Karnataka High Court
Sri Sudeena vs The Returning Officer on 20 June, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR.JUSTICE R.NATARAJ
WRIT PETITION NO.21698 OF 2021 (LB - ELE)
BETWEEN:
SRI. SUDEENA,
AGED ABOUT 30 YEARS,
S/O BACHA POOJARY,
SHRI MANJUNATHA NILAYA,
NEAR SHRI MAHASTHESHWARI
AMMANAVARA TEMPLE,
KODI-KANYANA,
POST KODI VILLAGE - 576 226,
BRAHMAVARA TALUK,
UDUPI DISTIRCT.
...PETITIONER
(BY SRI.CHANDRANATH ARIGA K., ADVOCATE)
AND:
1. THE RETURNING OFFICER,
NO.4, KODI GRAM PANCHAYATH ELECTIONS,
KODI VILLAGE - 576 226, BRAHMAVARA TALUK,
UDUPI DISTRICT.
2. THE TAHASILDAR,
BRAHMAVARA TALUK,
THE ELECTION OFFICER,
NO.4, KODI GRAM PANCHAYATH ELECTIONS,
KODI VILLAGE, BRAHMAVARA TALUK,
UDUPI DISTRICT - 576 226.
3. THE GRAMA PANCHAYATH,
KODI.
REPRESENTED HEREIN BY ITS
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PANCHAYATH DEVELOPMENT OFFICER,
POST KODI - 576 226,
BRAHMAVARA TALUK,
UDUPI DISTRICT.
4. SRI. K. PRABHAKARA MENDON,
AGED ABOUT 44 YEARS,
S/O NARASIMHA KANCHAN
SANJEEVINI,
KODI-KANYANA,
POST KODI VILLAGE - 576 226,
BRAHMAVARA TALUK,
UDUPI DISTRICT.
5. SRI. MAHESH,
AGED ABOUT 45 YEARS,
S/O B. ANANDA POOJARY,
KODI-KANYANA,
POST KODI VILLAGE - 576 226,
BRAHMAVARA TALUK,
UDUPI DISTRICT.
6. SRI. MUTHAPPA SALIYAN,
AGED ABOUT 42 YEARS,
S/O GOVINDA BANGERA,
CHANDANA NILAYA, KODI -KANYANA,
POST KODI VILLAGE - 576 226,
BRAHMAVARA TALUK,
UDUPI DISTRICT.
...RESPONDENTS
(BY SMT.PRATHIMA HONNAPURA, AGA FOR R1 AND R2;
SRI.K.PRASANNA SHETTY, ADVOCATE FOR R4;
R3 AND R5 AND R6 - SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER ON I.A. NO.2 IN MISC.(ELECTION) PETITION
NO.4/2021 PASSED BY THE SENIOR CIVIL JUDGE, KUNDAPURA
DATED 08.11.2021 (ANNEXURE - J) AND ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
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ORDER
The petitioner is aggrieved by an order dated 08.11.2021 passed by the Senior Civil Judge at Kundapura in Misc. (Election) Petition No.4/2021, by which, the election petition filed by the petitioner was dismissed for non-compliance of Section 15 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (hereinafter referred to as 'the Act, 1993' for short).
2. The petitioner and respondent Nos.4 to 6 contested the elections to the respondent No.3 which was held on 29.03.2021. Amongst the seats of the respondent No.3, one seat was reserved for Scheduled Caste (Woman), another for Backward 'A' Woman and one for the general category. The petitioner and respondent Nos.4 to 6 filed their nominations in the general category. The petitioner claimed that he secured 316 votes, while the respondent No.4 secured 315 votes, respondent No.5 secured 130 votes and respondent No.6 secured 268 votes. The petitioner alleged that though he secured 4 highest number of votes, the Returning Officer declared the respondent No.4 as having secured 318 votes and that the petitioner had secured 314 votes as against 316 votes and hence, declared the respondent No.4 as the returned candidate. The petitioner filed an application with the respondent No.3 for recounting of votes which was rejected, following which, the petitioner filed an election petition under Section 15 of the Act, 1993 before the Senior Civil Judge at Kundapura, which was numbered as Misc.(Electioni)Petition No.4/2021. The petitioner sought for the following reliefs in the election petition:
"(i) For a declaration that the petitioner is the returning candidate in the election held to the committee of respondent No.6 Gram Panchayath on 29.03.2021 to Constituency No.1 of respondent No.6 Panchayath in general category.
(ii) For a declaration that the result announced by respondent No.5 declaring respondent No.1 as returned candidate in general category of Constituency No.1of respondent No.6 Gram Panchayath is illegal and void-ab-initio and void consequently to set aside the election result with respect to general category in constituency No.1 above said and to grant such other 5 and further reliefs as the court deems fit under circumstances of the case.
(iii) Directing the respondents or any of the respondents as the Hon'ble Court deems fit to pay costs of petition to the petitioner."
3. The respondent No.4 after filing the counter to the election petition, filed an application for dismissal of the election petition, on the ground that the petitioner failed to comply the mandatory requirement of impleading all the candidates under Section 15(2)(a) of Act, 1993. The trial Court in terms of its order dated 08.11.2021 allowed the application and dismissed the election petition as defective under Section 17(1) of the Act. Being aggrieved by the aforesaid order, the present writ petition is filed.
4. Learned counsel for the petitioner submitted that the petitioner and respondent Nos.4 to 6 were the only candidates who had filed their nominations from the general category and therefore, there was no need to implead the other candidates who had filed their nominations for the reserved seats of Scheduled Caste 6 (Woman) and Backward 'A' Woman. He therefore submitted that Section 15(2)(a) of the Act, 1993 does not mandate that all candidates have to be arrayed as parties. He further contended that the requirement under Section 15(2)(a) of the Act, 1993 arises only when the petitioner claims a declaration that the elections of "All" the returned candidates is void and claims a further declaration that he himself or any other candidate has been duly elected. In the present case, it is contended that the petitioner did not intend to disturb the elections of the candidate who was declared elected as against the reserved category of Scheduled Caste (Woman) and Backward 'A' Woman and therefore, the impugned order passed by the trial Court deserves to be interfered with.
5. On the contrary, learned counsel for the respondent Nos.4 to 6 submitted that the elections was held by a single ballot paper and in view of the Rule 74 of the Panchyat Raj (Conduct of Elections) Rules, 1993 (hereinafter referred to as 'the Rules, 1993' for short), it is 7 necessary that all the candidates are arrayed as parties in the election petition.
6. The learned Additional Government Advocate supported the order passed by the trial Court and contended that Section 15(2)(a) of the Act, 1993 is a mandatory provision, which has to be complied in letter and spirit. Hence, the election petition is bound to be dismissed.
7. Learned counsel for the petitioner relied upon a judgment in W.P.No.84101/2012, where a Co-ordinate Bench of this Court was considering an election petition where only those candidates who had filed their nominations for the 'Backward 'A' Woman' reserved category were arrayed as parties. This Court held that when the result of any or all the candidates is sought to be declared as void, then all the candidates need to be arrayed as respondents in an election petition. The learned counsel for the respondent Nos.4 to 6 relied upon a judgment of this Court in the case of 8 SMT.MAHADEVAMMA VS. M.R.GURUSWAMY AND OTHERS reported in LAWS(KAR)-2016-10-19 and MALLIKARJUNAGOUDA VS. PRINCIPAL MUNSIFF, HUBLI AND OTHERS reported in 1995 SCC ONLINE KAR 23, where Co-ordinate Benches of this Court held that a reading of Section 15(2)(a) of the Act, 1993 is mandatory and has to be complied with. The learned Additional Government Advocate on the other hand relied on a judgment of this Court in H.MOHANKUMAR VS. THE CHIEF ELECTION COMMISSIONER in W.P.NO.53617/2016.
8. I have considered the submissions made by the learned counsel for the parties.
9. In order to understand the scope and purport of Section 15 of Act, 1993, it is appropriate to extract it and the same is extracted below:
"15. Election petition.- (1) No election to fill a seat or seats in a Grama Panchayat shall be called in question except by an election petition presented on one or more of the grounds specified in sub-section (1) of 9 section 19 and section 20 to the 1 [Civil Judge (Junior Division)] within whose territorial jurisdiction the panchayat area concerned or the major portion of the panchayat area concerned is situate by any candidate at such election or by any voter qualified to vote at such election together with a deposit of five hundred rupees as security for costs, within thirty days from , but not earlier than, the date of declaration of the result of the election of the returned candidate or if there are more than one returned candidate at the election, and if the dates of declaration of the results of the their election are different, the last of those dates.
(2) A petitioner shall join as respondent to his petition,-
(a) where the petitioner, in addition to claiming a declaration that the election of all or of any of the returned candidates is void , claims a further declaration that he himself or any other candidate has been duly elected all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and
(b) any other candidate against whom allegation of any corrupt practice are made in the petition."
10. A perusal of the Election Petition discloses that the challenge to the election of respondent No.4 was on the ground that the respondent No.1 had incorrectly 10 counted the valid votes. Section 15(2)(a) of the Act, 1993 indicates that the requirement of impleading all the contesting candidates arises only when in a petition, in addition to claiming a declaration that the election of "all" or any of the returned candidates is "void", a further declaration is sought that he or any other candidates has been duly elected. The reason for such a requirement is obvious since, if an election is declared void and if an additional relief is sought, then every candidate in the fray has a chance of being elected to such a seat. In the case on hand, the petitioner is not claiming the benefit of a reserved seat nor is he claiming that the election of any or all the candidates is void. All that he has challenged is the election of respondent No.1 on the grounds specified in Sections 19 and 20 of the Act of 1993. The petitioner and respondent Nos.4 to 6 had filed their nominations to the seat which were in the general category. Therefore, considering that the candidates who had filed their nomination claiming the benefit of the reservation were already elected against the reserved seats, he rightly 11 restricted the challenge to the elections to the seat in the general category.
11. The contention of the respondent No.1 that elections to the Grama Panchayat is by a single ballot and in view of Rule 74 of the Rules of 1993, all votes have to be recounted to decide the votes secured by the candidates in the descending order, so as to apply the reservation is liable to be rejected as the two other seats filled up were reserved for Schedule Caste (Woman) and Backward 'A' Woman and neither the petitioner nor the respondent Nos.4 to 6 were woman.
12. As rightly contended by the learned counsel for the petitioner, the judgment of this Court in W.P.No.84101/2012 involves similar facts which are involved in the present petition, unlike the other judgments relied upon by the learned counsel for the respondent Nos.4 to 6 and the learned Additional Government Advocate.
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13. In that view of the matter, the order passed by the trial Court deserves to be set aside. Hence, the following;
ORDER The writ petition is allowed.
The impugned order dated 08.11.2021 passed by the Senior Civil Judge at Kundapura in Misc (Election) Petition No.4/2021 is set aside and the election petition before the trial Court is restored.
The trial Court is directed to dispose of the proceedings as expeditiously as possible, at any rate within a period of four months from the date of receipt of a certified copy of this order.
Sd/-
JUDGE NR/-