Karnataka High Court
Sri H Mohankumar vs The Chief Election Commissioner on 21 March, 2017
Author: Raghvendra S.Chauhan
Bench: Raghvendra S. Chauhan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF MARCH 2017
BEFORE
THE HON'BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN
WRIT PETITION No.53617/2016 (LB-ELE)
BETWEEN :
SRI H. MOHANKUMAR
S/O. LATE HAMPANNA,
AGED 44 YEARS,
R/O. HONNENAHALLI VILLAGE,
MADENUR POST, TIPTUR TALUK,
TUMKUR DISTRICT-572201. ... PETITIONER
(BY SRI H. V. BHANU PRAKASH, ADV.)
AND:
1. THE CHIEF ELECTION COMMISSIONER
FOR THE STATE OF KARNATAKA,
BENGALURU-560001.
2. THE DEPUTY COMMISSIONER
TUMKURU DISTRICT,
TUMKURU-572101.
3. THE ASSISTANT COMMISSIONER
TIPTUR SUB-DIVISION,
TIPTUR-572201.
4. THE TAHASILDAR
TIPTUR TALUK,
TIPTUR-572201.
5. THE RETURNING OFFICER
TADASUR GRAMA PANCHAYATH,
TIPTUR TALUK, TIPTUR-572201,
BY NAME D. M. KSIHNEGOWDA,
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WORKING AS HEAD MASTER,
NALLEKERE HIGH MASTER,
NALLEKERE HIGH SCHOOL,
NONAVENAKERE HOBLI,
TIPTUR TALUK,
TUMKUR DISTRICT-572201.
6. SMT. B. K. NIRMALA
W/O. MANJUNATH,
AGED 31 YEARS,
R/O. HONNENAHALLI VILLAGE,
TIPTUR TALUK,
TUMKUR DISTRICT-572201.
7. SRI MAHALINGAIAH
S/O. LATE SHANKARAIAH,
AGED 54 YEARS,
R/O. CHATTANAHALLI VILLAGE,
TIPTUR TALUK,
TUMKUR DISTRICT-572201.
8. SRI C. NAGARAJU
S/O. CHANNABASAVAIAH,
AGED 40 YEARS,
R/O. CHATTANAHALLI VILLAGE,
TIPTUR TALUK,
TUMKUR DISTRICT-572201. ... RESPONDENTS
(BY SRI A. K. VASANTH, AGA FOR R-2 TO R-4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDER DATED 02.02.2016 PASSED BY THE HON'BLE
PRINCIPAL CIVIL JUDGE AND JMFC AT TIPTUR, IN ELECTION
PETITION NO.1/2016 AT ANNEXURE-E AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING :
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ORDER
The petitioner has challenged the legality of the order dated 02.02.2016, passed by the Principal Civil Judge & JMFC, Tiptur, whereby the learned Civil Judge has dismissed the election petition filed by the petitioner, wherein the petitioner had challenged the election to the Tadasur Gram Panchayath.
2. Briefly the facts of the case are that the election to the Tadasur Gram Panchayath was held on 02.06.2015. The petitioner had contested the election as a General Candidate from the Chatnahalli Constituency. After the election was over, counting was held on 05.06.2015. The petitioner claims that during the course of counting, there was power cut for fifteen minutes between 6.15 p.m., to 6.30 p.m. According to him, he had secured 305 votes. However, at the end of counting, the Returning Officer has declared that he has secured only 297 Votes, whereas, the respondent No.8, Mr. C. Nagaraju, had secured 301 votes. Therefore, Mr. C. Nagaraju was declared as a winning candidate. Since the petitioner suspected that there were certain illegalities and irregularities in counting of votes, during the power cut, 4 he made a representation to the Returning Officer, and requested that votes should be re-counted. However, the Returning Officer turned down the said request. The petitioner further alleged that during the course of counting, invalid votes have also been considered for the purpose of declaring the respondent No.8 as a winning candidate. Thus, by counting the invalid votes, the Returning Officer has indulged in malpractice. Since the Returning Officer had rejected the petitioner's request, since the petitioner had lost only by a slim margin of four votes, he filed an election petition before the learned Civil Judge. However, by order dated 02.02.2016, the learned Civil Judge has dismissed the election petition. Hence, this petition before this Court.
3. The learned counsel for petitioner has vehemently contended that although the respondent Nos.6, 7 and 8 had filed their objections, they did not examine any witness. Therefore, the learned Civil Judge was not justified in rejecting the election petition. Secondly, the learned Civil Judge is unjustified in rejecting the petition for non-joinder 5 of necessary parties. Therefore, impugned order deserves to be interfered with by this Court.
4. Heard the learned counsel and perused the impugned order.
5. It is, indeed, trite to state that it was the duty of the petitioner to discharge the burden of proof. Since he had alleged that certain irregularities and illegalities were committed by the Returning Officer during the period when there was power cut for fifteen minutes, the same had to be established by the petitioner by adducing cogent evidence. However, despite the fact that, admittedly there were other persons present at the time of counting of votes, the petitioner has not examined any independent witness to establish his case. Besides examining himself, the petitioner has examined his own Election Officer. However, his Election Officer cannot be held to be an independent witness. Therefore, the learned Civil Judge was justified in concluding that the petitioner has failed to establish his case through independent and cogent evidence. The mere fact that respondent did not examine any witness would not make 6 any difference, as it was for the petitioner to prove his case before the Court.
6. According to Section 15 (2) (a) of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 ("the Act", for short), in case the petitioner seeks relief that he should be declared as being elected, he is required to implead all the candidates in the election as party-respondent. Admittedly, the petitioner had sought the said relief from the learned Civil Judge. The learned Civil Judge has noticed the fact that despite the fact that there were ten candidates who were in the fray, the petitioner had impleaded only three of them as party-respondents. Thus, the petitioner had failed to implead the other six candidates who were also in the fray. Therefore, the learned Civil Judge was certainly justified in concluding that the petitioner has not fulfilled the requirement of Section 15 (2) (a) of the Act. Since the necessary parties have not been arrayed as party- respondents, the learned Civil Judge was justified in dismissing the election petition.
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7. For the reasons stated above, this Court does not find any merit in the present writ petition. It is, hereby, dismissed.
Sd/-
JUDGE Np/-