Karnataka High Court
Patrusab And Ors vs Santosh & Ors on 10 January, 2018
Author: B Sreenivase Gowda
Bench: B. Sreenivase Gowda
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF JANUARY, 2018
BEFORE
THE HON'BLE MR. JUSTICE B. SREENIVASE GOWDA
W.P.No.208027/2017 (LB-ELE)
AND
W.P.Nos.208042-43/2017(LB-ELE)
Between:
1. Patrusab S/o Peersab Masuldhar
Age: 39 Years Occ: Agriculture
R/o: Srinivas Saradagi
Tq & Dist: Kalaburagi.
2. Santosh Kumar S/o Heera Adey
Age: 31 Years Occ: Agriculture
R/o: Srinivas Saradagi
Tq & Dist: Kalaburagi.
3. Geeta W/o Sunil Killi
Age: 28 Years Occ: Household
R/o: Srinivas Saradagi
Tq & Dist: Kalaburagi.
... Petitioners
(By Sri.M.M.Allur & Sri.Kallbenur &
Sri.G.K.Pyati, Advocates)
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And:
1. Santosh S/o Tarasingh Adey
Age: 76 Years Occ: Agriculture,
R/o: Srinivas Saradagi,
Tq & Dist: Kalaburagi-585106.
2. Anusuyabai W/o Ambaraya
Age: 41 Years Occ: Household,
R/o: Srinivas Saradagi,
Tq & Dist: Kalaburagi-585106.
3. Ibrahimsab S/o Maktumsab Ladaf
Age: 46 Years Occ: Social Worker,
R/o: Srinivas Saradagi,
Tq & Dist: Kalaburagi-585106.
4. Parvati W/o Pundalik Rathod
Age: 23 Years Occ: Household,
R/o: Srinivas Saradagi,
Tq & Dist: Kalaburagi-585106.
5. Basamma W/o Bhimsha Mishi
Age: Major Occ: Household,
R/o: Srinivas Saradagi,
Tq & Dist: Kalaburagi-585106.
6. The Returning Officer, Ward No.1 of
Gram Panchayat Srinivas Saradagi
Tq & Dist: Kalaburagi
Now working as Head Master Govt. High
School, Bhopal Tegnoor
Tq & Dist: Kalaburagi-585106.
7. The Deputy Commissioner
Mini Vidhana Soudha, Kalaburagi-585101.
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8. The Tahsildar
Kalaburagi-585101.
...Respondents
(By Sri.R.S.Kadganchi, Advocate for R1;
Smt.Archana.P.Tiwari, AGA for R7 & 8)
These Writ Petitions are filed under Articles 226
and 227 of the Constitution of India praying to issue a
writ in the nature of certiorari and quash the order
passed by I Addl. Senior Civil judge at Kalaburagi in
Election Petition No.8/2016 on dated 07.11.2017,
which is produced at Annexure-F, in the interest of
justice and equity.
These petitions coming on for preliminary hearing
this day, the Court made the following:-
ORDER
Petitioners have preferred these writ petitions seeking a writ of certiorari to quash the judgment dated 07.11.2017 passed by the First Additional Senior Civil Judge at Kalaburagi in Election Petition No.8/2016 as per Annexure `F'.
2. Heard Sri.M.M.Allur, learned counsel for the petitioners, Sri.Hanamant.M.Gilki, learned counsel for respondent No.1 and Smt. Archana P.Tiwari, learned 4 Additional Government Advocate for respondent Nos.7 and 8. Perused the writ petitions and Annexures produced along with the writ petitions.
3. The learned counsel for the petitioners submits that the Trial Court has committed an error in allowing the Election Petition filed by respondent No.1 and setting aside the election of the petitioners held to the post of members of Srinivas Saradagi Gram Panchayath, herein after referred to as Gram Panchayath on bald allegations contrary to the judgment of the Hon'ble Supreme Court in the case of Vadivelu vs. Sunderam and Others reported in (2000) 8 S.C.C. 355.
4. The learned counsel submits that respondent No.1 has not made the State Election Commission as party in his Election Petition and therefore the Election Petition as filed by respondent No.1 is bad for non- joinder of necessary party and is liable to be dismissed 5 on that score alone. The Trial Court without considering the same has committed an error in allowing the Election Petition filed by respondent No.1 and setting aside the election of the petitioners as members of the Gram Panchayath.
5. The learned counsel submits, voters were not misled for want of publication of Form No.10 and have not casted votes in favour of four candidates instead of three candidates as alleged by respondent No.1. However it cannot be a ground for setting aside the election of the petitioners.
6. The learned Counsel submits, that the Returning Officer has held the election to the post of Members of Ward No.1 of the Gram Panchayath in accordance with the provisions of the Karnataka Panchayath Raj Act and the Karnataka Panchayath Raj (Conduct of Election) Rules, 1993, herein after referred to as Act and Rules, for short, and there is no violation 6 of Section 19(1)(d)(iii) of the Act or Rule 17(8) or Rule 69(2)(c) of the Rules
7. With the above grounds, learned counsel prays for allowing the writ petitions by setting aside the impugned judgment passed by the Trial Court at Annexure-F.
8. Per contra, Sri.R.S.Kadaganchi, learned counsel appearing for contesting respondent No.1 submits that there are no illegalities or infirmities in the impugned judgment passed by the Trial Court warranting interference of this Court.
9. Learned counsel submits that the election held by the Returning Officer to the post of members of Ward No.1 of the Gram Panchayat is in violation of Section 19(1)(d)(iii) of the Act and Rules 17(8) and 69(2)(c) of the Rules. Therefore, the Trial Court, considering the above material irregularities committed by the 7 Returning Officer in conducting the election was justified in allowing the Election Petition filed by the respondent No.1 and setting aside the election of the petitioners as members of the Gram Panchayath. With the above grounds, learned Counsel for respondent No.1 prays for dismissal of the writ petition.
10. Learned AGA appearing for respondents 6 to 8, supported the arguments advanced by the learned Counsel for the contesting respondent No.1.
11. As per Section 7(1) of the Act, every voter shall have as many votes as there are members to be elected for the constituency. No voter shall give more than one vote to any one candidate.
12. As per Rule 17(8) of the Rules, immediately after all the nomination papers have been scrutinized and decision accepting or rejecting the same have been recorded, the Returning Officer shall prepare a list of 8 validly nominated candidates in Form 7, that is to say, candidates whose nominations have been found valid, and affix it on the notice board of his Office.
13. As per Rule 19(1) of the Rules, immediately after the expiry of the period within which candidatures may be withdrawn under Rule 18, the Returning Officer shall prepare and publish in Kannada language a list of contesting candidates, that is to say, candidates who are included in the list of validly nominated candidates, and who have not withdrawn their candidature within the said period.
14. As per Rule 19(6) of the Rules, the Returning Officer shall prepare the list of contesting candidates in Form 10.
15. As per Rule 23(1) of the Rules, the Returning Officer immediately after the preparation of the list of 9 contesting candidates under Rule 19, shall cause a copy thereof to be affixed on the notice board of his office.
16. It is not in dispute that pursuant to the notification issued by the Election Commissioner notifying the calendar of events for holding election to the post of Members of Ward No.1 of the Gram Panchayath, petitioners and respondents 1 to 5 had filed nominations for contesting the election held to the post of Members of Ward No.1 of the Gram Panchayath. The 7th respondent - the Deputy Commissioner, Kalaburagi, while issuing the notification dated 04.05.2015 for holding election to the post of members of ward No. 1 of the Gram Panchayath, has clearly specified that out of 4 seats to be elected to the post of members of the Gram panchayath from Ward No.1, one seat was reserved for general category, two seats were reserved for SC, of which, one was reserved for male and another was reserved for female and one seat was 10 reserved for ST female. Against one seat of general category, two persons had filed nominations; against one seat reserved for SC male, two persons had filed nominations and against one seat reserved for SC female, four persons had filed nominations and all these nominations were found to be valid, but no one had filed nominations against one seat reserved for ST female. Therefore, voters were required to elect one candidate from general category, one from SC male and one from SC female and totally they were required to franchise three votes. Since the Returning Officer, immediately after the expiry of the period within which candidates may withdraw their nomination under Rule 18, has not prepared and published in Kannada language, the list of contesting candidates, that is to say, candidates who are included in the list of validly nominated candidates, and who have not withdrawn their candidature within the said period and published it in Form 10, as required under Rule 19(1) and (6) of 11 the Rules, specifying that two persons have contested for one seat reserved for general category, two persons have contested against one seat reserved for SC male category and four persons have contested against one seat reserved for SC female category and no one has contested against one seat reserved under ST female, the voters had gone on casting four votes with an intention to elect one from general category, one from SC male, one from SC female and one from ST female without knowing no one has filed nomination to contest the election against one seat reserved under ST female, as rightly held by the Trial Court.
17. As could be seen from the report of the Court Commissioner, many voters had casted four votes instead of three votes with an intention to elect one from general category, one from SC male and one from SC female and one from ST female without knowing no one has filed nomination to contest the election against one 12 seat reserved for ST female. The Trial Court after carefully considering the Commissioner's report and other oral and documentary evidence on record has found that the election held by the Returning Officer is in violation of Rule 19(6) of the rules and therefore it was justified in allowing the Election Petition filed by respondent No.1 and setting aside the election of the petitioners.
18. Even before this Court, petitioners who got elected as members to ward No.1 of the Gram Panchayath, from the general category, SC male and SC female respectively, have failed to substantiate that the Returning Officer has complied the provisions of the Rules in conducting the election and substantiating their contention that the Returning Officer has published Form No.10 as required under Rule 19(6) of the Rules specifying that two persons had filed nominations for contesting in the election against one 13 seat reserved for general category, two persons had filed nominations for contesting in the election against one seat reserved for SC male and four persons had filed nominations for contesting in the election against one seat reserved for SC female and all those nominations were found valid and no one had filed nominations for contesting in the election against one seat reserved for ST female.
19. The learned counsel for the petitioners has relied upon certain judgments wherein it was held that the election petitions should not be allowed on bald allegations. In the instant case, the Trial Court has allowed the election petition on specific ground that the election held by the Returning Officer is in violation of Rules 17(8), 19(6) and 23 of the Rules. As such, the judgments relied upon by the learned counsel for the petitioners have no application to the facts of the present case.
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20. Further, the Deputy Commissioner is the competent person authorized by the Election Commissioner of the State for holding elections to the post of Members of the Gram Panchayath and he is made as 7th respondent in the writ petition. As such, there is no merit in the contention of the petitioner that the Election Commissioner is not made as party in the writ petition and writ petition is liable to be dismissed on the ground of non-joinder of necessary party.
21. I have carefully gone through the impugned judgment passed by the Trial Court and do not find any illegalities or infirmities warranting interference of this Court.
22. Hence, the following:
ORDER The writ petitions are dismissed as devoid of merit. 15 Even though there has been no stay granted by this Court for the operation and implementation of the judgment of the Trial Court, respondents No. 6 and 7 have not taken steps for holding fresh election to the members of ward No.1 of 19 of Srinivas Saradagi Gram Panchayat and therefore, they are hereby directed to take steps to hold election to the members of Ward Nos.1 of 19 of Srinivas Saradagi Gram Panchayat as expeditiously as possible, in the facts and circumstances of the case.
Sd/-
JUDGE KJJ/Srt/PMR/mgn