Karnataka High Court
N G Puttaswamy vs The Tahsildar And Returning Officer on 16 April, 2008
Equivalent citations: AIR 2008 (NOC) 2304 (KAR.) = 2008 (4) AIR KAR R 497 (DB), 2008 (4) AIR KAR R 497
@ IN THE HIGH coum or KARNATAKA AT BATEI.' *.-.313 .1192. 15% 9;! or -um.-n-u.ua|_ aria. rnuom-.ii'1"i' 1 » A Z THE HOIPBLE MR..ms'r1cE J 7 I-ION'BLI-.'. WRIT APPEAL 1 1*»: G *
AGED Anozrlf 53 YEARS V r._)c.<:.; AGRlCULf1'U.Ri--'.3_'l*~~ * PEKMAN 1::1~:*1.tA1T)i31&~~.s;:ss%%':
IwiAi<G}':NAi:<iAL .%P'£}s*;' L}AvANA<3-a+:1<i::"'1'A1.u1«; %1'[;5AvANAumR.*sLpltsmeici' . .. APPELLANT my s;?1't¢o§ciiEiA;ruNABAsAPPA, SR.ADVO0A'l'E, 1-'on S1-{LG M _CIIANDR«_'-£51.!-'Ew, ADV. 3 ., .. . T} =1':-11:; TAHSLLDAR AND xerrruxennmu OFFICER A(}RlCUL'l'URAL PRODUCER i3(.'IIvi1'v'1i'i"i'ii3 I}A'.'ANAGERE DAVANAGERE DlS'l'RlC'l'
2 THE AGJ:{lCUL'l'URAL PRODUGER MARKETING C-OMMl'l'l'EE ul-
8.) REP BY ITS SECRETARY DAVANAGERE, DAVANAGERE DlS'l"Rl('.}'T' 3 SR1 H K VIRUPAKSI-IAPPA 3,' AGED ABOUT 66 YEARS .
R/0 HEBBAL A DAVANAGERE V DAVAN AGERE DISTRIC-'1'. » H ' - .. _V 4 SR1 H MALLIKARJUNAPPA 3/0 H 0MKARAPPAV.__ -
AGED _ALiQUT 49 YEARS g R/O ANAGODU AT AM) ms'P, DAVANAGERE TAL'UK .-ma m'.m1«;Aa:a~R = D1s*rR1c*1' * 5 -.l H. - .5.
S/O H V ..
v v9 Afiiiifi 3'§H*:f':3A:%s 1 R] 0._A1\:A(3ou AT POST, DAVANAGERE'TAI.L'K' L)_:A.v.1\_r~:;=.s.r..4.E1~:.I;: p1s'i'R1.~L'.'1' . . . RESi-'01'V" 'i:'31'Vi'i'S j my H SANGULLI, AGA FOR R an C.-i¥.P.~%'PIu,. R-2, SR! A.L.PREMAKUM.A.I~3, ..DV.. 9;' _ _ WRl'l' FILED US 4 OF THE KARNATAKA HIGH ACT PRAYING TO SET ASIDE THE ORDER PASSED ' 1N "'!.'V.'-iE'--..\«.l.Il-£"" '3"-'"".!'l(l'l\! Ne.53b'.'.,' 2-U06 l.)A'l'l*.}!.) 2-6,19,! '.-!U'J'.7. J1 -IJJI-I. Amu" " ' ._fv'AGARAJ_. J. DELIVERED TI IE FOLLOWING:
¢4\'\~f-w...
-
:5 JUDGIJMI ' The '"'mum"**1t h"r""1 l"'s challenged tl':'- eo'rec,'"ess__o" the order of the learned Single J11dge,V--elf? 25.9.2007 passed in w.P.5e6_:g;Voe {APMc)e'deeteli;;i1§;g Vltotl» interfere with the order of the (_Jr.Dn._), T 23-62-2666 di'mis'i1f* 13:2" No.4/' that was filed by said order of the Trial Judge. ht
2. oil' the appellant as averred in his mti......n ..1;--;:e. "under . ?t3e-..ion 21. of the léarruetaka léroduce ____ __lvlarket1'ng (Regulation) Act, 1966 to as "the Actl') are as under:
H and the respondent Nos.3 to 5 (who were"respecfively the petitioner and respondents-3 .. I L_ to 5 in the election rnisepetition) contested the election held on 29.8.2005 to the post of Director of second respondent APMC, Davanagere, from No.9, Anuguu' "*1: c0fi§'"""--*cy . 'i"'ne respondent 'l'e..e*.lder cf t)a'.'er.a% was th -- ;"\':':1'.i.h"i'iii"fi tlffim to Le fld election: The nem.inet_ione ef the A"'\, 'Di 3% V " candidates.
ti appellant and the respondent nos.3 to in order. Elections were held on the said the supervision of flrst respondent Officer. ' constituency po ~~,A...._...-.J-- . 7-1 1L;
~. ~-- = 1 v------c'»----§ . --'.
V 3530 _ voters :_their' on the said date asthma smmgseudns together. After the 'number of ballot papers "those5remalned unused were lrluly. the concerned officer at each form No.22 as required under __Rule"-.30 .oi'. the"~~--1*5lgricultural Produce Marketing (ifEegniatien)v__l_<juies, (hereinafter to as E I' I' I E ' Iirit'-fig 1' V0 .23 was l1el_ .11 31-03-2005 by the .. Officer in the presence of the After the ballot boxes from the respective polling stations were opened counting of the votes was commenced but the number of ballot papers recorded in form No.22 were not tallied with the number of ballot papers recorded in form No.23.
E ii cl) From out of total 3530 votes from all stations, 49 votes were found the 4_ appellant was found secured _128'5--::'.'troizes;.VV respondent No.3 1282f. .' u -- »-., .t _ so .-ze.-.;.«~«.r=....g _fi.oe_r_,=.. declaring the s.ppel£ont;Veiectl2:d,g vrentViiiside___his chambers with 4 east in favour of the :;,A_t first respondent received te!ophoiile.._::"co;ll_fi'to the effect that the third who was supported by congxsss-i should be declared elected by " or 'l'herei'ore firt rsrrndent another form No.23 mentioning ..here.__ that 35% %ot pamrs found from all ht-Jlot mxes, resulting in shortage of 4 ballot " _ E'.'.9.f.'|.'151'EL 2 V» 'J 4,:-.\ lmmediately aiter noticing the some the appellant filed his protest petition at about 12.30 p.m. on that day itself before the first respondent Returning Officer requesting him to recount the votes in terms of the votes found in form No.22. The first respondent, on receipt of the said pefifion, instead C':-'~*--'-""\----
6
of resorting to Rule 37 of the Rules, took othltaform No.23 which was earlier prepared therein the total number of ballot papers 4_ the ballot boxes as 3530... and .
another form No.23 '' number of ballot papers asp_'35'2':6 sifioirv'ingV 4 baiiot papers were I---l mmediately on n-ti:L.a_;:, acts of the tirst
-'.'9 ree,_ee1eet, his agent filed _ rotest' day but the first not 'consider the same but see-.e er the elections illegally declariI1g._ respondent was elected. ~1*1_1ererez+e, A3[tbe*~ ..:apI;1ellant 'filed the said Election Mise.t_'etiti--on~._: No.4/05 before the Triai Judge D ~ __pAseelcin'g"*~the_A declaration that the eiection of ti' I...
_ third~.e1'espond'nt LU the post of mrecmr of $99.. I3.
" ;-'.P.*.'l(.1 from «Nu!-'st';-' Amen.-lu .~co_n;stit=.ieney is t.r..i_ and, that the appellant be it elected to the said post.
The first respondent-Tahsildar-Returning Officer filed T writ.en objections to the election petition and the second respondent AFMC adoperd the same. '. he contenti-ms .1' she fiI'St respondent in the said objections are as under:
C""<T"--L.--«...--
7
- 1) in all the 9 polling stations totally 35§.3{):.:"vote1's cast their votes and the details in the same were mentioned in Form 4_ of each polling station,_,at I required under Rule 30.__of V votes was held in Er-ea, of Rules 35 and 3'?"~eo "me eaid' i~£ul_ee;g The 'mm-"et boxed fie" all th" etatlene wen fine-.1 "'1 the Kefi 't..e.p[e,;11r.l..datee and a.ge1'1t.,_ that was put to papers from each Totally 3526 ballot e ~~~~ all the ballot boxes.
ii) ml the :§;eaae ballot papers were taken into eeesmeeattentes provided under Rule 35(4) of' the l{L1lesat.1d.i-'onn No.23 was prepared mention ll the of ballot papers feund in A uau t mr*alnir.5; in respective pellmg + 11 ~ :lete..tie... ....ne....1...ne- 11.). .a h- copy of'lv'orm No.23.
No mi_t_alce occurred as alleged by the petitioner
iii) Counting was held legally and impartially. From out of 3,526 votes the Appellant N.G.PuttaswaIny was found secured 1,281 votes and the other two candidates namely 4* respondent (---'$"'"g---
8 Mallilcaljunappa and 5"' respondent Kumar were found secured 615 votes and 49 votes were p_ Since the 3"" respondent; " » one vote more than the former was declared eleeted. V. hp at para 5 of the tl'1"'V' results of tile» Afirgst talked
iv) 'l't;wont_.;ia sought for recounting, his >\!1 V :' npotilconsidered because, as per the mgujlesmts, ppneitner the candidate nor his agent during the counting of the" xms. l'=Aoc'o1dingly first respondent issued Ll- _A.
___eI1_dorsement. Annexures-2 to 1'2 establish U181". Vt.he'~fi_1'st respondent i'oli"*ed th" 9 mrisions of 1 'iii 37 at' the l-miss in J3... process of _ flee votes. '1'.h._. _.rst respondent never '~ V ":.collud..d ,,-_.- t__e respondent as alleged by V) Though 3,530 ballot papers were given to the voters at the polling stations only 3,526 ballot papers were found from all the ballot boxes taken together. Therefore, 4 voters, after receiving the C"r\~/'"1______ 9 ballot papers might not have put them respective ballot boxes.
4. in order to substantial.
petitioner got examined himself and as l-'.\.l!a.1 t- :3: Renpondentsl didwnotdhtahocasge on' their behalf any evldenc-*,-- .°itl'1er-~er?"* .6 .. "need. on the oral evidence of PLWSQ' the documents l2)xs.l'1 to me the uedggJ%_by*~erdcr dated: 23-02- 2006, dismisaedif-the"3V'--.._ of the appellant. Aggie'-.re... ..h,§-:5, oi' "cilmissal the appellant filed learned Court by order dated 2o.9.'2(')()7' the did not exhaust the alternative ' appellwt hasdellall-enged in .his. writ Ann? I __th the orders provided under the Act. Therefore the
2.
" single Judge and the learned l-'r-l.{..'i'v'il {u'r.Ln.},
5. We have heard the arguments of Srl "l{.olCham1abasappa, the learned Senior Counsel for the appellant, Srl tlarfladhar Se-.ngo..... the lesmed ALIA wr-
10 representing respondents-1, Sri C.S.Patjl{ S1*'i.A.L.i-'reirnaimrnar, the learned ad.--_1.a..es f _r;"":espoiid__e11t Nos.2 and 3 respectively. Respondeht 1'V'6S:."-'i-~ .-- :é;1d"~.::5«. A remained absent. In View of the ' learned counsels for the followings' our c..1'_I.._idemtion:
HP 2 CI |-mi EE 'at' 52' S:
5} CD :a 6' 1 J E P I id-
=3 U' :7 . ofAPMC Act *9 .... "ruleM_is issued by this Court in the writ petition whether the same is V -_ to decided on merits?) mm: _ V_W.hethef:the findings recorded by the Civil " " ' Jiidge [dr.Dn.) in the impugned order are either erroneous or-error in law? Poirxt' Whether the appeliant has made (rt :1 .. .. + Our findings on these points are in the 'aIfirmuflvev?.Vitor.the following it it s. 'r"o'"1t No. 1: At the outset, sn lg§;engnnabaa¢appea,' the learned Senior Counsel for .the_uapp'el_haint * the learned Single Judge was not in the writ petition of the appellant " declining to interfere with t...e ..rdr3_~.r o*' the--d.'Is'lr;isfsal of petition by th- learned the appellant did not avail the _ provided under the Act. Per coicvttrat: order of the learned single Judge, al-.. t..e learned coon-sis _i1_fVr*fe"-ring to Section 26 of the Act the"~3es1ned Single Judge was quite justified in L' dismissing on the said ground. .V 7. 26 of the Act provides that any person ; by tiny decision or any order of the l'.'lu..*1si.'i' 5 *rw'
-Jtgdge {dr.l}n.} } passed under 'Sections 20 to 23 or 25 . .1najr; 30 days from the date of such deqision or order, to the District Judge within whose territorial r--..(--"""""'\__.-' ii jurisdiction the market area concerned is situate decision of the L): trict -Ju an en sue. ==m~=--' . and c'"riu'i"e. Thus 't is ciear from previsioiiv " " V appellant herein had an alternative of the impugned order passed dledae "
dismissing the election petition of under 4 n5;
rt *9- SeoLl_n 20 .1' he Aet but the .4 Vet' avaiihig th"
same, apfinaehed this petition.
8. On the appellant in his election :' Judge and also in the writ petition; 'i that serious allegations -1'
--..I...., mate.l.a!.._'i;.egelity'A._anf£' faveuriti-sin ""v'v'ards 'u"r 3:
cl.
respondent against the first respondent Tahsildar was Ofiicer and under whose supenrisiondzhe of votes took place. Further, it also a1legee.tag;§inst him that he hurriedly and fi'a_u..nl_.n_y ,.v.;l'e... led." 1'es""I1de'fit es the rettir-'1"' eandidrte '3? a l of single vote in gross violation of the relevant éj of the Act and the Rules thereunder, without .eonsidering the request of the appellant candidate for fl--.g-Y""--"'---'--I ..' ll\ 13 recounting the votes when 4 votes (ballot papers) shown as sh..rt,ln1'.s ma. Besides this it is appellant candidate that the l-{eturnirg the d original form No.23 with a new showing that there was shonagefiniissing of 'V , tron: one ballot box and one 1 another ballot box 'pertaining m A"i+al11va1'thi polling stations respectiveiy. .ng .eu_I1d that the appellant and the third respondent " said four votes were
--an_L1l_.ntly the said ballot boxes just to d"'lare as .._ected by majority of 'one ~V.lf'vv..ti1e«~.i:above allegations made by the appellant candidate first respondent Returning Officer, who
-- eras req_1iredv to act fairly and impartially in conducting the counfiigg of the sates, are .eund pm-wed, it has to be held that first respondent, being a resporrihl" "fiiwr, acted in fgross violation of principles of natural justice and also quite unfairly towards the appellant. It is the settled principle that C'-._|'-"\I--\.....------
it':
in a case where there is violation of the principles of: justice and where the statutory authorities do hot u:t":II"§ c':'I.u.u unu Uuu ' E 'V"l,.Vl.1i$, this» availability of alternative and eiiicaeiousl* ,-the l' petitioner by way of statutory-..._appeall"for legality and correctness of an fundamental and sta,t,t-ry rights, 1l1_t:;"a;j --r we (_3o.__rt _- ......-4.L.i.,_.._....JA ......§~_.IVJ-...L.3...l ' A..A..1_.I_. :1- iufi"""}"'jtu'l:5u1L:_ _u t_i1"1t'iv:1' tuxuunc ' £6 at' ..1..._. 34...
UKUFUIBU l.
is:
E».
supervisory of the Constitution of India. by the Hon'ble Supreme Court at';pa::.'a Vtlilo'.w3:-.. ,»its:'j11dglment in the case of Durga
----vw---u'u--u v-uwv-.-- , _.- -v-_---. --v--5 --- -- -uuaw'-v-nuw -u------ya; -------my AV'relied*'upontby..lthe_learned Sr. Counsel for the appellant, as: "'l*i2eACi-iigh Court, having entertained the writ petition, which pleadings were also complete, V ought to have decided the case on merits instead .. of relegating the parties to a civil suit." the Division Bench of this Court has observed in the 'Q of Karnataka State Road '1'rans_port Coqnoration, "Banana:-Inn; an annllnnu nu Fauna!-melon films'; Wfiunnannui 53$' "'3 if KITFII1' TI II-KC ITKIIK HTKQC JIKUWYIU C-$\'--"'-v"
i5 Authority and another reported in AIR 1984 as under:
l_+)"*'1 'v'v'i'i6T'" an eqnaiiy effieaeions _ remedy exists, where, however, *.fun.da1neni rights are affected; where rukes of 'justice ;~ are violated; or where there is on the " of the authority concerned«.___to confine itsce: i we bounds of its ieg';t.imate"vj,mdsdie'uiion"or there is a failure to exercise ._a jurisdiction vested in it or where thexeis ofiaw apparent on the face of the reeo"rd,'--_a invoke the extraordinary jvuiisdietiopn of this Court under Afi.'235) witt1out:"refete-nee "any remedy however efiiear.-ious it "The___e';tistence of an alternatives _d__oc_§ not oust the jurisdiction of the iIigh",£'oI.i1t .Art'.v,9.-26. The rule ti'I.at the "does, not.__ entertain a petition under Art,;226" ' sé»hen3":,4 there" is an efr"ieaeions_ alternative "eis"'not' a rule of law; but is a principle the ,_have evolved for the guidance of their "
4 .if'oiio§vinug_-_ithe aioresaid, judgments, we are of the considered " learned single Judge was not justified in disinissing petition of the appellant on the ground _ did not exhaust the alternative remedy of appeal.
10. Point Nosxg and Having heid that the iearned V , jjsingle Judge was not justified dismissing the writ petition of the appellant, we have now to examine whether the learned c.._!'\r":.--~..----
16
Trial Judge was justiiied in dismissing the election petviijoo 'f the appellant. As to merits of the Kdchannabasappa, the learned Senior appellant, strongly contended that ..*lfillll\Iie*.I.rp_ 9 T. l . ed :lr'sl+.:e_.
fem, that in mtal, 3,530 ha rs nran'-av'-5i*.V_=-re. voters at all the 9 polling ballot papers were polled"'a_s ll'}l)l:VsV7;'P'1ll to P9 the forms No.22, were with the 11 1.ri.___ne. sf big, Vtheilttresidm Ofiioer of r ll after the Miling and, in l'residing Officer as to the incident 'away of any of the ballot papers issued the at "of the 9 polling stations during the geese in View of the fact that before "':11"i_f-1;' '*" tn" vetes, the E-{et-.-..-new bi'E.w.
that was put to each ballot box by the W H 'T of the respective polling station was intact tee' such there was no tampering of any of the ballot 9 feexes, Lhfle. could M no r_xnce._ _n 0 the sfieged or ('\.f'*~"""'-""
1'! missing, of any ballot paper from any ballot box as contended by the Returning Officer.
.6 1 1, _-_ .K.o..}b.9.nnabasappa, learned wntfiided that even it is assun1ed...that eiaslmissmgllof four ballot papers, it was for 1 mg J Officer to ascertain from the respective of the respective polling stations c-tint the votes a- to h.;. when those ballot papers 'be 'boxes, but it was not for the While contending so, he being positive evidenc-
of P.Ws§zI_ to cf' the apmllant tl"*t the first res,oonde:1.Q" after having found that the .-appei_la:nt 1,285 votes and the nearest rival AV'r;a:adidate.__i;~eg,vrespondent No.3 had secured 1,282 votes, in order. declare the 3rd respondent elewed, the ' l~r:etu1'x1in_gv''{¢)flicer hops a-...de without taking into account 4 halllogpamrs '"otes) which were cast in favour of the and prepared a false form No.23 showing therein . V 4 ballot papers were found short/missing from the said i ("H-1,.-k;_.--I C-----
18 ballot boxes, the learned Trial Judge comrnitted seriojs erro L; ..._._._n :1. ';,-_q;
tuc pcutiil V * '1 U4 mi 1 L11 l"""""1 "'l'.l'fi'i'1 'f considering this important and relevant 4_ determines the real controversy tl1at--has this '
12. As against the above nnelll . ll=..~:a1~n.r gist;
or t. e _ .. ..._,,_...t,.,. ..
the learned counsels for respondents urged that the Writ Petitjonlllll is not Inaintainable .. remedy of appeal Under" l but the same is not a Qilfl '1' an ' 1'7 ' l"lt'5~"'*i1v'I"'I1"n'|.r'rr1a'-Ir'l ntflnr -Imnnunrl I-nr 1-luv-ul-.naI.o\a. -|.|..I.IJ..r ea: '1 as 9111.: All-l1ll..aI5l.l\.l\-I \lL\.I\dl Ill'-ilk'-I§\.I'\4l II', the learned lsinlglel and valid. They furth er contended ,V_:'the'.*~appeliant failed to establish that all the werelflfound from all the ballot boxes taken ' 1 |')QFA\'.,\'I-1-:1-1:1:-.::|Il3*i'.'.~:AV'.1 _ -ruacu-\.r-n-1rI:.n-sf had my-nnuy-I J.'£¢lJ\l ':0 tI.l.l.u. tr finding that the appellant had secured " respondent falsely prepared form No.23 showing therein of 4 ballot papers (votes), only with a view to declare respondent elected and therefore the learned Trial A" dludge riytly dismissed the election petition of the appellant, Wx In 19
13. The facts that the Appellant and I'espondents';3to 5 validly contested the election to the post of _
4. n u A ............I... .........4-.14.. gs, ....J.... ears 9..."... LI... :1 ..' .._a~..." .... _ ' IIUCIJL I"LI'.I.V.I.LI IIUIH IVU-7, nuuguuu D I..l.'.-i.l.t.i'l__I.".r.y'p_ 'II. I '~ r""'"* was held on 29.8.2005 and that at of the said constituency polling wasaheldll > accordance with the relevant of ' and the b2.I_1__.._ and ..lse t.,.a_. w,_en Lhe t"_m!l;'t.'_~n:;;es e.x_a_n_1_in.ed Dy the fit iespcndent presence ef an the agents before on 3 1.08.2005 the seal put to each intact are all not disputed. .'u...her, it is hat 'n No.'-2 of stations, was duly prepared, as 30 of the Rules, by the Presiding omcer station immediately after the polling over. that date of polling mentioning therein the I-unllnf 1-so-n91-vs rnnnixrnr-I I-nu I-In |Jnna§rI-in-In ('fl3Hnbt- 'I-I11:
1.. Harman all I-0'3»!-Ill I-\.aS.I'\.aI.I.V\o\.l. ll)' l..I.I\.: J l.\JI1cl»\-I.-I-I 'L.IlJ~-I\d\-I-I, I-I-l\.v of ballot papers remained unused and also the of ballot papers that were issued to the voters.
Exs.P1 to P9 produced by the appellant are the authenticated fl') Photostat copies of form No.22 prepared by the V Officer of the respective polling stations and theisi L ........ ....4- ':01 U I. L 1 4 'C-mourns!!!' 1;-3|»-n a-'nu -I-I-unsung urgdup __ ~ _uu I U . 4 In-11-'-cu 1 1: LC 1 € relied upon by the above respondents 'l'h¢': '' these documents at Exs. P. 1 toP.9_ cstfimish met ballot papers were issued to Iroters st the 9 polling ft. e (.2 ns.
I'I , 'I! .. !\f\
14. r.'x.P1i)_Ais_. "f 1r fin 5\io.Ao which contains found at the time of " hoxes pertaining to the respective /. -'reveals that total number of belle. pa"°,..rS4._4fOund. 9... the." time .1' mmztipa m N the 9 ~ 'together.._W.§s 3,526 resulting in shortage/'missing def' which were polled. On comparing the contents of with contents of Exs.Pl to P9 (Forms No.
22) it this that as mentioned in Ex.P-6, pertaining to use |..;.;;,...:-11.:
._ 1.! ru.nIH1-an cl-ct:-I-inf: 0'75} hnlinf nannvn tin'-Ivvn iflaltnrl fn Puuu ElI.au.II..L\l.u., JIILI uuuuu tiuywsw nu-nu nwuuuu. nu V' .___"'theV';voters and the some were polled, but, as mentioned in ;.i.4)xtPl0, only 277 ballot papers were found, at the time of counting, from the ballot box pertaining to the said polling g-'--1""-"'\---"I Similarly as mentioned in i:3x.'r'-ii, the form No.2'). _'}eif*._'ai_.I..ng to Kandanakovi polling station, 462 ballot papers to the voters and the some were » 1-;;t,i=1o form No.23, only 459 ballot tine of co'ont.iI-1% from the it polling station resuiting stionts;-_--ge;illfnis-*ing=.. 3 '-..-.-.!1-.:!-. papers. Thus it is are shown in l!'.x.P.1O Form the ballot box ports-.i-.ing t- station and 3 from the 'Da.'liot polling ._t_.t_ion.
15\ 5c«.to "f the "id 4 ballot papersa"'it.V_:Vis of the appellant candidate, as also by him and his witnesses viz., evidence, that the first respondent l'""v'ing found ..h.-'-.1- thi.. nppellant had ~ 1:285 votes and the nearest contesting candidcte i.e., A ihespondent had secured 1,282 votes, with a view to the third respondent elected, directed by the leaders " ll of the Congo-:.ss l--po_rty over phone, kept aside 4 votes which 6*-C""'-"'\...-----""' 25'.
were cast in favour of the appellant and prepared a new form l\!e.'.J.3 showing t..e. _.in t._r.a. . t...ere were totally 3,52e votesmily _ 1:-......... i.....".«.
cs, 0 u 1.11 tut: -' s..-l._m, resulting in shortage,' missing of 4 'v' pertaining to Kandanakovi polling __station snail ballot box pertaJnin' g to l-laluvarthi puumg mun reduced the number of votes lbyithe L' "35 ta 1 A 1 1,'! } 2.31 and .hen;_.decls.fr;dVV:the"£§#fl meager ele...t_ed_ by a. majority of 'one voi:a'.' h p .
16. None of to adduce any evidence, oral; the above case of the appellant saieeiridence of P.Ws. 1 to 5. it ...:.......I..:~.,_4...* V' ' is an 1 e_ta'éd 'a)3u'~«t.Li':e'*mg..._p' " :1) the election 3,536 ballot papers were "given yotes' at------«the polling stations, at the time of ballot papers were found from all the eeivtogether and the said shortage might be for the ~ --« jg w Téfifififl ul ;.L..;* ...a..._, ..._ lv' HIE 1 put them into the ballot boxes at the respective . 'f stations, which is not the case of the Presiding Officers the said above polling stationstlxcept this vague statement in (_,§r-\--'_______\_?
"23 the said objections no other material is produced of the respondents, including the firt Officer, exp.ainiP" a H: h"w, , circumstances there could be the l' 4 bauotpapers. i ' i
17. Rule 24 of the polling that inilnediatellyi. of the poll the Presiding to the contesting ct-indidateis,' 'persons as may be, present at the polling bo.. is e1np.,=' and shaii then toxthe with the number, any, in the constituency; serial number and name of number of the box and the date of the box and seal it with his seal the ; he I:n, '.i'~.t.-.. oontwting -::.=.=.nd.id.=--.-.tes er tuir Meat" ii' tiry so at, the said seal shall be affixed in such a manner 'V V it is not possible to open it without breaking it. Sub--rule (4) of Rule 24 further provides that thereafter the sealed ballot C ,___Vr"~u--\.-4-7 _..__....l_|__ "nu- _A_l _V-'._'-VIVIVI-V'l'_I\\ --1.' A_I_ _ A _A_ .fl____A.I_ _._ __.____!.I_ _ A_I._ -4. L9 _
-pulilsmzgil zeecuon --a.;:_l_4;_o1 we act Iuruler provlues max 11 Inc all 1-'! box shall be placed in mu view of the Presiding 0liieer._Vand the agents of the candidates. Sub-rule Q9) of nnifirl -. 'I-I'M-3+ I-l-I IA!-A (\|l'I -I-tutu:-hrii-1 I-Inn I-Q.-..Al 'f\ 'LC 2 I 1' _ IT _ _ W . (I !Jl.|..lI'1\l\.Ji3 I-I.l.a.L I..I.I\4 Vllllul, U11 l.\.l\.a-\1-I.V.I-I15 Iull-'M "Jul forthwith proceed to the polling up':in'*-the' l station and there, make a marl:-on theeha llot:
instrument supplied for the of the %,I1(i1dl.i.1;t_! or candidates L vete and then |..1 u. ...-..J .1... .-...._'a., :4; 11...'... 1-'Ii.-'._..'I.}-'-.....":i... 1U. L11 U. ,I.l.l.BI7.I,I.. IL I. W L115 IJ£91.I.l '-b 3 3 I....II..4. ..........,, U L 4- an ('F El'
18. Furthe_r,. of provides that any person, Who, at takes or attempts to take polling station; or willfully aids gf. 9... .- he" be 1'1
-7 --u----_.-- -- It-p-----v amts t._;a _::.I..t.ed. and I 0-:
A_I_ the polling station has reason to believe committing or has committed the act of _ ppfraudtilentlgg taking away of the ballot paper, such omoer may ' 'LL!-II--'\J\J\I-l"'IJ.ll.\-0 u. iifnahl? nrnnu 1' A ucrirl nnrunn nr (HI-nnf n nnlinn nffinnr fn V' him before such person leaves the polling station and it _l4_4l'inay also search his person or cause such search to be made by the police officer. Section 35(3) of the Act fulther provides (--._<\"'_\----""' 25 that, if any ballot paper is found on the person of such: .. s....,....ed, t..e same shall m kept in safe cus"to<'.y'.' ~'-*--.'.h"e, Presiding Unicer. ' ' '
19. Thus, it is quite clear Rule 24 and Section 35 of the Act--~that" as e the contesting candidates at " by the .. ...... I.-.".:.. -19 _.-|u._._ L- _|_-
1'1UBl.\.l.l.l,Jg {}$"s.2'c';1 bfifuuzi tn "T .Ll1Ll_.1l.'£l.|.?u'C out 0.]. ml ti t ' 1 ballot box which'_:isv__ to be g the ballot papers(votes) by_en1ptyt jtsnau be locked and sealed with as-pipléxesiclingoorricer and those of the gt ---_-1 1-; 91% in ft...
It is clear from the said provisions that 'receiving the ballot paper for the purpose of the ballot paper into the ballot box after 5-» E-«-
('I andidate as oiee and after folding it, and ifrauciuientiy takes or attempts to take away the said ballot paper, such an it of the voter would certainly be witnessed by the Presiding Olficer and also the polling agents of the respective contesting F'f\".'./"
Jig.' £0 candidates and other persons and, in that event the Officer sh..." ha.e 1:. proceed to arrest such voter;"and'.reooiier- from his posses*'*n s""-h ballot page it is to z1.'.'tcp that it is not the case of any of the i:espo1ideizts'.ti'1at~ at ' 1-laluvarthi polling station or occurred such an i11(:ide1it of with him "'|-.
C C "er any hallo. paper i_;.3.1L.__ L. la;n" ._for the purpose of voting. Further, adrr1i'tex'i'i"'»,. to t..e-se two polling it the ballot papers that were put into the respective ballot boii;es'~at stations.- Therefore, the vag"e '"'"l%':aticnV' by the fi_rst. respondent in his ..- wiittenfiobjections eic(":""1 '"tiu"i'i {Whi"h are adopted 'by the. respondent) that the said 4 votes which were alleged' to found short/missing at the time of have been taken away by the voters instead of pfitti:-kg th-"- into the halls. was a. 1:......ir re_pect_ive polling '' ..,_"V"sta1é:ions is based on no facts besides being "ntrary '" the V admitted and undisputed facts and as such the same cannot be accepted.
27
20. As to the allegged shortag, _r xnissing oi' .._..._.I:._J_L ..._!L,t papers, the apmliant uiuulu Le, * t_§sides"--. necessary averments in his electio_n....peflfie1"1} _ clear terms at para 6 of his it this examination-in--chief as P.W. tiled' I0 F from out of 3,530 votes {:9 oftt._.d;--»..i..vslid,v-.,.e» it' all 1,235 votes, the ti""'d 1,282 votes and the other two ueandida.tes:' it and 615 votes respectively fae.t_IespondenL instead of declaring him (appease; candidate, declared third $,as. ..:...her stated mm-sin ti--t at ti"-'t time o1"iicer who was subordinate to first iiiside...the chambers of the first respondent {vitI1.:.4" wherein the voters had cast their votes in e»...__._favoi1r:"of 'jafqoellant and that on seeing the sense he questio__ed t:,.e ....id ..f!'im as to he' '""s taking the baiiot F"-?_*rsi""'jto the chambers of' the first respondent but he told aappellant that he was so taking them for getting' the V _eenfl1mafion as to the validity of the said votes. He has also stated at the same paragraph that while hirnsel_f F.,l..1'1f.'! ot..er r--5.
T---.._n--\._r-'-5., ,-
"50 All agents of the parties were in the chambers of respondent, the latter received a telephone call Congress (1) party should be elected bydaotaki accordingly first respondent r showing therein that 3,525 votes rmijcliin the ballot boxes and removed. the _4'l--Vvotes" were cast in his favour and the' t1"rrcm""
requesting the .first the votes in term' s of the votes hut the first respondent did not cdnsider.liis'j';1equest'.. ' 5
21. =.'.)n.._4 " pa-;i.'~'a_.$!. " t_h_ cross-examination of 11'.' *'P,W.1fi-ilppeliant) 'nIade__o:1 behau of the r""'"'*1dents it could seen --v.A_vti'1e*4.lfiehove evidence of the appellant in his has remained totally unchallenged «was though the learned counsel for the first .__respondent has ..ugge-sted to the eppellarit that the first '' ..._"res1jéondent foiiowed aii the pmedures and me rules '.'.'hile V jdeclaring the third respondent elected, he has not made any further suggestion as to the said evidence in exa:mination~in- ('g§'\'\-------\ chief. The evidence of PM s. 2 to 5 reveals that it fully and it fl-'\_J\.L1 t._ . mess-
alse on the same line as in respect__o£ "' neither the first respondent againstV;"Wh:)n1iV allegations were made by the ajapleilantiner L' I \JI2ltl\.I.IJ \.1J.JuIJ -I-ital' I-l\4I In ,'!I C =-==mnr-em-+-= en » ee "fitness.--.;.'.x"fe§r d is-vina :. A .-= id. evidence of i3.Ws. 1 to evidence. Therefore we have' have not discharged their" theirueontentions in their objections. **** .
,' _ menu. ' u .rL..i .....egi it *em.."_I.i e-. e tn . i. d f _neriy .----..---- -- 1..- _r _-
a preciflijflge. the ;.*9sitivex' eiiidenee of the appellant and his 'sritriesses i;e., Paws. 1' in the background of the fact that seem not choose to adduce any evidence of men»-ee-e geetieeig the evidence of 1-'.Ws. 1 to 5, the Trial Judge has her findings based on some admissions iiiade 'T by z the appellant and the said witnesses in their as to seine facts not relevant to the case of the and dismissed the eieetion petition. 1 L 's .-.a.
50 admitted during his cross-examination the suggesfionslput to turn.
him that hi agents wih1es___g Lhe __..- ._ _ --- 1..
- S J ! l"l'CSl(l was - ---'"- "fi'ns; er 't th puluug 5 Officer, one officer appointed by l and his agent were sitting i1:-rside the-._ persons belonging to the contesting Vtéandidates we.
polling, the to all the agents of the is empty; he has no objection, _Aéts_:"to;,:_ to P-10; before commencementAV.Voi'V of the votes himself, his and other wmneemed
--o.fiieers' the seals that were put to the ballot Lwere after another in their presence and the in the presence of himself and persons; i thehvtotal of the votes secured by the contesting ....z.... .....a 1 J utcu tn" votes 'yrs 3,5-"6 ..._'\'§l?.asV'coI1'ect. He has also admitted in his cross-examination , that the entire process of election was conducted in accordance with law. However, he has denied the suggestion 4 sir " Q > the 4- . it 3} that the total number of votes (ballot papers) found the ballot boxes were only 3,526. PWs.2 to _ '23. Since it is not the case___ of P0111118 was not held in K irelevant provisions of the Act the required nrmednree W re no..._oll.o'.-.='....--veit.,.;er_h:,' 'the"rreeidir" 0ffie*-va ,.-..- ... .....
a' the polling by the Returning Officer before of the votes.
Therefore the of-'PWs- 1 to 5 in their cross- examination the main a_llegatlo__e _f t.._e ' 'V ' ' no .................|__. - -_.-._ .. ..,,.,.u..u..p,_.=_+:$*-.?.!'.IGl'ifl that Vl'.;"i" 1" 1 uu. ut - Rctmufin prepared one Form 23 mentioning therein the 'fhallot papers found from all ballot boxes "nae having found that the appellant had c votes more the votes secured. W the 3"
' .mS}_7mI1uou'u'., tu"if. R tin 13 Uuluzr, 1.11 uer to
-- that the 3'6 respondent was elected by majority of one ifvote, took out four votes that were cast in favour of the \ F_& it L insane. d 32 appellant and then falsely prepared another h'o1nf1:\l\lo.23 showing shortage of four votes (ballot papers) boxes. As already observed by us snprat;..,1Lli.7 ' armature V .-- ---4-vrvn--1'----now! has also deposed in his evidence as dtolthese it the evidence of PWs.2 to 5 evidence of ' the appellant and the "to 5 as to_ these allegations made againet. ,"_rst.,pre_,-_d1".!;iL..;.ei1t has renr,I..r-.iined ""um""" "1:'::'1sllefi;---A?:i/;tn. ~'4,,','.;:1is Judge committed serious ftliis positive evidence on V . . ' . ,' film' r:"L , AV - u,,v,__,__,_-_.,...o record and recording her' the mac: points that ,-.r--..r---
arose for consideration holding that the appellant- petitioneg' f'_.il_x_i ;.>__,.sta...iish ..is ..a-.... by e.*'.*.'ering explanation , ex' rd Vljnissing of four ballot papers. Further', the observationsef tlfielleamed trial Judge in her impugned order that v'--g§a's".V_no impediment for the appellant-petitioner to hips objections soonafter the declaration of election; .113 .9, he is n "o:nm'record, inasmuch as, E'x.P.i5 is the representation submitted by the appellant before the first respondent .;------...F\----~-------7 33 requesting him to verily the alleged shortage of nu-name: n-nrl k_',v D 1 'I -la 1- n ant-Inrannan-nf 1-rhn=rnI' ,V'I-ha" .. 15:11' Raw' 3, C'-II'-I -I-I-('OI O J- 1 J'-I 'II-I'-5 'J-I'-\«I\JL 'WEI-I-I.I.\JlI-J': y'\J"_5~ II:
respondent to the appellant inmwres rise..'ffm"fEx.i?,"l'5. representation. Therefore, this 3 the it Judge is not sustainable.
2.4. Further, Rule 37(1) of that after Returning Officer the result of the election in number of votes with the 23 and then declare the it Tgffi votes as duly elected. 9 -4' +I..... +...4....I 1 Lu I. I311 " ofirotes Nos.22 and 23 while preparing Form by Oflicer before declaring the results of mean a mere perusal of the number of the l-5ei:u11nn'""""g Oficer finds any di V' ..._44.A'.he..'§11nies in Form No.22 prepared by the Presiding Officers at the respective polling station and the entries in form No.23 prepared by himself before eommencing the counting of c---._('-'K-/'KI! 34 'fi'"J the votes, he has to verify the discrepancv and a__e.» -.t..e cause for such discrepancy and also bring it toihe' the contesting candidates or their agents 'present V' ' and time of counting. in the instant no' placed on record by the l<etu11ii.Iu:1'g..Qifieer__asp did' ~ it after noticing the shortag.3__ or ._._.ur . if it were to be :';r"e ti"t noticed shortage of four ballot pertaining to l-laluvarthi the ballot box pertaining station and he entered the same in mm to tb.e--.._-.n__.wle..ge of all the canteen ca-ndid"es inciiicling-__ tl1e'«...appeiiant and their respective :_agents,._':g_j'§'he shonld' have made all the efforts, before of the votes, to ascertain as to how conldv 'shortage of the said ballot papers when polling stations were properly entered in the it Form 22 (i.e., Exs.P-1 to Ex.P-9) and when there no instance of tampering with any of the ballot boxes or the instance of any voter at any of the polling smne__s ta...-.g A *.9;!'t_r=;r.
35 away with him / her the ballot paper issued to him [her for casting vote. This being so, in the backmoundplénfp "Afsct the. the Ltd respondent was declared elected by a jtnejefity of... single vote as agaiirt tue a"pe.i=g..'1t-}';s:ttitio.-;e--_ "alle'ged7__ missing of four ballot papers e.S_sumeti_sLii ' " r§ .. '.-.-goI-n'1i1u-I£-
épiin. V1 gu
25. As rightly submitted' the learned Sr. if the four fiat Mpers '.t.r...., the duty of the lat responderit _ ..nd out, before es to how and under wi-"t circumsmnc.-s be missing of the said ballot papers the to the said two polling _ s'"tt'{ns.t'~ l+"erther, it was his duty to explain before the learneddtrielztfiudge by entering into the witness .....x as t- t_h__ FO-
of the said ballot papers. Since the is respondentfidid not do so, the evidence of PWs.1 to 5 that found that 1,285 votes were secured by the appellant as egalns. 1,232 votes secured by the 3"! ll respondent the first respondent -- R'turr'"" Oifleer @l£ .1..- four ballot papers wherein the votes were cast in favour o the '13:
av appellant and then falsely prepared another P'OI'iIl"»pl'lO.23 showing therein shortage of four votes (ballot to reduce the nurmeer of vote mmw. by the. 1,285 to 1,281 so that he could the': it elected by majority of a single. vote,v_i"whic.h~ unchallenged, ought to have Judge. 'l'.herei'ore, we of the--- that the learned o"ghtv to hove -i1'eld- that iapmllantemtitioner has made o1n;..{h¢ 'to the grant of reliefs sought forh__i_n_ we answer both th - point Nos.2~. iefflrinntlve'.
26. Be,.".re e;l-';i:. our judgment we are constrained to Tahsildar - the returning officer, being a dealt with the matter during counting of the while announcing the results of the election mrti. jmting in the proceedings .31: also as .0 his wndu..- i.
LWIAI .___"'before the iearned ma: ..i"dg' when 1 u s aiiegau"""ons it xrere made' against him by the appellant-petitioner; From the records of the case it is quiet apparent that while counting W 3:?
the votes and declaxfi the results of the election he undue favouritism towards the 3ffL1esponder1tT'_5g Such conduct of such a responsible obligation to act fairly and suchiajsituxnlion as .3' .h -14 s_A.af,:puhfi_. r it.
_._.I_ __
1.-
IIHIT.
at.
th' d V soul of democratiesysteltfi Republic lndia.
27. deprecate such conduct of such offioer lite it "fithe same would not be hoI._..r.l 4--it-1.-u.--u---- - - ....x-.'. -4-. V-poo-r -ru--- u.-nun renent .l_'__l1g mg _ we-,1-i fh ngg be inve_stigated and the erring ofiicers shouici be in accordance with law. Hence we direct the to Government of Karnataka, Revenue conduct thorough enquiry in the matter and tdimota t. -i*4=r'ifl'*fin"r 0" M' ' to take such d.sci.plinsry as is permissible in law against all the concerned oificers and to submit to this Court his compliance ~ freport as expeditiously as possible, preferably within six months from the date of receipt of this judent. l+'urther_. we c'-"""'""'--"' I-
38 direct the State Election Commission and the P' 'euictary "' Governinent oi ..i=-.r.n.at..=i...a, l<!..--,..hu._. ijepament, that Sri I-i.M.Revanasiddappa, who, FE Davanagere Taluka, was the Returnirigi' first ' respondent) shall not be entirnsted ..ithe- 1.- he eapaeity of the ibfliioerfor in any similar capacity in **"'iti'i='ii'eriie?diéate'i-effect. 011 %count of fraudulent act" of ' in cieciann' 'pg unsuccessful; respondent herein, as duly elected _2**'i.' -- APMC, the Appellant, msidos oiiiiisasiotntory rim of being declared elected, nos' oonn--~=i4ii i~=-~ *- '"'pI'GaCh the son... and " m_atter;' process respondent No.3, being V.Vii1eiigible:'v--eandidete, has been allowed to functions as the Vi$ll"M(3 for more than two years. Therefore the sii..ii be sa_dled with the costs to the for having deprived of i""~ valuaul" s'"tu*'*ry r''''1t . for having incurned unnecessary costs on the litigations.
28. in View of our foregoing discussion, we are of the considered View that this appeal deserves to be allowed and M 4*-*'-' V' to this declaration, fOi"'1'.1"i"'i'|'.1 3'?
the impugned order dated 26.9.2007 in w.P.No.58o2.,'L'.e {A."l'Jl{.., by ..he .%e.. smgle -_...1iit.1'.g.;._~ *Ll1_i».s Court dismissing the writ petition deserves; to» fie? - Accordingly» We allow this writ we ' impugned order of the learned' > we allow the said writ petition, asitle the-- order II?) f flllli .l..J-_..I L. _ U. L U £0-£-QUUU V. I.-_llI-£V'_ L\a'Iil-li_ __ V as ""ssed"~ ti" '***-=*' Prl. (311.11! -|I..I...g.. Ill (dr.Dn.) Davangere; disntiseing 2005 and allow the. petition with costs of Rs. 2:s,ooo;;l be paid by the said Sri who thenwas the Tahsildar of Davanagere.~"Returr'"g Officer and we ..m,L§,r " election....ot'« the 3"! respondent to the post of VhL)i_reetorA of:_'&!¥¥¢V':respondeI1t -- APMC void and further declare thattlie figment herein has. been duly elected to the said Jae 'concerned _mr_=ere of 2114 respondent --- APMC shall ..l"'
29. Registry shall send a copy of this judgment to the Principal Secretary to Government of Karnataka, Revenue Department, Bangalore, and also to the State Election ' 1! 40 1! . n I I -.._ ...u- Inna, _ ,1' commission, naxtsmvwa directions issued at para No.27 0" t.'r1isj"d cut.