Karnataka High Court
Neelasekhara Raju vs Returning Officer on 29 August, 1986
Equivalent citations: ILR1987KAR224
ORDER Chandrakantaraj Urs, J.
1. In this Writ Petition, the Petitioner-Neelasekhara Raju, has questioned the legality and competence of the 2nd respondent-State of Karaataka to exercise its power under Sub-section (1) of Section 38 of the Karnataka Municipalities Act, 1964, (hereinafter referred to as the Act) in cancelling the election scheduled for the 4th Division of Harihar Town Municipality as per Notification No. DPAR 350 EEM 83 dated 18th December, 1985, (Annexure H) as well as the legality of the consequential announcement made by the Assistant Returning Officer of. Town Municipal Council, Harihar, as per Annexure-G dated 20-12-1985. The prayer in the Writ Petition is for quashing the impugned notification and the consequent announcement and for a direction that election be held in accordance with the calendar of events issued earlier as per Annexure-E. There is a further prayer that one other calendar of events issued in March, 198C at Annexure-J also should be quashed as a consequential relief.
2. On behalf of the respondents namely, the Returning Officer, the State of Karnataka and the Deputy Commissioner, Chitradurga District, the statement of objections has been filed to which reference will be made in the course of this order. Similarly, there are certain interlocutory applications seeking the impleading of one or the other contesting candidates to the election under one or the other of the calendar of events issued which have remained undisposed and which will be disposed of in the order made hereafter.
3. The notice of election under Rule 8 of the Karnataka Municipalities (Election of Councillors) Rules, 1977, (hereinafter referred to as the Rules) for the election of the Municipal Council of Harihar Town was issued by the Returning Officer on 28-8-1982 when more or less elections to most of the Town Municipal Councils in the State were held. But that notice of election was stayed by this Court in W.P.No. 32943/1982 by its Order dated 23-9-1982. But the stay was confined to the 4th Division only with which we are concerned in this Writ Petition. However, in W.P.No.31938/i982, by an interim order made on 24-9-1982 the elections generally for that Town Municipal Council was stayed. Again by an order dated 29-9-1982 made in W.P. No. 34636/1982 another stay was granted of the election. However, on 24-1-1983 this Court held that the stay order made on 24-9-1982 had become inoperative. On 7-4-1983 this Court vacated the Interim order of 29-9-1982 granted in W.P.No.34636/1982. But the interim order made on 23-9-1982 in W.P.No.32943/1982 was not vacated. In the result, elections which had been stayed generally in all the divisions of Harihar Town Municipal Council came to be held on 10-4-1982 except in the 4th Division. Writ Petition No. 32943/1982 came to be dismissed on 16th August, 1984. As a result of that, date of polling for the election to the 4th division of Harihar Town Municipal Council was fixed for 20-10-1985 nearly a year and two months after the Writ Petition came to be dismissed. However, soon after that notice, one of the candidates contesting from that division died on 15-10-1985. Therefore, the election for this ill-fated division of the Harihar Town Municipal Council came to be countermanded as per Rule 28 of the Rules. Consequently, the Returning Officer issued fresh calendar of events on 20-11-1985. The petitioner whose nomination had been accepted in response to the very first notice of election or calendar of events issued did not file any fresh nomination in response to the notice dated 20-11-1985. However, in terms of the proviso contained in Rule 28 of the Rules, he was also considered a candidate for the election to be held pursuant to the calendar of events issued on 20-11-1985 as evidenced by Annexure-E to the petition. Thereafter, two or three days before the scheduled date namely, 22-12-1985 the Government cancelled the election as per impugned notification Annexure-H purporting to exercise its power under Section 38 of the Act. Consequently, Annexure-G was issued by the Returning Officer of the Town Municipal Council, Harihar.
4. The reasons stated for the cancellation of the calendar of events or notice of election under Rule 8 of the Rules in the impugned notification is that the additional list contemplated under Section 14(1) of the Act had not been prepared at all and therefore in order to avoid the resulting illegality in the conduct of an election without the voters list of the division, the Government was forced to cancel and direct steps to be taken to prepare the voters list of the division. Apparently, after such list was prepared, the notice of election or calendar of events came to be issued in March, 1986 pursuant to which several candidates filed their nominations as evidenced by Annexure-M. The final list of contesting candidates at Annexure-F did not contain the name of the petitioner for the simple reason that he did not file his nomination pursuant to the notice of election issued in March, 1986. Aggrieved by the same, he has moved this Court on 5-4-1986 inter alia contending :
(1) that his name should have been included in the list by virtue of the proviso contained in Rule 28 of the Rules ;
(2) that the exercise of power by the State Government under Section 38 of the Act is incompetent, without jurisdiction and illegal as there were no good reasons for the cancelation of the election notified in November, 1985.
5. Therefore, if the cancellation of the election in 1985 was bad then it necessarily follows that the notice of election issued in March, 1986 was ipso facto incompetent and liable to be set aside.
6. As against this, the statement of objections filed by the respondents sets out the various dates on which the notices and notifications came to be issued since 1982 as Well as the history of Writ Petitions concerning this Town Municipal Council in this Court. It is contended that the reason given in the impugned notification at Annexure-H is a good and valid reason on the basis of which the Government has legitimately and competently exercised its jurisdiction to cancel the elections as in the absence of a valid list of voters of the division, no election could be held. Attention of the Court has been drawn to Sub-section (1) of Section 14 of the Act which provides for the preparation of the voters list of the division.
7. In the light of the above pleadings, Shri R. Gopal, Learned Counsel appearing for the petitioner, made two propositions. Firstly, that the Government under Section 38 of the Act could not cancel the election for the reasons given in Annexure-H having regard to the language of Section 14 of the Act. The second proposition advanced to further the contention is that having regard to language of Section 14 of the Act and the decision of the Supreme Court in the case of State of Karnataka and Ors. v. G.Nagappa and Ors., the electoral rolls could not be altered after the notice of election or the calendar of events for the election had been published.
8. It would be convenient to take up the second of the contention first and examine its merits, There is no doubt that in Nagappa's case supra the Supreme Court did make an observation that till the ejection process has commenced by the issue of notice fixing the calendar of events, there should be no reason why designated officer should not be entitled to rectify such defect in the list of voters and bring the list of voters in conformity with the electoral roll. But once the calendar of events is published and the election process has begun, it was extremely doubtful whether any changes could be made in the list of voters for the purpose of setting right any such defect. That observation is binding on this Court. What this Court should notice is that the law since the decision was rendered by the Supreme Court has been substantially altered. The Supreme Court decided that appeal on 21-7-1975 at which time Section 38 of the Act was worded very differently and the ambit of power, of interference and regulation was far less than what the State Government has been given by the amendment made in 1976 by Amendment Act 83 of 1976. What was power of supervision with no power to cancel election notified was replaced with most stringent powers of regulation including the power to cancel the election announced for good and sufficient reason. The change in the width of power becomes evident if the opening sentences of the Section as it existed before the amendment and as it is after the amendment are compared and it is as follows:
"38. Power to make rules regulating the election of councillors.- The Government may, by notification and after previous publication, make rules to provide for or regulate all or any of the following matters for the purpose of holding elections of councillors under this Act, namely :
XX XX XX XX "39. Contract of elections -- (1) Every election of councillors shall be subject to the control and supervision of the Government and it shall be lawful for the Government to issue directions regarding all matters connected with the election including directions for cancellation of the calendar of events or postponement of the poll."
The constitutional validity of the amended Section came to be challenged in this Court. This Court in the case of Shri Benakappa Bhimappa Bannada and Ors. v. State of Karnataka and Ors., ILR (Karnataka) 1979 (2) 1772 upheld the constitutional validity of that Section. What persuaded the Division Bench in Benakappa's case, ILR (Karnataka) 1979 (2) 1772 was an earlier ruling of this Court. In Doddabanumanthaiah and Ors. v. The State of Karnataka by its Secretary and two others, which following the decision of the Supreme Court in the case of P. J. Irani v. State of Madras, had held that the power exercisable in relation to an election, it had to be assumed that the Section itself contained necessary guide lines in view of the object with which the said provision was enacted. Therefore, the Court was of the view that the power had to be exercised by the State Government having regard to the policy and object of the provision. When the policy and object of law are clear, it could not be said that the law suffered from want of guidance.
9 From the extracted portion of Section 38 of the Act as amended, now it is clear that every election of councillors shall be subject to the control and supervision of the Government and it shall be lawful for the Government to issue directions regarding all matters connected with the elections including the directions for cancellation of the calendar of events or postponement of the poll. Sub-section (2) of Section 38 of the Act (which Is not extracted) confers rule making power on the State Government for the purpose of holding the elections of councillors under the Act. A combined reading goes to show that there is abundant guideline In the Act itself in the matter of regulating and controlling the elections. No doubt, as rightly argued by Shri Gopal, Sub-section (1) of Section 38 of the Act does not itself contain any guidance but like all powers exercised, the power under Section 38 of the Act also must be exercised for valid reasons. The power itself cannot be held to be arbitrary because guidance to exercise that power is not stated in the Section. But if it is exercised without valid reason then the resulting action would become arbitrary and liable to be struck down by this Court. This proposition does not require any judicial authority though they are not wanting.
10. In the instant case as evidenced by the stand taken by the Government ins reasons for issuing the notification as Annexure-H cancelling the election was that there was no proper list of voters for the division at the time when the notice of calendar of events issued afresh after having countermanded the election scheduled earlier on account of the death of one of the candidates i.e., in November, 1985, notice of election or calendar of events was issued without there being a valid list of voters of the division. Therefore, the question to ask is what is a valid list of Voters of the division. The answer unfortunately once again depends upon the provision contained in Section 14 of the Act but inserted by way of amendment subsequent to the elections to the Town Municipal Council held generally according to the notices of election Issued towards the end of the year 1982 in Karnataka State. At the time when the decision was rendered in Nagappa's case by the Supreme Court, Assembly list current at the time which was applicable to the division in the Municipality was the electoral roll of the division. But, however, in 1983 the Legislature amended by Act 12 of 1983 that Section and the amended Section reads as follows :
"14. List of voters.-- (1) The electoral roll of the Kartataka Legislative Assembly for the time being in force for such part of the constituency of the Assembly as is included in a division of an unicipality (along with the additional list of voters prepared under Sub-section (1A) relatable to such division) shall, for the purpose of this Act, be deemed to be the list of voters for such division."
After the amendment it is not only the electoral roll of the Assembly but also the additional list that was required to be prepared in terms of Sub-section (1A) of Section 14 of the Act together with the electoral roll for the Assembly constituted list of voters for such division. There is really no dispute that till the notice of election in March 1986 was issued, there was no additional list prepared as mandated by the Amendment Act of 1983. True, the original election to Harihar Town Municipal Council was announced and notified as early as the end of 1982 Election did not take place on account of the interim orders made by this Court. When interim orders came to be vacated, in so far as they related to other divisions but the 4th division election was held from the stage at which the calendar of events earlier issued had come to be stayed. Therefore though the elections took place in 1983, it took place in accordance with the law as it existed when the notice or calendar of events was issued in 1982. Similarly, when stay came to be vacated with reference to the 4th division also in the other Writ Petition, notice fixing date of poll was indicated pursuant to the calendar of events that had been issued by the State Government in 1982 and stayed in 1982 by this Court in the various Writ Petitions of that year to which reference has already been made. Normally, if the election had taken place as announced on 20-10-1985 that election could not have been held to be illegal because there was no voters list in accordance with the amended provisions for that division.
11. Unfortunately, for the petitioner Rule 28 of the Rules provides that when an election to the Town Municipal Council is countermanded, the election that has to be held afresh shall be an election anew. It is therefore useful to extract Rule 28 of the Rules :
"28. Death of candidate before poll. -- If a contesting candidate dies and a report of his death is received before the commencement of the poll the Returning Officer shall upon being satisfied of the fact of the death of the candidate countermand the poll and report the matter to the Commissioner and all proceedings with reference to the election shall be commenced anew in all respects as if for a new election.
Provided that no farther nomination shall be necessary in the case of a person who was a contesting candidate at the time of the countermanding of the poll.
Provided further that no person who has given a notice of withdrawal of his candidature under Rule 15 before the countermanding of the poll, shall be ineligible for being nominated as a candidate for the election after such countermanding,"
12. From the above it is clear that though the nominations are saved, the election has to be a new election. The expression fresh election anew acts as double emphasis to indicate that countermanded election has to bring about a now election of the councillors for the division in which the countermanding has taken place. If new election has to take place in terms of the amended provision, it has to conform to the law on the date a new election has to commence.
13. If that is clear then from the combined reading of Section 14(1) and (1A) of the Act and Rule 28 of the Rules really indicates that the voters list in accordance with the amended provision of Section 14(1) of the Act has to be in existence for the beginning of a new election. If that is the reason why the new election had been cancelled then this Court must lean in favour of the action being in good faith.
14. Therefore, apart from there being no assistance to the petitioner from the decision of the Supreme Court in regard to change of list of voters in Nagappa's case by virtue of the amendments mentioned, it was imperative that the Returning Officer had a valid voters list of the division before he issued fresh notice of a new election in place of the countermanded election. That, from the narration of events has been possible only prior to the issuance of March, 1986 notice of calendar of events.
15. In this view of the matter, the exercise of power by the Government under Section 38(1) of the Act nor the reasons given for cancelling the said election can be held to be bad.
16. In the result, both the propositions advanced for the petitioner are liable to be rejected and they are so rejected. The petition must therefore fail. If the petitioner did cot file nomination afresh he cannot make a grievance that his nomination was not to be found in Annexure-F, the list of contesting candidates in the new election held after the earlier election was countermanded. Therefore, the proviso would not come to the assistance of the petitioner for the reason that the election scheduled to be held on 22nd December, 1985 came to be cancelled on account of the reason that there was no valid list of voters in the division and was not the election in respect of the countermanded election that did not take place. He should have been advised properly to file a fresh nomination. Not having done that, he cannot blame any one but himself..
17. The Petition is dismissed. In the circumstances of the case, there will be no order as to costs.