Karnataka High Court
H.B. Veerabhadra Goud vs Returning Officer And Tahsildar on 10 July, 1990
Equivalent citations: ILR1990KAR2850, 1990(3)KARLJ217
JUDGMENT Rama Jois, J.
1. In this Writ Petition, in which the subject matter is the election to the office of Pradhan and Upa Pradhan of Alur Mandal Panchayat, Kudligi Taluk, Bellary District, the following questions of law arises for consideration:
1. When any election is stayed by an Interim Order granted by a Court, in any case, and the case is finally dismissed, whether the election should proceed from the stage at which it was interrupted or a fresh Calendar of Events should be issued? And
2. Whether the election to the offices of Pradhan and Upa Pradhan of the Mandal Panchayat of Alur, which is the subject matter of this Writ Petition, should be held confining to the candidates who had filed nomination pursuant to the notice of election issued on 10-4-1987 before the issue of Stay Order by this Court or the election should be held by giving further time to the Members of the Panchayat to file nominations seeking election to those offices?
2. The brief facts and circumstances of the case, which have given rise to the above questions are these: On 10-4-1987 the Block Development Officer, Kudligi, who is the prescribed Returning Officer for holding election to the office of Pradhan and Upa Pradhan of Alur Mandal Panchayat established under the Provisions of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 ('the Act' for short), issued notice of election for holding election to the office of Pradhan and Upa-Pradhan of Alur Mandal Panchayat. The last date and time for filing nomination was 12 noon on 18-4-1987. The data of election was 19-4-1987. At that stage, one Bheema Reddy, who was a Member of the Panchayat, filed W.P.No. 5651 of 1987 before this Court questioning toe legality of the election particularly for the reason that two Members had been nominated under Section 5(3) of the Act to the Panchayat by the Adhyaksha of the Zilla Parishad though it was the Zilla Parishad itself which was empowered to make the nomination. On 16-4-1987, this Court issued an interim order staying the election. The news about granting of stay order by this Court was published in 'Prajavani' - Kannada daily, on 17-4-1987. It appears, a written communication was also given to the Returning Officer about the stay of election. There is, however, dispute as to whether the written communication was handed over at about 12 noon or in the afternoon. But the fact remains that the written communication was given to the Returning Officer. As a result, the election did not take place on 19-4-1987. There were also two other Writ Petitions concerning the same calendar of events. All the three Writ Petitions were disposed of by a common Judgment dated 24-3-1988 by a learned Judge of this Court. Two of the Writ Petitions were dismissed and the operative portion of the order made in W.P.No. 15215 of 1987 reads:
"Accordingly, impugned order/notice, inviting fresh notice of motion for the election of Pradhan and Upapradhan is declared to be illegal and void. Writ Petition is allowed. The 2nd respondent is directed to proceed with the notice of motion received earlier and from the stage at which it was interrupted, fixing a fresh date for the meeting. Rule made absolute."
Against the order made in W.P.5651 of 1987, Writ Appeal 645 of 1988 was preferred. In the said Writ Appeal, the Division Bench made the following order:
1. "This Writ Appeal is directed against the order of the learned Single Judge common to Writ Petitions 5651, 15215 and 15341 of 1987. Two of the petitions came to be dismissed, while one of them was allowed.
2. The petition that came to be allowed had raised the question of legality of the second notice inviting nominations issued by the Returning Officer after this Court had stayed the operation of the earlier notice, which had called upon nominations for the post of Pradhan and Upa-Pradhan to the Alur Mandal Panchayat in Bellary District on the 18th of April 1987, on the sole ground that despite the service of the stay order by an affidavit the second notice came to be issued. The second notice has been quashed on the ground that it was without jurisdiction and a direction is issued that the election may proceed from the stage at which it was interrupted.
3. On perusing the undisputed facts in the order under appeal, it is clear that the election process was stopped at the stage of making the nominations on 18th. Therefore, the Returning Officer has to proceed from the stage of receiving the nomination. In that way, this order does not call for interference by the Appellate Bench."
As can be seen from the above order, the Division Bench stated that by virtue of the interim order made by this Court in Writ Petition No. 5651 of 1988, the election process was stopped at the stage of making nomination and therefore it was obligatory for the Returning Officer to proceed from the stage of receiving the nomination. Sri Nagaraj, who was Writ Petitioner in W.P.No. 15215/ 1987 and who had filed his nomination within time pursuant to the Notice of Motion dated 10-4-1987, was aggrieved by the order of the Division Bench, as by the said order fresh opportunity was required to be given to such of the Members who were desirous of filing nomination on the ground that the election process was stayed even before the filing of nomination was completed. According to Nagaraj, the election process was stayed after the last date and time for filing nomination was over. iN the circumstances, he filed an application before the Division Bench seeking to clarify by way of issuing a direction to the Election Officer to proceed to fix the date for election and to hold election without receiving any further nominations. This application was rejected by the Division Bench. The order reads:
"We have heard the learned Counsel for the applicant. We have carefully perused the order passed by us on 25-4-1988. We have done no more than to give effect to the Writ issued earlier by this Court in W.P.Nos.5651, 15215 and 15341 of 1987. The application is rejected."
Thereafter, on 14-5-1988, a fresh Notice of Motion was issued for holding election to Pradhan and Upa-Pradhan of the Panchayat. The date fixed for election was 24-5-1988. It is not disputed that whenever a date for election of Pradhan and Upa-Pradhan is fixed, under the relevant statutory Rules, the nomination is required to be filed before 12 noon of the previous day. Therefore, according to the aforesaid Notice of Election, the nomination was required to be filed before 12 noon on 23-5-1988. Sri Nagaraj, who was petitioner in W.P.No. 15215/87 and who had filed nomination pursuant to the Notice of Motion dated 10-4-1987, filed W.P.No. 7482 of 1988. The said Writ Petition was rejected by order dated 26-10-1989. The order reads:
"It is stated that the fourth respondent, regarding whose nomination a dispute has been raised in this Writ Petition, is no longer alive. Hence, question of considering his nomination will not arise. If so, the election which has stood at a particular stage has to continue from that stage. With these observations, this Writ Petition is rejected."
As can be seen from the above order, the learned Judge held that as the fourth respondent had died by that time, the Writ Petition did not survive. The learned Judge also stated that the election, which had stood at a particular stage, had to continue from that stage and with the said observation the Writ Petition was rejected.
3. Once again the controversy arose as to the stage at which the election was interrupted. It appears that on the basis of the opinion given by the Government Advocate, a notice was given on 20-1-1990 (Annexure-K) in which it was stated that the election had to proceed on the basis of the Notice of Election dated 10-4-1987 without giving any further opportunity to any one to file fresh nominations and that election would be held on 31-1-1990 confining the election to the candidates who had filed nomination pursuant to the calendar of events dated 10-4-1987. Questioning the legality of the said notice, this Writ Petition has been presented and there has been a stay of the election pursuant to Annexure-K also. The resultant position is that for the last three years and three months, the election to the office of Pradhan and Upa Pradhan has been stalled by successive interim orders taken by one or the other, Member of the Panchayat. It is in these circumstances, the question set out in the first paragraph arises for consideration.
4. It is common ground that whenever an election is interrupted by an Interim Order of this Court and finally the petition is dismissed, the election must proceed from the stage at which it was interrupted. This is the correct position in law consistently applied in all such situations. It should be so because when a process of election had commenced lawfully, was interrupted by an Interim Order granted in a case and ultimately the case is dismissed, the election process must continue, otherwise it amounts nullifying the calendar of events even if finally the challenge failed and such a consequence cannot be permitted. For these reasons, we answer the first question as follows:
"When any election is stayed by an Interim Order granted by a Court in any case and the case is finally dismissed, the election should proceed from the stage at which it was interrupted."
5. Now coming to the second question, in this case there is no doubt that as the election pursuant to the calendar of events dated 10-4-1987 was interrupted by an interim order issued by this Court, the election has to proceed from the stage at which it was interrupted. But, as stated earlier, the dispute in this case is, at what stage the election was interrupted? If the election was interrupted even when there was some time for filing nominations, then the continuance of the election from the stage at which it was interrupted would certainly mean giving time equal to the time lost for filing nominations on account of interim order, and therefore further events in the election must proceed after giving opportunity to file nominations. If on the other hand the election was interrupted after the last date and time for filing nomination was over, then the election has to be held confining to the candidates who had filed their nomination prior to the last date and time fixed for filing nomination, of course giving an opportunity to withdraw to the candidates who are desirous of withdrawing their nominations.
6. In this case, according to the learned Counsel for the petitioner, the election was interrupted even before the last date and time for filing nomination in view of the fact that the last date and time fixed for filing nomination was 18-4-1987 (12 noon) but the stay was granted on 16-4-1987 and it was published in 'Prajavani' - Kannada daily, and according to the learned Counsel for the petitioner even a written communication was given to the Returning Officer around or little earlier to 12 noon on 18-4-1987. The learned Counsel for the respondents, however, maintained that the communication was given around 4.00 p.m. on 13-4-1987 and therefore the last date and time fixed for filing nomination was over and therefore the election has to be confined to the candidates who had filed nomination before 12 noon on 18-4-1987.
7. In our opinion, for two reasons, we are unable to agree with the learned Counsel for the respondents that the election was interrupted only after the last date and time fixed for filing nomination.
(i) Firstly, the Interim Order was granted by this Court on 16-4-1987 itself staying the election and it was published in the 'Prajavani' - Kannada daily news; paper, on 17-4-1987. It is well settled position in law that as far as an order in the nature of stay is concerned, it has to be given effect to, the moment there is knowledge of the stay order (See: MULRAJ v. MURTI RAGHUNATHJI) . Therefore, even excluding the dispute relating to the written communication given to the Returning Officer, there had been knowledge of the interim Order granted by this Court by 17-4-1987 itself in view of the publication in a Kannada daily newspaper. The order of this Court also shows that the Government Advocate had been notified before the Interim Order was granted. It also tantamounts to communication of the interim order to the Block Development Officer.
(ii) Secondly, a Division Bench of this Court, in the order made in Writ Appeal No. 645 of 1988, expressly stated that the process of election was stopped at the stage of making the nominations.
In these circumstances, we answer the second question as follows:
"The election to the offices of Pradhan and Upa Pradhan of the Alur Mandal Panchayat which is the subject matter of this Writ Petition should be held, not confining to the candidates who had filed nominations pursuant to the notice of election issued on 10-4-1987, before the issue of stay order but after giving time to the members of the Panchayat to file nominations seeking election to those offices."
In view of our answer as above, further steps to be taken for holding the election must necessarily include giving time for filing nomination. This could be done either by granting a day's time for filing further nomination and holding the election the next day or by issuing a fresh notice of election in which event those who had filed nominations pursuant to the notice of election dated 10-4-1987 as also those who were desirous of filing nomination who could not file on account of the stay order, would have the opportunity of filing nomination. As this is an election only for the office of Pradhan and Upa Pradhan of a Panchayat; for which only Members of the Panchayat are eligible to file nomination, it makes no difference whether the first or the second alternative is adopted. However, in our opinion, in view of the fact that a fresh calendar of events was issued on 14-5-1988 and W.P.No. 7482 of 1988 filed before this Court questioning the legality of the said notice was rejected, as also on account of lapse of as long a time as three years from the date of the notice of election, issuing of a fresh notice of election would be appropriate.
8. Before concluding, in view of our answer to the first question and in view of the complications which have arisen in this case, we consider it appropriate to state that whenever an election process is stayed pursuant to any Interim Order, the Returning Officer should stop the process after any one of the events in the process of election. It is well known that every election consists of important events, such as,
(i) last date and time for filing nomination,
(ii) Last date and time for withdrawal of nomination and the publication of final list of candidates,
(iii) Date of poll,
(iv) Counting of votes, and
(v) Declaration of results.
Therefore, it is also appropriate that whenever an Interim Order is granted, the Court granting the interim order should specify any one of the events after which the further events in the election should be stopped. However, even in the absence of such specification, an interim Order of stay of election has to be implemented in a reasonable manner, which would not create practical difficulties for continuing the process, if and when it becomes necessary to do so in the light of the Final Order of the Court. Therefore, whenever the election is stayed the Returning Officer should stop further steps after any one of the events is completed and not in the middle and also make known to all concerned and in particular to the candidates, the stage at which the election process was stopped.
9. In the result, we make the following order:
(i) The Writ Petition is allowed;
(ii) The Notice dated 20-1-1990 (Annexure-K) is set aside;
(iii) The first respondent is directed to issue a fresh Notice of Motion for the election of Pradhan and Upa Pradhan of the Alur Mandal Panchayat and to hold election in accordance with law.