Karnataka High Court
S N Lokeshawarappa @ S.N. Lokesh vs Mr Farooqulla on 29 October, 2013
Author: B.S.Patil
Bench: B.S.Patil
WP 46372-373/2013
1
®
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 29TH DAY OF OCTOBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
W.P.No.46372-373/2013 (APMC-)
BETWEEN
S N LOKESHAWARAPPA @ S.N. LOKESH
AGED ABOUT 45 YEARS
S/O NAGAPPA
R/O HULLUR VILLAGE,
CHITRADURGA TALUK
CHITRADURGA DISTRICT. ... PETITIONER
(By Sri.RAMA BHAT K, ADV.)
AND
1. MR FAROOQULLA
S/O ABDUL GHANI SAB
AGED ABOUT 44 YEARS
AGRICULTURIST
R/O KURUBARAHALLY VILLAGE,
HIREGUNTANUR HOBLI
CHITRADURGA TALUK & DISTRICT
2. SMT. RATNAMMA
W/O MALLAPPA
MAJOR
AGRICULTURIST
R/O HOSAHALLY
HIREGUNTANUR HOBLI
CHITRADURGA TALUK & DISTRICT
3. SRI. B.S. RAMESH
S/O SHIVARUDRAPPA
MAJOR,
AGRICULTURIST
WP 46372-373/2013
2
R/O BENAKANAHALLY
HIREGUNTANUR HOBLI
CHITRADURGA TALUK & DISTRICT
4. SRI. H. SURESH
S/O HORAKERAPPA
MAJOR
AGRICULTURIST
R/O ECHALA NAGENAHALLY
HIREGUNTANUR HOBLI
CHITRADURGA TALUK & DISTRICT-577501
5. TAHSILDAR /RETURING OFFICER
AGRICULTURAL PRODUCE MARKETING COMMITTEE,
CHITRADURGA
TALUK OFFICE,
CHITRADURGA TALUK & DISTRICT-577501
6. THE DEPUTY COMMISSIONER
CHITRADURGA DISTRICT
CHITRADURGA
KARNATAKATA. ... RESPONDENTS
(By Sri.SPOORTHY HEGDE N, ADV. FOR C/R1
Sri K.A.ARIGA, AGA FOR R5 & 6
NOTICE DISPENSED WITH R2,3,4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE
JUDGEMENT DT.21.9.13, IN MA.NO.10/13, PASSED BY THE
HON'BLE ADDL. DIST. & SESSIONS JUDGE, CHITRADURGA AS PER
ANN-A & CONSEQUENTLY TO SET-ASIDE THE JUDGEMENT
DT.321.3.13, IN ELE.MIS.NO.1/11, PASSED BY THE HON'BLE FIRST
ADDL. CIVIL JUDGE, CHITRADURGA AS PER ANN-B.
THIS PETITION COMING ON FOR PRELIMINARY HEARING-B
GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. Petitioner and respondents 1 to 4 herein had contested election for the post of Member of Chitradurga Taluk Agricultural Produce Market Committee (for short, 'APMC') WP 46372-373/2013 3 from Agriculturists Constituency of Manangi Village. In the election held on 01.05.2011, petitioner was declared elected having secured 974 votes defeating his close rival - the 1st respondent herein who had secured 671 votes. Result of the election was declared on 3.5.2011. The 1st respondent challenged this election by filing an Election Petition on 23.5.2011 before the I Addl.Civil Judge (Sr.Dn.), Chitradurga.
2. The learned Civil Judge allowed the election petition and declared that the election of the petitioner herein was void as he being a licensed trader was not eligible to contest the election from the agriculturists constituency. In addition, a further declaration was given declaring that the 1st respondent herein/election petitioner was duly elected as Member of the APMC from Manangi Agriculturists Constituency.
3. This order was challenged by the petitioner before the Addl. District and Sessions Judge, Chitradurga, in M.A.No.10/2013. The learned District Judge has dismissed the appeal confirming the order passed by the Civil Judge.
WP 46372-373/2013 4 In this background, the present writ petition is filed by the petitioner.
4. The main contentions urged by the learned Counsel for the petitioner are:
(a) the election petition filed by the 1st respondent was barred by limitation in terms of Section 20 of the Karnataka Agricultural Produce Marketing (Regulation and Development) Act, 1966 (for short 'the Act') as the same was not filed within 15 days from the date of declaration of the results.
(b) both the Courts below failed to notice that as per Section 22 of the Act, 1st respondent could not have been declared as elected, because the case did not fall within the ambit of either sub-section
(a) or sub-section (b) of Section 21 of the Act.
5. Learned Counsel appearing for the 1st respondent strongly supports the concurrent findings recorded by both the Courts below and urges that as the election petition was filed immediately on the re-opening day of the Court after summer vacation, the petition was not barred by limitation. He further points out that once it is held that the petitioner WP 46372-373/2013 5 was disqualified from contesting the election, whatever votes he had secured in the election would be invalid votes because the candidature itself was illegal, not recognized in law and therefore, the 1st respondent being the person in whose favour highest number of valid votes had been cast was rightly declared as elected.
6. Learned Addl. Government Advocate supports the judgments rendered by both the Courts below.
7. In the light of the pleadings, the findings recorded by both the Courts below and the contentions urged by the learned Counsel for the parties, the points that arise for consideration are:
(1) Whether the election petition filed was barred by limitation?
(2) Whether the Courts below were right and justified in declaring the 1st respondent as duly elected Member of the APMC?
8. Section 20 of the Act provides as under:
"At any time within fifteen days from the date of publication under Section 27 of the result of an election, any candidate who stood for election or any WP 46372-373/2013 6 person qualified to vote at that election may challenge the election by presenting an election petition by making the candidates at the election parties to the petition, together with a deposit of two hundred rupees as security for costs in the prescribed manner, to the Munsiff within whose territorial jurisdiction the market yard of the market area concerned is situate for the determination of the validity of the election and claiming any or both of the following reliefs, namely:-
(a) a declaration that the election of all or any of the returned candidates is void;
(b) a declaration that he himself or any other candidate has been duly elected.
(2) The Munsiff shall, after such enquiry as he deems necessary, pass an order -
(a) dismissing the election petition; or
(b) declaring the election of all or any of the returned candidates to be void; or
(c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected.
For the purpose of the said enquiry, the Munsiff may exercise any of the powers of a Civil Court. He may also award costs in such manner as he may deem fit and such costs shall be recoverable as if they had WP 46372-373/2013 7 been awarded under the Code of Civil Procedure, 1908 (Central Act 5 of 1908). If as a result of his order the declared result of an election is amended or set side, he shall forthwith communicate the order to the Deputy Commissioner. In the event of the election being set aside, the Deputy Commissioner shall take the necessary steps for holding a fresh election."
9. The grounds for declaring the election to be void are enumerated under Section 21 (a) to (d) of the Act. Section 21(a) which is relevant for our purpose states that if the Munsiff is of the opinion that on the date of his election, the returned candidate was not qualified or was disqualified to be chosen to fill the seat, then the Munsiff shall declare the election of the returned candidate as void. Section 22 deals with the grounds on which a candidate other than the retuned candidate may be declared to have been elected. It is useful to extract this provision because the second question raised pertains to the declaration of the result of the defeated candidates i.e., 1st respondent herein.
"22. Grounds for which a candidate other than the returned candidate may be declared to have been elected.- If any person who has lodged a petition WP 46372-373/2013 8 has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected, and the Munsiff is of opinion.-
(a) that in fact the petitioner or such other candidate received a majority of the valid votes; or
(b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes, the Munsiff shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected."
10. What amounts to corrupt practices is dealt with in Section 24 of the Act. It is useful to refer to the relevant portions of the provisions i.e., Section 24(1) (a) to (c). As the proviso and the explanation appended to Section 24(1) of the Act are not relevant for the purpose of this case, they are not referred.
"24. Corrupt Practices.- (1) A person be deemed to have committed a corrupt practice.-
(a) who, with a view to inducing any voter to give or to refrain from giving a vote in favour of any WP 46372-373/2013 9 candidate, offers or gives any money or valuable consideration, or holds out any promise of individual profit, or holds out any threat of injury to any person;
or
(b) who gives, procures, or abets the giving of a vote in the name of a voter who is not the person giving such vote; or
(c) who hires or procures, whether on payment or otherwise, any vehicle or vessel for the conveyance of any voter (other than the person himself, the members of his family or his agent) to and from any polling station;"
11. Now coming to the first point raised with regard to the bar of limitation, it is seen that election results have been declared on 03.05.2011. The Courts below have found that both the parties have not produced the copy of the Gazette Notification publishing the names of the elected candidates as required under Section 27 of the Act. Section 27 states that the Deputy Commissioner shall within two working days publish the names of all the elected members by a notification in the Official Gazette. However, it is not in dispute that the election results were declared on 03.05.2011 WP 46372-373/2013 10 and the Gazette Notification in this regard is issued on 05.05.2011. If 15 days is calculated from 05.05.2011, the election petition ought to have been filed on 18.05.2011. Instead, the same is presented on 23.05.2011. The Courts were closed for summer vacation till 22.05.2011 and re- opened on 23.05.2011. The election petition is presented on the re-opening day after summer vacation.
12. As per the notification issued by the High Court in exercise of the powers conferred under Section 28(3) of the Karnataka Civil Courts Act, 1964, which is extracted by the Civil Judge, the vacation judges are directed to dispose of urgent civil matters in which injunction, stay of proceedings and attachment orders, etc., are sought for during summer vacation of 2011. By referring to this notification and placing reliance on the judgment reported in AIR 2004 KAR 177, the learned Civil Judge has come to the conclusion that the election petition did not fall within the ambit and scope of the notification as the election petitioner had not sought any urgent interim order hence, the vacation court was not entitled to entertain the same and therefore, the election WP 46372-373/2013 11 petitioner was right and justified in presenting the election petition on the re-opening day and hence, the limitation period cannot be computed against the election petitioner till the courts re-opened. Indeed, reliance is also placed by the learned Counsel for the respondent in this connection on another judgment of this Court in the case of SMT. LALITHA VS BRUHAT BANGALORE MAHANAGARA PALIKE, BANGALORE & OTHERS - 2011(3) KCCR 1926, to support the findings recorded by both the courts below in this connection.
13. But, the learned Counsel for the petitioner draws the attention of the Court to a judgment of the Apex Court in the case of LACHHMAN DAS ARORA VS GANESHI LAL & OTHERS
- AIR 1999 SC 3101, to contend that election petition presented on the re-opening day of the Court after summer vacation was barred by limitation. In the said case, as observed in paragraph 9 of the judgment, the applicability of Section 10 of the General Clauses Act, is held to depend upon the facts of each case and the manner in which the High Court transacts its business during the period of vacations. Referring to the Rules and Orders of the Punjab WP 46372-373/2013 12 and Haryana High Court and the notification issued by the Punjab and Haryana High Court on 27.11.1995, the Apex Court came to the conclusion that the notification issued by the High Court expressly mentioned that the Courts of Punjab and Haryana at Chandigarh would be closed for civil business except for hearing election petition or any other matter arising out of the Representation of the People Act, 1951. In that background, it was held that the said notification unambiguously provided that during summer vacation, the High Court of Punjab and Haryana at Chandigarh had remained closed for civil business and it was open for hearing of election petition and hence there was no prohibition or bar for presenting the election petition during vacation. The facts in the present case and the notification issued by this Court as referred to above are different. Hence, the findings recorded by the courts below holding that the election petition was filed within time cannot be termed as illegal and unsustainable.
14. As regards the second question raised, it is clear from Section 22 of the Act that whenever in an election petition, in WP 46372-373/2013 13 addition to calling in question the election of the returned candidate, petitioner had sought for declaration that he himself or any other candidate to be declared as having been duly elected, if the Munsiff is of the opinon,- (a) that the petitioner or any other candidate received a majority of valid votes; or (b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes, the Munsiff shall after declaring the election of the returned candidate to be void, declare the petitioner or such other candidate, as the case may be, to have been duly elected.
15. A careful reading of this provision would make it clear that where the twin conditions enumerated in sub-clauses (a) & (b) of Section 22 of the Act, are satisfied, the Court is required not only to declare the election of the returned candidate as void, but also to declare the petitioner or such other candidate, as the case may be, to have been duly elected, in as much as, the expression 'shall' is issued in sub-clause (b) of Section 22 obligating the Court to declare the other candidate as having been duly elected. The twin WP 46372-373/2013 14 circumstances are expressly stated in sub-clauses (a) & (b) of Section 22 of the Act. Therefore, it goes without saying that if the case does not fall within the ambit of sub-clauses (a) &
(b) of Section 22 of the Act, the court is not bound to declare that the election petitioner or any other candidate has been duly elected.
16. But the contention of the learned Counsel for the petitioner is that only if the case falls under sub-clause (a) or
(b) of Section 22 of the Act, the election petitioner or any other candidate can be declared as duly elected after annulling the election of the successful candidate and not otherwise.
17. Counsel for the 1st respondent contends that as per Section 20 of the Act, the learned Munsiff is invested with such powers independent of the provisions in Section 22 to declare the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected. His first contention, however, is that the case of the 1st respondent falls within sub-section (a) of Section 22 because he is the person who has received WP 46372-373/2013 15 majority of valid votes. According to him, the votes received by the election petitioner have to be termed as invalid as the writ petitioner has been found to be not eligible for contesting the election itself.
18. The controversy raised is no longer res integra. Indeed, the provisions of Representation of People Act, 1951, contained similar provisions. In fact, the provisions under the Act regarding determination of validity of election, the grounds for declaring the election to be void, and grounds for which a candidate other than the returned candidate may be declared to have been elected, as contained in Sections 20, 21 & 22, respectively, are parimateria with the provisions contained under Sections 98, 100 & 101 of the Representation of People Act, 1951. Section 98 of the said Act provides that at the conclusion of the trial of an election petition, the High Court shall make an order - (a) dismissing the election petition; or (b) declaring the election of all or any of the returned candidates to be void; or (c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly WP 46372-373/2013 16 elected. This Section is parimateria with Section 20(2) of the Act. Section 21 of the Act is parimateria with Section 100 and Section 22 of the Act is parimateria with Section 101 of the Representation of People Act, 1951. It is useful to also refer and re-produce Section 101 of the Representation of People Act, 1951.
"101. Grounds for which a candidate other than the returned candidate may be declared to have been elected If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the High Court is of opinion.-
(a) that in fact the petitioner or such other candidate received a majority of the valid votes; or
(b) that but for the votes obtained by the returned candidate by corrupt practice the petitioner or such other candidate would have obtained a majority of the valid votes, the High Court shall, after declaring the election of the returned candidate to be void declare the petitioner or WP 46372-373/2013 17 such other candidate, as the case may be, to have been duly elected."
19. Dealing with these provisions of Representation of People Act, 1951, particularly those contained in Sections 100 & 101, the Apex Court in the case of PRAKASH KHANDRE VS DR. VIJAYA KUMAR KHANDRE & OTHERS - AIR 2002 SC 2345, has held in paragraph 14 & 24 of the judgment that where an elected candidate is declared to be disqualified to contest the election and there are more than two candidates contesting the election, there is no specific provision under the Act under which the person who has secured the next highest number of votes could be declared as elected. The Act is silent on this point. If disqualified candidate was not permitted to contest the election then how the voters would have voted in favour of the candidate who has secured more votes than other remaining candidates would be a question in the realm of speculation and unpredictability. In such a situation, declaring the election of the returned candidate as void on the ground of his initial disqualification to contest the election by itself would not WP 46372-373/2013 18 entitle the election petitioner or any other candidate to be declared elected.
20. Further, in paragraph 24 of the said judgment, the Apex Court has observed as under:
"24. In view of the aforesaid settled legal position, in our view the impugned order passed by the High Court declaring the election petitioner as elected on the ground that the votes cast in favour of elected candidate (appellant) are thrown away was totally erroneous and cannot be justified. As held by the Constitution Bench in Konappa's case that some general rule of election law prevailing in the United Kingdom that the votes cast in favour of a person who is found disqualified for election may be regarded as 'thrown away' only if the voters had noticed before the poll the disqualification of the candidate, has no application in our country and has only merit of antiquity. We would observe that the question of sending such notice to all voters appears to us alien to the Act and the Rules. But that question is not required to be dealt with in this matter. As stated earlier, in the present case for one seat, there were five candidates and it would be impossible to predict or guess in whose favour the voters would have voted if they were aware that elected candidate was disqualified to contest election by rejecting his nomination paper on WP 46372-373/2013 19 the ground of disqualification to contest the election and what would have been the voting pattern. Therefore, order passed by the High Court declaring the election petitioner Dr. Vijay Kumar Khandre as elected requires to be set aside."
21. It is thus clear that in the absence of any provision in the APMC Act with which we are concerned, providing for declaring the person who has secured next highest number of votes as elected upon the invalidation of the election of the returned candidate, it is not permissible to declare that the 1st respondent who had secured the next highest number of votes as duly elected. It cannot be said that he received majority of valid votes and was therefore entitled to be declared as elected.
22. The submission of the Counsel for the 1st respondent that if the votes secured by the petitioner who stood disqualified, are ignored and treated as invalid votes, then the 1st respondent has to be regarded as candidate who has received majority of valid votes cannot be accepted. Disqualification of a candidate on the ground that he had incurred any such disqualification in view of the provisions of WP 46372-373/2013 20 the Act is totally different from the validity of the votes cast in the election. The votes cast in his favour (disqualified candidate) cannot be characterized as invalid votes. They are valid votes cast by following legally recognized procedure. But, unfortunately, they have not been proved to be of any use. They have been cast in favour of a person who is later on found to be disqualified to contest the election. Hence, the argument that the votes cast in favour of a disqualified candidate have to be treated as invalid votes cannot be accepted.
23. Sub-section (a) of Section 22 of the Act has to be understood keeping in mind the fact that only in case where the election petitioner or any other returned candidate is found to have secured majority of valid votes in the election, then there will be a duty cast on the Court to declare such candidate as having been elected. Such a situation may arise when the invalid votes cast in favour of the elected candidate had been taken note of for declaring him as elected and latter on, in the course of proceedings in the election dispute it is found that after excluding such invalid votes, the election WP 46372-373/2013 21 petitioner or any other candidate secured majority of valid votes. In such a case, there will be no reason why the voters should be subjected to the burden of going in for another election as the election petitioner or other candidate who has secured majority of valid votes if declared elected would reflect the majority voice and the same will not affect the democratic principle underlying the election.
24. If the contention of the Counsel for the 1st respondent is accepted, then in a case where there are 10,000 voters and the returned candidate secures 9,000 votes, but finds himself disqualified consequent whereof his election gets annulled on that ground, then the other candidates in whose favour the remaining 1,000 votes might have been distributed can claim to be declared elected only because after excluding the returned candidate one among them has secured highest number of votes. It would then result in mockery of the principle of democracy as the person to be declared elected would not have got the support of 5 to 10% of the voters. Therefore, the appropriate interpretation to be laid on Section 22(a) of the Act is, that in case the election petitioner or any WP 46372-373/2013 22 other candidate is found to have received majority of valid votes in the election, then he can be declared as duly elected. In fact, this interpretation gets support from the provision contained under Section 22(b) of the Act, in as much as where the returned candidate has indulged in corrupt practices and has obtained certain votes by means of such corrupt practices, after excluding such votes, the votes secured by all the candidates including the returned candidate has to be calculated. In case the election petitioner or any other candidate is found to have secured more votes than the returned candidate, then he has to be declared as elected.
25. Thus keeping in mind the intention of the legislature behind the scheme of these provisions and considering the provision under Section 22 as a whole and also bearing in mind the purpose behind enacting Sections 22(a) & (b), I have no hesitation to hold that both the Courts below seriously erred in declaring the 1st respondent as having been duly elected.
WP 46372-373/2013 23
26. Therefore, while no fault can be found in the findings and the order passed by the courts below declaring the election of the petitioner as void, the declaration made by the courts below stating that the 1st respondent shall be treated as elected, deserves to be set aside. Accordingly, the writ petition is partly allowed. The order passed by the Courts below declaring the 1st respondent as duly elected is set aside. In all other respects the orders under challenge are confirmed. No costs.
Sd/-
JUDGE KK