10/3/109/16,
Abul Fayaz Dargah,
Bidar - 585 401.
... Appellant
(By Sri. B.K. Hiremath, Advocate )
And:
1. The State of Karnataka
through its Principal Secretary
to Government,
M.S. Building,
Ambedkar Veedhi,
Vidhana Soudha,
Bangalore - 560 001.
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2. The State Election commission
Represented by its Commissioner
Kanningham Road,
Bangalore - 560 002.
3. The Deputy Commissioner
& Election Officer
Bidar - 585 401.
4. The Election Returning Officer
C.M.C. Bidar, Ward No.33
Bidar, Dist. Bidar - 585 401.
5. The Tahasildar Bidar
Tq. & Dist.Bidar - 585 401.
6. Smt.Muttamma W/o Baburao
Age : 45 years
Occ : Household
R/o Chidri, Bidar,
Tq. & Dist.Bidar - 585 403.
7. Smt. M. Saraswati W/o Manjunath
Age : 30 Years, Occ : Agriculture
R/o Pakkalwada, Bidar
Tq. & Dist.Bidar - 585 403.
8. Smt.Parvatibai W/o Ramchander
Age : 40 Years, Occ : Household
R/o Hugeri, Tq.Bidar - 585 401.
... Respondents
(By Smt.Archana P. Tiwari, AGA for R1 to R5; )
This Miscellaneous First Appeal is filed under Section
27 of Karnataka Municipalities Act, praying to call for
records and set aside the judgment order dated 5.1.2017
passed in Election Case No.6/2013 by Prl. Civil Judge and
CJM and Election Tribunal at Bidar as per Annexure-K etc.,
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IN MFA NO.200249/2017
Between:
Smt.Muttamma
W/o Baburao,
Aged about 49 years
R/o Chidri village,
Tq. & Dist.Bidar - 585 401.
... Appellant
(By Sri. Ravi B. Patil, Advocate )
And:
1. The State of Karnataka
Represented by returning
Officer, Ward No.33 of CMC Bidar
Dist.Bidar - 585 401.
2. The Tahasildar Bidar
Tq. & Dist.Bidar - 585 401.
3. Smt.Kamalamma
W/o Kashinath,
Aged about 44 years
Occ : household
R/o Karamungi
Tq.Narayankhed,
Dist.Medak (AP)
Now R/o H.No.10-3-109/18,
Near Abdul Faiz Darga,
Bidar - 585 403.
4. Smt.Parvati bai
W/o Ramchandrer,
Aged about 44 years
Occ : Household
R/o Hugeri, Bidar
Tq. & Dist.Bidar - 585 401.
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5. Smt. M. Saraswati
W/o Manjunath
Aged about 34 years
Occ : Agriculture
R/o Pakkalwada,
Tq. & Dist.Bidar - 585 401.
... Respondents
(By Smt.Archana P. Tiwari, AGA for R1 & R2;
Sri. B.K. Hiremath, Adv. for R-3;
R4 served.
Notice to R5 dispensed with vide
Order dated : 28.6.2017 ).
This Miscellaneous First Appeal is filed under Section
27 of Karnataka Municipalities Act, praying to call for
records and modify the judgment and award dated :
5.1.2017 passed by Principal Senior Civil Judge & CJM and
Election Tribunal, Bidar, thereby declaring the
Appellant/petitioner as duly elected candidate for Ward
No.33 of CMC Bidar and etc.,
The MFA No.201076/2017 is coming on for Orders
and MFA No.200249/2017 is coming on for Hearing
Interlocutory application this day, the Court delivered the
following:-
JUDGMENT
Being aggrieved by the Judgment and Order dated : 05.01.2017 passed in Election Case No.6/2013, by learned Principal Senior Civil Judge & Election Tribunal, Bidar ( hereinafter referred to as "Tribunal" ), 5 M.F.A.No.201076/2017 has been filed by the appellant
- respondent no.3 and M.F.A.No.200249/2017 is preferred by appellant - petitioner no.1.
2. I have heard the arguments of the learned counsels for the petitioners, respondents and also Additional Government Pleader who is appearing on behalf of respondents no.1 to 5 in MFA No.201076/2015 and respondents no.1 and 2 in MFA No.200249/2017.
For the purpose of convenience of reference, hereinafter parties to the proceedings will be referred as per their status before the tribunal.
3. Brief facts of the case are that, petitioners no.1 and 2 are the residents of Chidri, Pakkalwada Bidar, within the limits of City Municipal Council, Bidar. The 1st respondent conducted election to CMC Bidar on 7.3.2013. In the said election, petitioners and respondent nos.3 and 4 contested from Ward - 33. The 6 3rd respondent is declared as returned candidate in the reserved category for Schedule Tribe Women Candidate. Petitioner No.1 contested the election by representing J.D.S., party, petitioner no.2 contested from B.S.R. party, 3rd respondent contested from Indian Congress Party and 4th respondent through Karnataka Janata Party.
4. It is the contention of the petitioners that 3rd respondent is permanent resident of Karamungi village in Narayankhed Taluk of Medak District (AP), wherein her name appears in the electoral roll, ration card and she is getting ration regularly and as she is obtaining the said benefits, she is not entitled to retain her name in the electoral roll of Ward - 33 of CMC Bidar. He further contend that, she belongs to backward class and she secured false certificate as belonging to ST from 2nd respondent by corrupt practice and contested from Ward - 33 which was reserved for 'ST women' and she is 7 declared as returned candidate, thereby become responsible for un-natural results in the election. Acceptance of nomination of 3rd respondent is illegal and contrary to law. Therefore, the petitioners pray for declaration that the election of 3rd respondent as returned candidate is null and void and prayed to allow the petition.
5. In pursuance of the notice, respondents no.1 to 4 appeared before the tribunal. Respondent no.3 filed the counter statement and the other respondents have not filed the counter statement, by denying the averments made in the petition. She contended that, the petition is not maintainable based on the grounds urged. However, she contended that she served the public in the locality and is a popular leader. She belongs to Gonda community which is the Schedule Tribe of the Schedule maintained by the Government of Karnataka. She has contested the previous election 8 from Ward - 33 and she was elected and at that time no one questioned the same as her nomination was accepted without objection. Now the grounds urged are all created in collusion with each other and prayed to dismiss the petition.
6. On the basis of the pleadings, the tribunal framed the following issues :-
1) Whether the petitioners prove that 3rd respondent is a permanent resident of Karamungi, Narayankhed Tq. Medak District of A.P., ?
2) Whether the petitioners prove that at a relevant point of time the 3rd respondent had her name in two electoral rolls and same amounts to corrupt practice ?
3) Whether the petitioner no.1 proves that 3rd respondent belongs to back ward class ?
4) Whether the 3rd respondent proves that she belongs to Gonda Community and same is declared as Schedule Tribe in the State of Karnataka ?9
5) Whether petitioner no.1 is entitled for the relief sought ?
6) What Order ?
7. In order to prove the case of the petitioner, petitioner no.1 got examined herself as P.W.1 and also examined 2 persons as P.Ws.2 and 3 and got marked fifteen documents as per Ex.P-1 to Ex.P-15 and the respondents though contested the petition, they have not led any evidence nor produced any documents.
8. After considering the material on record, the tribunal answered the issues as follows :-
Point No.1 :- In the Affirmative.
Point No.2 :- In the Negative.
Point No.3 :- In the Affirmative.
Point No.4 :- In the Negative.
Point No.5 :- In the Affirmative.
Point No.6 :- As per final order.
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9. Now being aggrieved by the said judgment, the respondent no.3 and petitioner no.1 are before this Court.
10. Learned counsel for the appellant in MFA No.200249/2017 vehemently argued and contend that though the tribunal passed the impugned order in favour of the appellant --petitioner no.1 but the tribunal has not considered the aspect of Section 25 ( C ) of the Karnataka Municipal Act 1962 ( hereinafter it will be referred to as the "Act" ). He would also further contend that as per Section 25 ( C ) of the Act immediately after declaring the election of any returned candidate to be void, then the Court is duty bond to declare the next candidate as duly elected. In this context, he contends that the Court below ought to have declared the appellant - petitioner no.1 as the returned candidate and ought to have directed to proceed in accordance with Section 25 of the Act. He would further contend that though he filed an application for amendment of 11 the pleadings to that effect to seek the additional or alternative relief for seeking an additional prayer of declaring the candidate as a returned candidate immediately after holding that the said election is null and void. He would also further contend that, though the said application came to be dismissed and even though it has been challenged under Article 226 of the Constitution in a writ proceedings, but, in view of provisions under Section 105 of the Code of Civil Procedure, he can canvas the arguments on that ground. He would also further contend that, impugned order in this behalf is contrary to the law, facts and circumstances of the case and as such he prayed to modify the judgment and award dated : 05.01.2017. On these grounds, he prayed for allowing the said petition.
11. Per contra, learned counsel appearing on behalf of the appellant - respondent no.3 in MFA No.201076/2017 would contend that, the impugned 12 order is one sided and it is erroneous. The trial Court has not considered the fact that, the appellant -
respondent no.3 was earlier elected candidate and she has completed her terms in the previous election. He further contend that, she is a permanent resident of Bidar at Ward - 33 and she belongs to S.T. Gonda community. He would further contend that documents produced at Ex.P-1 to 4 clearly indicates that, the appellant - respondent no.3 belongs to Kuruba community and Kuruba community is nothing but it is ST Gonda Community and as such the order of the Tribunal is not sustainable in law. He would also further contend that, since from ten years the appellant is municipal councilor and same has not been challenged so far. Now at the instigation of others, the petitioners have filed the petition and have obtained the impugned order which is not sustainable in law. He would also further contend that earlier to the marriage, she lived at Karamungi village in Telangana State and it 13 is a border village which is situated at 6-kilometers away from Bidar and got her education at Bidar and she served as a Municipal Councilor in Bidar and as such she is resident of Bidar. The said fact ought to have been considered and appreciated by the trial Court. Non consideration of the said fact has resulted into unfair order by the tribunal. He would also further contend that, though the caste verification committee and scrutinized the caste certificate and voter list and permanent address and permitted the respondent No.3 in earlier election and present election. They have not taken into account by the lower Court. All these things are in favour of the respondent no.3 and those factors are not properly considered and appreciated by the trial Court. He would further contend that Annexure-G which has been produced along with the appeal memo, it clearly indicates that she has been contested for the election of 2007 from Ward - 33. He would further contend that the trial Court has not given sufficient 14 opportunity and as such matter requires to be remitted back for fresh disposal in accordance with law. Alternatively, he further contend that, since the election notification has been issued on 14.06.2017 and as such the said notification has to be set aside by this Court. On these grounds, he prayed to allow the petition.
12. I have heard the learned counsels for the petitioners and learned counsels appearing on behalf of the respondents. I have carefully and cautiously gone through the submissions made by them and also the records and the provisions of law which has been brought to my notice.
13. Though the learned counsel for the appellant in MFA No.201076/2017 has prayed to set aside the notification dated : 14.6.2017 issued by 2nd respondent for bye-election of Ward - 33 of Bidar since the said prayer is not within the purview of the appeal. It is different cause of action and the other alternative 15 remedies are available to challenge the said notification. When an appeal has been preferred by the appellants under Section 27 of the Act, then the only question which has to be considered by this Court is whether the impugned order passed by the tribunal under Section 25 of the Act is in accordance with law or not ? When scope of Section 27 of the Act is taken into consideration, then the prayer which has been prayed at Col. No. ( C ), it does not comes within the purview of the Appellate provisions under the said Act and as such same is liable to be rejected and accordingly it is rejected.
14. The next contention which has been taken up by the learned counsel for the appellant is that, the appellant - respondent no.3 belongs to ST Gonda Community, even though the records show that she belongs to Kuruba community, it is nothing but it is a ST Gonda community the same has not been considered 16 by Tribunal. As could be seen from the order of the trial Tribunal and the records, Ward - 33 of CMC Bidar is admittedly reserved for ST women. It is the specific contention of the petitioners that the respondent no.3 belongs to Kuruba community and she has contested the election for Ward - 33 as a Gonda caste, which is a schedule tribe as per the schedule maintained by the Government of Karnataka and it is also the case of the petitioners that when once the returned candidate does not belong to the said community and does not belongs to the Schedule Tribe then under such circumstances said election is liable to be set-aside. In order to substantiate the said fact they have produced Ex.P-12, the proceedings of the Tahasildar, wherein, Tahasildar conducted the enquiry and cancelled the certificate of caste issued in favour of respondent no.3. Earlier a certificate has been issued to respondent no.3 to the effect that she belongs to S.T. community and subsequently a writ petition came to be filed before this 17 Court and as per the direction of this Court, Tahasildar held the proceedings and in the said proceedings, respondent no.3 admitted that she belongs to Kuruba caste and after consideration of the said fact, the said caste certificate has been cancelled as per Ex.P-12. Though the learned counsel for the appellant would contend that Tahasildar who cancelled the caste certificate is not having any authority and it ought to have been referred to the Caste Verification Committee which is constituted in the District and the said Order is not sustainable in law. He would also further contend that Ex.P-1 to 4 clearly indicates that the son of the petitioner - respondent no.3 belongs to Kuruba community, it is nothing but it is a S.T. Gonda community. Though the learned counsel has contended that the Tahasildar is not having any competence to cancel the caste certificate but the petitioner - respondent no.3 has not challenged the said order before any Court or Tribunal and said fact remained 18 that the said caste certificate which has been issued in favour of respondent no.3 has been cancelled and thereafter she will not belonging to S.T. community.
15. Be that as it may, though the learned counsel for the appellant - respondent no.3 contend that she belongs to Kuruba community and the said community comes under the S.T. category as Gonda community but in order to substantiate the said fact, no documents have been produced before the Tribunal and no evidence has been led in order to prove the said fact by respondent no.3. In the absence of any material the Tribunal has rightly come to the conclusion that, the respondent no.3 does not belongs to S.T. community in view of cancellation of the caste certificate. When said Ward - 33 is reserved for the S.T. women candidate, then if she does not belongs to the said community, under such circumstances, she cannot hold the post which has been reserved for S.T. women candidate. 19 Under such circumstances, impugned order does not call for any interference and there is no perversity or malafides while passing the impugned order. Under the circumstances, the contentions raised by the learned counsel appearing in this behalf does not hold any water and the same is rejected.
16. Alternatively, the learned counsel for the appellant - respondent contend that, the matter requires to be remitted back to the tribunal for fresh disposal in accordance with law by giving one more opportunity to the petitioner - respondent no.3, but, under what circumstances the said liberty which has been given has been deprived is not forthcoming either in the pleading nor during the course of argument. When once respondent no.3 has appeared before the Court and has filed the counter to the petition filed by the petitioners and has not stepped into the witness box to substantiate or disprove the proof made by the 20 petitioner, then under such circumstances, question of remitting back the proceedings to the trial Court does not arise. When once the given opportunity has not been properly utilized and it is because of the laxity and dereliction of the appellant - respondent no.3 matter cannot be remanded. Under the said circumstances, said arguments are not acceptable under the law and as such on perusal of the records and other aspects though several grounds have been urged, I feel that the main ground is that the Ward - 33 is reserved for S.T. candidate and when once that issue is answered in the negative by the tribunal, then under such circumstances, the other issues which have been raised in respect of the residence of the respondent no.3 at Bidar or Karamungi or the name appearing in two electoral rolls and other things they are not going to help in any manner to decide the case in issue. As such, whatever the findings which have been given by the tribunal appears to be just and proper and a detailed 21 discussion in this appeal is not necessary for this Court, as such, the appeal preferred by petitioner - respondent no.3 is dismissed.
17. Insofar as appeal in MFA No.200249/2017 is concerned, it is the contention of the learned counsel appearing for the appellant that the impugned order is not sustainable in law in view of Section 25 ( C ) of the Act. For the purpose of brevity, I want to quite Section 25 ( C ) of the Act which reads as under :-
25. Decision of the Election Tribunal - (1) At the conclusion of the trial of an election petition, the Election Tribunal shall make an order, -
(a) persuade any person to give his vote at an election; or
(b) declaring the election of all or any of the returned candidates to be void; or
(c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected.22
(2) If any person who has filed an election petition has in addition to calling in question the election of the returned candidate, claimed declaration that he himself or any other candidate has been duly elected and the Election Tribunal is of opinion,-
(a) that in fact the petitioner or such other candidate received a majority of the valid votes, or
(b) that but for the votes obtained by the returned candidate by corrupt or illegal practices the petitioner or such other candidate would have obtained a majority of the valid votes, the Tribunal shall, after declaring the election of the returned candidate to be void, declare the petitioner or such other candidate, as the case may be, to have been duly elected.
18. By going through the above provisions of law, while passing an order by the tribunal, as per Sub 23 Clause (b) of the Act, if it declares the election of the returned candidates as void, Tribunal has to declare petitioner or any other candidate as duly elected. But, as could be seen from the records, there is no pleading to the said contention and no alternative prayer as contemplated under Section 25 ( C ) of the Act. As could be seen from Section 24 of the Act, the procedure provided in the Code of Civil Procedure, 1908, in regard to suit shall be followed by the Election Tribunal as far as it can be made applicable in the trial and disposal of the election petition. When the Civil Procedure Code is applicable, then, under such circumstances, specific pleading, prayer and a finding and issue must be there in this petition. But, by going through the records, no such pleading has been made out by the appellants - petitioners in this petition. Though the learned counsel for the petitioner contends that, he filed application under Order 6 Rule 17 CPC, the same came to be dismissed by the tribunal and against the said rejection 24 order, he preferred writ petition under Article 226 of Constitution of India and the said writ petition was also dismissed. But, even in spite of that, some other alternative remedies were available to the petitioner - appellant to challenge the said order passed under Order 6 Rule 17 CPC. When that has not been challenged or has not preferred alternative appeal which is available or he would have filed review before the Tribunal, if he has not done and when the said fact and issues have reached the finality, under such circumstances, said petition is without there being any pleading and as such no specific issues have been framed by the Tribunal and as such provisions of Section 25 ( C ) of the Act has not been considered and appropriate while passing the impugned order.
19. Be that as it may, learned counsel for the petitioner - appellant has contend that without there being any pleading and without there being any issue 25 he can urge those points even after dismissal of the application under Section 105 of CPC where no appeal shall lie from any orders for exercise of the appellate jurisdiction where a decree from any order defective or illegal order, effecting the decision of the case may be sought as a ground to objection in the memorandum of appeal. So far as that aspect of the law is considered, this Court is not having second thought but there being no pleading before the Court without pleading and proof the contentions cannot be taken into consideration.
20. Be that as it may, the records also clearly goes to show that, notification has been issued on 12.06.2017 for calendar of events to election to the Ward No.33 of Bidar at Sl.No.8. As per the calendar of events mentioned therein, voting is fixed on tomorrow i.e. on 02.07.2017 from 07.00 a.m. to 05.00 p.m., In that light, I feel it is not just and proper to pass order under Section 25 of the Act. Leave apart this, in the 26 present petition, challenge is to the election for the year 2013. The said period is also going to be completed within a short period. Any how, the respondent no.1 has already commenced the election proceedings by issuance of the notification and calendar of events have been issued as stated supra. Then under the circumstances, I feel now passing an order of election or declaring the returned candidate is going to hamper the election proceedings and prejudice both the parties. By taking into consideration, it is not just and proper to invoke the provisions of Section 25 of the Act and declare the appellant - petitioner as the returned candidate to Ward No.33 of Bidar CMC for the reasons stated above. Though the learned counsel for appellant prayed to modify the order to that extent, for the reasons stated above it cannot be given. Leave apart this, if he wants to seek modification of the Judgment he as to file a review petition before the Tribunal and can get it modified. In that context the said contention 27 cannot be considered and accepted. For the reasons discussed above, I pass the following :-
ORDER Hence, M.F.A. No.201076/2017 and M.F.A.No.200249/2017 stand dismissed.
No order as to cost.
Sd/-
JUDGE SGS