Karnataka High Court
Smt. Fathima Tabsum W/O Sayyed Azmal vs State Of Karnataka on 3 September, 2010
Author: Ashok B.Hinchigeri
Bench: Ashok B.Hinchigeri
IN THE HIGH COURT OF KARNATAKA AT BANGALORE__.__
DATED THIS THE 033° DAY OF SEPTEMBER 2010'if-~.._°-3--_
BEFORE V
THE HON'BLE MR. JUSTICE ASHOK B. HINC'HI?{3jjE.RI'~f:
WRIT PETITION NO. 27684 of20I.0'A(jLBaELE)-.. 7
BETWEEN:
SMT. FATHIMA TABSUM
W/O SAYYED AZMAL
AGED ABOUT 32 YEARS . ' L
H NO. 1098, OPP. KALAMMA TE. PLE:_ 2;; ,
CHANNAPATNA
RAMANAGAR DISTRICT _ PETITIONER
(BY SR1 JA'YA'}:<U'MA S IIRATIL; SE'NI'OR"A DVOCATE
FOR 'M['S__JAY;iYKUMA_f2 _P'A_TII_:_ ASSOCIATES)
AND: .... "
1. STATE 'OF KAR[NiATf5'K:A P. '
DEPARTMENT OF URBAN 'DEV'»Ei;OPMENT
M S BUILDING, BANGALORE-
REPRESENTED BY ITS SECRETARY
2...~ . L_ DE PU*'IfYECOMMISS'ION.E.R'
"CHACNNA"PATNA,._ RAMANAGAR DISTRICT
3. -ASST.' CCc5MM'IS.S.IONER/RETURNING OFFICER
RALM'NTAGA'R'.S.UB DIVISION
RAMANAGAR
fJj'_j44__'<..CHANNA,PATNA TOWN MUNICIPAL COUNCIL
' ,vCHANNAPATNA, REP BY COMMISSIONER
_ RESHMA BANU
'' W;?O SAYYED MAZAR KULMIRI
AGED ABOUT 34 YEARS
UPPERDAIRA, CHANNAPATNA
RAMNAGAR DISTRICT RESPONDENTS
(BY SR1 R DEVDAS, AGA FOR R1 TO R3, SR1 M R RAJAGOPAL, ADVOCATE FOR R5) THIS WRIT PETITION Is FILED UNDER ARTIcLEsgv..2.26V,A'ré'D':27 OF THE CONSTITUTION OF INDIA PRAYING TO QL.iAs'i.---ATHE-ORD-E_Rs, DATED 27.08.2010 AND DATED 27.08.2010 VIDE AN~NExeC..AND D1 RESPECTIVELY ISSUED BY R4 AND ETC.
THIS WRIT PETITION COMING ON FO:R..'RiRLYy.':
THE COURT MADE THE FOLLOWING: ' ' «. "
Q R D The petitioner has called _in._to ;q;restiio.n';i the election of the fifth respondent as._the vPresiclent_of'llithgiggfiannapatna City Municipal Council.
2. The..facts._VA.ol5't:h»e lln'---briei' are that the Returning Officer iSSl.i€:d the Vcalefnda.ri"'of_:xenjents on 16.8.2010 for electing the President and the V'iVce4Pr:ésident of the said local body. As per the..«§3a'idi'*calendar_o_f_.a-vents, the filing of the nomination D-a_Dei;§,'theirvA_scrlijtiny, withdrawals and holding the elections, if nece.ssary; on 25.8.2010. The petitioner and the fesponde'nt iil:o.S'ffiled their nomination forms for the office of the atPresideiitzofvlthe said local body. On scrutiny, their nomination papers were found to be valid. However while scrutinising the nonfination of a 3"' candidate, namely, Smt,Asmatt Unnisa, the ..W_OVh'eated discussions took place. In the ensuing scuffle~like H351 situation, the two accepted nomination forms of the petitioner and the 5"' respondent were snatched by the local MLA."-.H_e.fgga've them to Smt Asrnatt Unnisa. The said Asmatt;-«'_ another councilor, Sri K.Basavaraj torethem .i'ntoi"pie;tes..'in the? presence of other counciliors. As the S:i'€TlJai'fA_iAO'i'iV was_getti.ng'f_i'oijt'f*of control, the Returning Officer'f._'a-tijourn'ed "hie-'eting to"
26.8.2010. In the meeting held go.nu:25.8....201.0}'the respondent No.5 was eiected unanimouslgtas'the~.'E?re'sirje,nt»» of the said CMC.
3. Sri Jayaiktwar Senior Counsel appearing on fs--uh:nits that if the Council meeting con=vene'd:':for;é:th3e-- o_'f"electing a President is to be adjourned, to be resumed on the adjourned gdatefiat which they were interrupted on the.gvpre\.ifgijdus__gAday. notiin dispute that the petitioner's no'mi'n.at'ienA 'iorrn_'wa's.scrutinized and found valid, the respondent oug'ht to taken her as one of the candidates in the _F.._election heidiogn the adjourned date of /26.8.2010.
"*x_4..,_Ti'ie learned Senior Counsel submits that the notice . 'V:..'fi><'ifng__t:'rie meeting on 26.08.2010 was affixed on the door of the 'petitioner's house at 11 O' clock late in the night on 25.8.2010. FISH.
4 He submits that there was no need for the petitioner to fiie the nomination form once again. Without prejudice to this submission, he contends that it wouid not have been possibie for the petitioner to fiie the nomination form because the-._»caste certificate (showing that she belongs to BCA) is reVq.uire'd4'..'to'be produced aiongwith the nomination form.
obtained from the concerned function'ary'v.ia_s"--,pr.odAi.i'c«e_d:Von the i previous day and it was destroyed. If A:the:"petitio.ri_e.r"wereetocfiieu the nomination form not accompa-nied by the'caste'1.:ce'rtii°icate. her nomination form wouid have .~ijeen..'reVj'ected. A 'That is why 10 days' notice for convening for electing the President and Vice' iiresidecntirisprescribed.
5. Sri the iearned counsei for the
1..-res_vpon4:je«ntE Vsuubmits that the question of granting any in--teri,m" order=of.jstay wouid not arise in a case of this nature, becaus.e'*the re--Spo.ndent No.5 has already assumed the charge as 'the Presidentofxthe CMC, Channapatna on 26.8.2010. The same is{i_i'ni accordance with Ruie 14 of the Karnataka Municipaiities 'V"~i.___:(i5'resident and Vice~President) Election Rules, 1965. He brings my notice, the interim prayer is for staying the impiementation of the order, dated.27.8.201O and an further 33% proceedings. According to him, the order, dated 27.8.2010 does not call for any implementation. It is already acted
6. Sri Rajagopal has also raised a threshold:
maintainability of this petition. WhenfRiil'e' «I,,5'~«.of-:th:e'>Ka.rna'tai{2a Municipaiities (President and Vice--Pre.sid'e_nt) iéiectironnFiule's',., 1965 . s provides for the filing evlection. .,r;etitjoVnV before the District Judge, the petit§oner"i's'iVhettjt.istirieti"'in'i filing this petition. On the short _t.h:e.AA.';ay'ailability of the aiternative remedy,i-ithiis pietitilori iisiiiilablveljto be rejected, so contends Sri Ra;?'a'go_pai';''*!__ ,
7. is not the case of the petitioner she of the adjourned date of meeting. ,.--Nowhere"i'nn7'thAe- memorandum of the writ petition, there isl"a.r§yi.-.a:.x;e'rrifient «thatshe was not aware of the holding of the' i--spe_ciai ...n=ieetVii.rg:.1~~on 26.08.2010. As the petitioner was V7.::"~"avdmitted«.i,y no-t~ preisent on 26"', she has no locus standi to file v~.vrAit,petitio'n. If she had participated in the election process, *..4'*--.then' .o'nl.y_f.she can have some grievance over the proceedings.
that out of 33 members of the local body, all the 14 'members belonging to the petitioner's group were absent. 3314.
8. Sri R.Devdas, the learned Additional Government Advocate appearing for the respondent Nos.1 to 3 subrnitgswgithat there are no averments whatsoever in the writ petition ':.to*w_is.y"= the petitioner is not preferring the election.peti'tiVon"a.nd.wh_y. she is filing the writ petition. He submits ;'t4hat..'_'asfV the not attended the Council meeting._:onV_ for"
the purpose of eiecting thePresident,"vsheycannfotvvchaiilenge the election of the respondent"N'o,.--5,'--._a§;."}:he'fiérehsrident of the said CoundL
9. If a the President has to be put off of the outbreak of violance, be resumed from the stage at which it was the propriety of the things, the res~pondegri't ARetu'rrii'--n~g"Officer ought to have straight away proceeded.gto..,;co,ri<fuct the election. However, the respondent issued a.fr.es_h.r:;ca¥endar of events starting from the point of _fl-..fi_l,i'r"ng_y the nomi;.nation forms. Alternatively, it was also open to 5_'_'hi,m~~.lto:tVre*at and deciare that the petitioner and the respondent V' V.'j~:\l.o'.'5 are already in the race, as their nomination forms were s,cru.tinized and found valid. If he had foreseen any difficulty in decfaring so, he would have announced in the meeting held on 6314.
the original day (238.2010) that the nomination papers_.___are to be filed again.
10. But then these are the desirabie courseisvjofvvactionu. V' The question is whether this Courtjshouid ground that the respondent No.3 oug'hth"to haxregopt'ed*;fovrV'Va».g better course. If the petitioner"'~«werre to'=b_e"-pjreswevntWon the adjourned day (26.8.2010)*i~n_flthe=irrieeitingi-and insisted that she be permitted to contest .AA.'ac_ceptance of the nomination paper. to re--file her nomination form" certificate, different issues would have.»faiiengjfor;':Eo'i1s:i't>i'¢TEiti'on"}""' the petitioner has not chosen to day and as it is not the petitioner's'casethat aware of the adjourned date of arn afra'i'd--------n'o relief can be given to the petitioner inVthesproce'e.d:i'ngs.:under Article 226 of the Constitution of India. aiiegediyé.iin.pAiiied rejection of the petitioner's nomination L.,.piape'r andfkthe alieged improper acceptance of the fifth '._'_"'resp.ondVe'n«t's nomination form are to be raised in a duly '' 'ffco'n'stituted eiection petition before the District Judge. HEM.
11. In the result, I reject this petition keeping'.--all the contentions open and reserving the liberty to the petiVti'of"r;ervv.to avail of the remedy of filing the election petition.--:f::"Further"it_'"'_iesh"
made clear that the reasons given.herei»n...and.'_'the''o*aservaitions ' made herein are only for the purpose petition. The District Judge oirfithge Election' *ifribi1'n'a'l sjshaliw' adjudicate the election petition, if.««--.tiled,"'--~..igndepend.ently of the reasons shown and the o'b'servatioin:sh.erein. If the election petition is éfiiecl date of the issuance of the___ of2."tojday'sWVorder, the District Judge/Election__V"i'ri"bd:'iaaicshaljly' of on merits without raising the Zissu-e' "giving this direction, I am fortified by thefiidgvmwengtdltheéél-ion'ble Supreme Court in the case org " eAoANbA.1 1111 MRAJESHWARI v. BODAVULA I-l:'ia\l_1Vl.lAl\'v'i'.¢\Vl':Yl-'~'tiv\jlAliAld.A4:.V'8.OTHERS, reported in AIR 1997 sc 1541. The re!e'\}a.nt" p'air.ag1raph of the said judgment is extracted v'.:*ghereinbelo"w:
V. 'A .ri..4_."3'."'The remedy is statutory remedy and lnnitation is one of the candidates to entertain l "election petition. By judicial order the limitation A. cannot be nullified. In support thereof, he placed FISH 'Va 9 reliance on the judgment of this Court in Union of India v. Kirloskar Pneumatic Co.Ltd., (1996) 4 SCALE 317 : (1996 AIR SCW 2398). We find no force in his contention. It is not his case that High Court lacks jurisdiction to entertain ' petition against the election of a Sarpanch:'''andgt 9' declaration of the result of:=.._the~~electionofif-a_ Sarpanch, etc. The High Court e§te_rci:=ing:'its.,;poVwei;- under Article 225 of the Constritution' declined to interfere in the electifcin' since alternative remedy of filing election}petition"andiadjudication has ibieen pro'vi'ded,gg'ii:.:the relevant statutory rules. Far from " the High Court has no jun"sdit:t"ion, High Court exercised self restraint in t -oifthe power under Article 226 and directed r the avail of alternative remedy. In this case,"'*Vadrnittedly, the elections of Sarpanch was held 9' and tesult was declared on June 24, 1995 and the writ petition was filed on June .25, 1995. Power of H the Government on the process of electoral rolls was challenged in a batch of writ petitions. The writ
-FISH.
petition in question is also one of such writ petitions. Under the circumstances, the High Court though«jit.i expedient that since elections were already hi".
disputed questions of facts would.be._can#/asst-:-d; election petition as provided in :Rule_:A3':ofihthe 7}' the High Court rightly deeiihea to"investigate""into:
disputed question of the facts.uand'reAfused' topgoii into the question relagatiii-gtp--the_' .. pursue the remedy of election the High Court has the election petition__.within ii;-'2;ret.' the date of disposal of the writ' directed the Tribunal not to into of- limitation and instead decide the matter_ on merits. "
"'12}'No=ordér.:a_s; to costs.
bvr Edge