Karnataka High Court
Gurudas S/O Shiromani vs The State Of Karnataka And Ors on 29 November, 2021
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE M.I.ARUN
WRIT PETITION NO.202176/2021 (LB-ELE)
Between:
Sri Gurudas S/o Shiromani,
Age: 26 years,
Occ: Social Worker and Agriculture,
R/o #66, Amadalpad,
Tq. & Dist : Bidar - 585 403.
... Petitioner
(By Sri Jairaj K. Bukka, Advocate)
And:
1. The State of Karnataka,
By Chief Secretary to Government,
Government of Karnataka,
Vidhana Soudha,
Bengaluru - 560 001.
2. The State Election Commission,
Represented by Deputy Chief Electoral Officer,
DPAR (Election), Cunningham Road,
Vasanth Nagar, Bengaluru - 560 052.
3. The Principal Secretary to Government,
Panchayatraj and Rural Development,
M.S. Building, Bengaluru - 560 001.
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4. The Regional Commissioner,
Kalaburagi Division,
Kalaburagi - 585 401.
5. The Deputy Commissioner,
Bidar - 585 401.
6. The Election Commission of India,
Represented by its Secretary,
Nirvachan Sadan, Ashoka Road,
Pandit Pant Marg Area, Sansad Marg Area,
New Delhi, Delhi - 110 001.
... Respondents
(Sri Mallikarjun C. Basareddy, HCGP for R1, R3 to R5;
Sri Amresh S. Roja, Advocate for R2;
Sri D.P. Ambekar, Advocate for R6)
This Writ Petition is filed under Articles 226 and 227
of the Constitution of India, praying to issue a writ in the
nature of certiorari quashing the impugned Gazette
notification passed by the 6th and 2nd respondent DPAR 15
CHUVIPA 2021 dated 16.11.2021 vide Annexure-F and etc.
This petition coming on for Preliminary Hearing this
day, the Court made the following:
ORDER
The petitioner has filed the instant writ petition with a prayer to quash the election to Legislative Council of the State of Karnataka sought to be conducted as per the notification dated 16.11.2021 bearing No.DPAR 15 CHUVIPA 2021 (Annexure-F). However, in the course of 3 arguments, learned counsel for the petitioner submits that he intends to limit his prayer for quashing the impugned notification only to the extent of conducting of election of one MLC seat from Bidar local authorities.
2. The petitioner is a resident of Amadalpad village, Bidar Taluk and District. He is an aspirant for contesting the election from Malegaon Zilla Panchayat Constituency from Scheduled Caste category. As per the impugned notification (Annexure-F), 25 members are to be elected to the State Legislative Council wherein electorates are members of local authorities. One of the said MLC is to be elected from the members of Bidar local authorities. It is the contention of the petitioner that the electorate for the said MLC election consists of Taluka Panchayat, Zilla Panchayat, Municipalities and Gram Panchayat members. Presently, elections have been conducted to Gram Panchayat and Municipalities and they are having the necessary members. But, no elections have been conducted to Taluk Panchayat and Zilla Panchayat and the 4 members who are to be elected from the said Taluk Panchayat and Zilla Panchayat also constitute the electorate. As all the electorates are not there and the petitioner is an aspirant to become a Zilla Panchayat member and if elected would be part of the electorate, the petitioner has filed a instant writ petition contending that the MLC election should not be held till Taluk Panchayat and Zilla Panchayat elections are completed and on the said ground, has sought for setting aside the MLC elections to be conducted for one MLC seat from Bidar local authorities.
3. Per contra, learned counsel for respondent No.6 submits that there is a need to fill up the post of the members in the State Legislative Council, as 1/3rd of the members are to retire on 05.01.2022. Though the voters are Zilla Panchayat, Taluk Panchayat, Gram Panchayat and Municipalities members, due to pandemic Covid-19, elections to Taluk Panchayat and Zilla Panchayat could not be completed in time. However, election to Gram 5 Panchayat and Municipalities already being over, the present electorate available is nearly 90% of the total electorate and in the opinion of Election Commission of India, election to the Member of Legislative Council cannot be postponed on the ground that elections to Taluk Panchayat and Zilla panchayat have not been conducted. It is further contended that the petitioner has no locus standi. That, this is not public interest litigation. According to the petitioner, he is only an aspirant, who wants to contest the Zilla Panchayat election. Whether he is going to win or not is not sure. It is not his case that presently he is part of the electorate and his name has been wrongly left out. As he has no locus standi, the writ petition is liable to be dismissed.
4. It is also contended that once calendar of event is declared, the Court should not interfere with the election process. If anybody has got any grievance, the remedy open to them is by way of election petition as contemplated under the provisions of The Representation 6 of the People Act, 1950. Article 329 of the Constitution of India specifically bars the interference of Courts in electoral mattes which includes High Court and Supreme Court and the learned counsel has relied upon the judgment passed by the Hon'ble Supreme Court reported in AIR 1988 SC 61 (The Election Commission of India v. Shivaji and others). On the said ground, he prays for dismissal of the writ petition.
5. The remaining respondents also adopted the arguments of the learned counsel for respondent No.6 and have prayed for dismissal of the writ petition.
6. Admittedly, the petitioner presently is not part of the electorate. He is only an aspirant to contest for Zilla Panchayat election and if he wins, he becomes eligible to vote in the MLC election. This is not public interest litigation. Petitioner presently has no right which is affected by declaration of the MLC election to the Bidar Constituency.
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7. The calendar of events having been published, the Court should not normally interfere in the election process. Article 329 of the Constitution of India reads as under:
"329. Bar to interference by courts in electoral matters.- Notwithstanding anything in this Constitution
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 327 or article 328, shall not be called in question in any court;
(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature."8
8. The Hon'ble Supreme Court in the case of The Election Commission of India v. Shivaji and others (supra), in paragraphs 5, 6 and 7 has held as under:
"5. Part XV of the Constitution contains the provisions relating to the elections. Article 324(1) of the Constitution vests the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of all elections to Parliament and to the Legislature of every State and of elections to the offices of the President and the Vice- President held under the Constitution in the Election Commission. Article 327 of the Constitution provides that subject to the provisions of the Constitution, Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of each House or Houses. In exercise of the power granted under Article 327 of the 9 Constitution Parliament has enacted the Act to provide for the conduct of elections to the either House of Parliament, to the House or either House of the Legislature of each State, qualifications and disqualifications for membership of those Houses, corrupt practices and other offences in connection with such elections and the decision of doubts and disputes arising out of or in connection with the such elections. Article 329(b) of the Constitution provides that notwithstanding anything contained in the Constitution no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.
6. The disputes regarding the elections have to be settled in accordance with the provisions contained in Part VI of the Act. Section 80 of the Act states that no election shall be called in question except by an election petition presented in accordance with 10 the provisions of Part VI of the Act. The expression 'election' is defined by section 2(d) of the Act as an election to fill a seat or seats in either House of Parliament or in the House or either House of the Legislature of a State A other than the State of Jammu and Kashmir. Thus a dispute regarding election to the Legislative Council of a State can be raised only under the provisions contained in Part VI of the Act. Section 80A of the Act provides that the Court having jurisdiction to try an election petition shall be the High Court. An election petition has to be presented in accordance with section 81 of the Act. In view of the non obstante clause contained in Article 329 of the Constitution the power of the High Court to entertain a petition questioning an election on whatever grounds under Article 226 of the Constitution is taken away. The word 'election' has by long usage in connection with the process of selection of proper representatives in democratic institutions acquired both a wide and a narrow meaning. In the narrow sense it is used to mean the final selection of a candidate which may embrace the result of the poll when there is polling, or a particular 11 candidate being returned unopposed when there is no poll. In the wide sense, the word is used to connote the entire process culminating in a candidate being declared elected and it is in this wide sense that the word is used in Part XV of the Constitution in which Article 329(b) occurs. In N.P. Ponnuswami v. Returning officer, Namakkal Constituency and Ors, [1952] S.C.R. 218 this Court held that the scheme of Part XV of the Constitution and the Act seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special Tribunal and should not be brought up at an intermediate stage before any court. Any other meaning ascribed to the words used in the article would lead to anomalies, which the Constitution could not have contemplated, one of them being any dispute relating to the pre- polling stage. In the above decision this Court ruled that having regard to the important functions which the legislatures have to perform in democratic countries, it had always been recognised to be a matter of first importance that elections should be concluded 12 as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections were over so that the election proceedings might not be unduly retarded or protracted. Hence even if there was any ground relating to the non-compliance with the provisions of the Act and the Constitution on which the validity of any election process could be questioned, the person interested in questioning the elections has to wait till the election is over and institute a petition in accordance with section 81 of the Act calling in question the election of the successful candidate within forty-five days from the date of election of the returned candidate but not earlier than the date of election. This view has been reaffirmed by this Court in Lakshmi Charan Sen & Ors. etc. v. A.K.M. Hassan Uzzaman & Ors. etc., [1985] Supp. 1 S.C.R. 493 and in Inderjit Barua & Ors etc. v. Election Commission of India (AIR 1984 SC 1911) (supra). Realising the effect of Article 329 (b) of the Constitution the High Court even though it had by oversight issued an interim order in writ Petition No. 1459 of 1987 on 13 26.9.1987 postponing the last date for withdrawal of candidatures to Ist October, 1987 dismissed the petition by its judgment dated 1.10.1987. The relevant part of its judgment reads as follows:
"The challenge must fail mainly on two grounds. First on the ground that the stage has reached of withdrawals of nominations for the said election which was infact, fixed on 30th but has been postponed because of our orders as on today. Article 329(b) bars every challenge to any election including all the election process which commences from the date of notification in the official Gazette, except by way of election petition under the Representation of People Act. Mr. Chapalgaonkar, appearing for the respondent has relied upon a decision-reported in AIR 1984 S.C. 1911 to support this plea that all election including every election process must be challenged only by way of election petition under the Representation of the People Act."
Having thus dismissed the petition on
1.l0.1987 the Court committed a serious error in entertaining a Review Petition in the very 14 same writ petition on 16.10.1987 and passing an order staying election which had been earlier fixed for 18.l0.1987 till further orders "looking to the mandatory provisions of section 30 of the Representation of the People Act". The High Court failed to recall to its mind that it was not its concern under Article 226 of the Constitution to rectify any error even if there was an error committed in the process of election at any stage prior to the declaration of the result of the election notwithstanding the fact that the error in question related to a mandatory provision of the statute relating to the conduct of the election. If there was any such error committed in the course of the election process the Election Commission had the authority to set it right by virtue of power vested in it under Article 324 of the Constitution as decided in Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi (1978) 2 S.C.R. 272 and to see that the election process was completed in a fair manner.
7. It is true that the Zilla Parishads of Osmanabad and the Latur districts had not 15 been constituted and administrators were functioning in their place. The total voters in the local authorities constituency in question were 577 out. Of which 533 were members of Municipal Councils and 44 were members of the Zilla Parishads. Even if the Zilla Parishads of osmanabad and Latur districts had been in existence the total number of their members would not have exceeded above 110. As such more than 3/4th of the voters entitled to vote in the constituency in question were in existence. The Election Commission had a guideline that if at least 75% of the local authorities in a local authority constituency were functioning and again at least 75% of the voters in the total electorate were available, then the electorate should be asked to elect their representative to the Legislative Council. In the instant case 75% of the total electorate (including the number of members of the Zilla Parishads of Osmanabad and Latur districts who would have been voters had the said Zilla Parishad been constituted) were entitled to participate. Since the existing position in the constituency satisfied the guideline prescribed by the Election Commission, the election from 16 the said constituency had been ordered. It was only on account of the interim order passed by the High Court on 26.9.1987 postponing last date for withdrawal of candidatures from 28.9.1987 to 1.10.1987 and not on account of any mistake committed by the Election Commission the interval between the last date of withdrawal and the date of poll which had been originally fixed as 18.10.1987 fell short of the period of twenty days prescribed by clause
(d) of section 30 of the Act. After the judgment of the High Court was pronounced dismissing the writ petition on 1.10.1987 in order to ensure that there was an interval of 20 days between the last date for the withdrawal of candidatures and the date of poll, the Election Commission had on its own postponed the date of poll to 1.11.1987 and had published a notification in the official Gazette of the State Government even before the Court passed another interim order on 16.10.1987 in the Review Petition. All these changes in the calendar of events of the election in question came about because of the earlier interim order of the High Court. It has to be stated here that it is not the law that every non- 17
compliance with the provisions of the Act or of the Constitution will vitiate an election. It is only when it is shown that the result of the election was materially affected by such non- compliance the High Court would have jurisdiction to set aside an election in accordance with section 100(1)(d)(iv) of the Act. The High Court was in error in thinking that it alone had the exclusive power to protect the democracy. The success of democracy is dependent upon the co-operation of the Legislature, the Executive, the Judiciary, the Election Commission, the press, the political parties and above all the citizenry and each of them discharging the duties assigned to it. Every member of the body politic should play his legitimate role for the success of the democracy. Some times the success of democracy also depends upon the observance of restraint on the part of the constitutional functionaries."
9. Admittedly, in the instant case, nearly 90% of the electorates are there. 1/3rd of the members of the State Legislative Council are stated to retire on 18 05.01.2022. The Government and the Election Commission are required to initiate necessary steps to have the same filled. The Government and Election Commission in their wisdom have opined that the prevailing circumstance is not conducive to hold Taluk Panchayat and Zilla Panchayat elections prior to the MLC election. Furthermore, as already stated above, the petitioner is only an aspirant to contest the Zilla Panchayat election and not an elected candidate and this is not public interest litigation.
10. As observed by the Hon'ble Supreme Court in The Election Commission vs. Shivaji and others's case (supra), every single act of non-compliance with the provisions of the Representation of People Act will not vitiate an election. It is only when it is shown that the result of the election was materially affected by such non- compliance the election can be set aside and that too in accordance with Section 100(1)(d)(iv) of the Representation of People Act. In the instant case, at the first instance, the petitioner has no locus standi itself to file 19 the case and he has not made out a ground which would materially affected the out come of the election.
For the aforementioned reasons, the writ petition being devoid of merits is hereby dismissed.
SD/-
JUDGE LG