Karnataka High Court
Sri Priyakrishna vs The Returning Officer on 19 September, 2019
Author: Alok Aradhe
Bench: Alok Aradhe
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF SEPTEMBER 2019
BEFORE
THE HON'BLE MR. JUSTICE ALOK ARADHE
WRIT PETITION NO.27019 OF 2018 (GM-RES)
BETWEEN:
SRI. PRIYAKRISHNA
S/O SRI. M. KRISHNAPPA
AGED ABOUT 34 YEARS
No.2937/38E, 'GOVARDHANA PRIYA'
SERVICE ROAD, VIJAYANAGAR
BENGALURU-560040.
... PETITIONER
(BY MR. K.V. DHANANJAY, ADV. A/W MR.ARVIND B PATIL, FOR
MR. JAYARAM K, ADV.,)
AND:
1. THE RETURNING OFFICER
FOR THE GOVINDARAJA NAGAR
ASSEMBLY CONSTITUENCY-166
PALIKE SOUDHA, 14TH CROSS
CHANDRALAYOUT I STAGE
BENGALURU-560072.
(NOW WORKING AS DEPUTY SECRETARY
BDA) C/O THE OFFICE OF CHIEF
ELECTORAL OFFICER KARNATAKA
AT NIRVACHANA NILAYA
SESHADRI ROAD, BENGALURU-560001.
2. THE CHIEF ELECTORAL OFFICER
KARNATAKA, AT NIRVACHANA NILAYA
SESHADRI ROAD, BENGALURU-560001.
3. THE ELECTION COMMISSION OF INDIA
AT NIRVACHAN SADAN
ASHOKA ROAD, NEW DELHI-110001.
... RESPONDENTS
(BY MR. ABHILASH VAIDYANATHAN, ADV. A/W
MR.MANU KULKARNI, ADV. FOR
2
SMT. SANJANTHI SAJAN POOVAYYA, ADV., FOR R2
MR. SHANTH KUMAR S.P. ADV., FOR
MR. S.H. PRASHANTH, ADV., FOR R1
MR. S.R. DODAWAD, CGC, FOR R3)
----
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR
THE RECORDS FROM THE RESPONDENTS AS TO THE
PROCEEDINGS ON THE FILE OF THE R-1 INCLUDING THE VIDEO
FOOTAGE AND SETTING ASIDE THE ORDER DTD:15.5.2018,
PASSED BY THE RETURNING OFFICER, NO.166-GOVINDARAJA
NAGAR LEGISLATIVE ASSEMBLY CONSTITUENCY, THE R-1
HEREIN, IN THE SAID PROCEEDINGS WHICH IS HERE AT
ANNEXURE-A AND DISMISSING THE APPLICATION OF THE
PETITIONER AT ANNEXURE-B AND THEREBY BE FURTHER
PLEASED TO ALLOWING APPLICATION AT ANNEXURE-B
DTD:15.5.2018; AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
Mr.K.V. Dhananjay, learned counsel along with Mr.Arvind B Patil for Mr.Jayaram K, learned counsel for the petitioner.
Mr.Abhilash Vaidyanathan, learned counse; along with Mr.Manu Kulakarni for Smt.Sanjanthi Sajan Poovayya, learned counsel for the respondent No.2. 3
Mr.Shantha Kumar S.P. for Mr.S.H.Prashanth, learned counsel for respondent No.1.
Mr.S.R.Dodawad, learned Central Government Counsel for respondent No.3.
In this petition under Articles 226 and 227 of the Constitution of India, the petitioner inter alia seeks quashment of order dated 15.05.2018 passed by the Returning Officer as well as a writ of mandamus directing the respondent No.1 to count voter verified paper audit trail (hereinafter referred to as 'the VVPAT' for short) in respect of 271 polling stations of Govindrajanagar Legislative Assembly Constituency No.166 (hereinafter referred to as 'the Constituency' for short). The petitioner also seeks a writ of certiorari to quash the process of election of Polling Station No.190 of the Constituency.
2. The facts which are not in dispute lie in a narrow compass. The office of the Chief Electoral Officer viz., respondent No.2 has been constituted under 4 Section 13A of the Representation of People Act, 1950 (hereinafter referred to as 'the Act' for short) to supervise the preparation, revision and correction of all electoral rolls in the State of Karnataka subject to superintendence, direction and control of respondent No.3. The respondent No.2 is empowered to conduct all the elections in the State of Karnataka. The respondent No.2 conducted the 2018 Assembly elections to the Karnataka State Legislative Assembly. The election for the post of member of Assembly to the Constituency was held on 12.05.2018. The petitioner participated in the aforesaid election and lost the election by a margin of 11354 votes out of a total vote count of 1,57,231.
3. The petitioner on 15.05.2018 i.e., on the day of counting of votes, made an application to the Returning Officer under Rule 56D of Conduct of Election Rules, 1961 (hereinafter referred to as 'the Rules' for short) at about 1.09 p.m., in which inter alia it was stated that the petitioner has serious objection of 5 Electronic Voting Machine being tampered in polling booths Nos.7, 22, 34, 42, 44, 62, 63, 65, 77, 88, 92, 102, 137, 140, 159, 160, 185, 187, 192, 206, 207, 208, 209 and 210. Therefore, a request was made to the Returning Officer to count the VVPAT slips. The Returning Officer by an order dated 15.05.2018, examined the complaint of the petitioner and rejected the same. In the aforesaid factual background, the petitioner has approached this court.
4. Learned counsel for the petitioner submitted that the integrity of the poll process is an end in itself and is not a mere means to an end and Rule 56D of the Rules, secures integrity in the poll process. It is also argued that failure of Returning Officer in properly applying Rule 56D of the Rules can be questioned in a writ proceeding instead of filing a petition under Section 80 of the Act. It is further submitted that since the petitioner is not seeking a change in the outcome of the election, therefore, he need not file a petition under 6 Section 50 of the Act. It is also urged that Rule 56D is couched in very wide terms and it is universally recognized that Electronic Voting Machines are by their very nature and design are prone to error and manipulation. Therefore, the concept of voter VVPAT was introduced in India. It is also urged that Rule 56D of the Rules does not enumerate or limit the circumstances that must be present before a candidate seeks a tally of VVPATs with the reading given by the Electronic Voting Machines for a given polling station. It is further submitted that the Returning Officer can refuse to accept the plea under Rule 56D of the Rules only on the ground that the request is frivolous or unreasonable. It is also pointed out that in the instant case, the Returning Officer did not or could not conclude that the request made by the petitioner was either frivolous or unreasonable. It is also submitted that the Returning Officer has misdirected herself in deciding the application filed by the petitioner inasmuch as the 7 application need not be allowed if there exists the prospect of a candidate being declared as a winner.
5. It is also urged that in case the Returning Officer would have ordered tallying of VVPATS for 24 polling stations, severe mismatch of votes would have emerged and Returning Officer would have been forced to acknowledge the defects in the EVMs deployed in the Constituency. It is also submitted that Rule 49MA of the Rules is not widely known to the voters and therefore, are hesitant to invoke it in view of criminal sanction to a voter who cannot establish the error to the satisfaction of Presiding Officer of a Polling Station. It is therefore submitted that impugned order be quashed the Returning Officer be directed to tally VVPATs of the Assembly Constituency as sought for by the petitioner as no prejudice would be caused to any person or to the Election Commission of India. It is also submitted that petitioner is ready and willing to bear the expenses incurred, if any, in undertaking such a exercise. In 8 support of aforesaid submission, reliance has been placed on decisions of Supreme Court in 'SUBRAMANIAN SWAMY VS. ELECTION COMMISSION OF INDIA', 2013 (10) SCC 500, 'ELECTION COMMISSION OF INDIA VS. ASHOK KUMAR', AIR 2000 SC 2979, 'KAMAL NATH VS. ELECTION COMMISSION OF INDIA', WP (CIVIL) NO. 100 OF 2018, PRAKASH JOSHI VS. ELECTION COMMISSION OF INDIA IN WP (CIVIL) NO.983 OF 2017, 'MANUBHAI CHAVADA VS. ELECTION COMMISSION OF INDIA', WP (CIVIL) NO. 1012 OF 2017, 'CHANDRABABU NAIDU VS. UNION OF INDIA', WP (CIVIL) NO. 273 OF 2019.
6. On the other hand, learned counsel for the respondent No.2 while inviting the attention of this court to Rule 56D of the Rules as well as the guidelines issued by Election Commission of India submitted that the order has been passed by the Returning Officer bearing in mind the guidelines as well as the statutory mandate 9 contained in Rule 56D of the Rules and the impugned order does not suffer from any infirmity warranting interference of this court in exercise of powers of judicial review. It is further submitted that polling in respect of the Constituency was held on 12.05.2018 and counting of votes took place on 15.05.2018. It is also argued that even if the application filed under Rule 56D of the Rules would have been allowed, the same would not have affected the result of the election in any manner. It is further submitted that in the fact situation of the case, no case for interference in exercise of powers of judicial review is made out especially when the exercise of the same would amount to an exercise in futility. In support of his submissions, learned counsel for respondent No.2 has placed reliance on decisions of Supreme Court in 'K.VENKATACHALAM VS. A.SWAMICKAN AND ANOTHER', AIR 1999 SC 1723, 'PONNUSWAMI VS. RETURNING OFFICER, NAMAKKAL CONSTITUENCY', (1952) SCR 218, 'MOHINDER GILLL AND OTHERS VS. CHIEF 10 ELECTION COMMISSIONER AND OTHERS', (1978) 1 SCC 405, 'ELECTION COMMISSION OF INDIA VS. ASHOK KUMAR AND OTHERS', (2000) 8 SCC 216, 'JAGAN NATH VS. JASHWANT SINGH AND OTHERS', 1954 SCR 892, 'JYOTI BASU AND OTHERES VS. DEBI GHOSAL AND OTHERS', (1982) 1 SCC 691, 'ELECTION COMMISSION OF INDIA VS. SHIVAJI AND OTHERS', (1988) 1 SCC 277, ' MARKO TADO VS. TAKAM SORANG AND OTHERS', (2012) 3 SCC 236, 'SUBRAMANIAN SWAMY VS. ELECTION COMMISSION OF INDIA', (2013) 10 SCC
500.
7. I have considered the rival submission sand have perused the record. In the context of relief sought for by the petitioner, the scope in this writ petition is confined to examining the validity of the order dated 15.05.2018 passed by the Returning Officer Under Rule 56D of the Rules. At this stage, it is apposite to take 11 note of Rule 56D of the Rules, which is reproduced below for the facility of reference:
56D. Scrutiny of paper trail - (1) Where printer for paper trail is used, after the entries made in the result sheet are announced, any candidate, or in his absence, is election agent or any of his counting agents may apply in writing to the returning officer to count the printed paper slips in the drop box of the printer in respect of any polling station or polling stations.
(2) On such application being made, the returning officer shall, subject to such general of special guidelines, as may be issued by the Election commission, decide the matter and may allow the application in whole or in part or may reject in whole, if it appears to him to be frivolous or unreasonable.
8. From perusal of Rule 56D of the Rules it is evident that the Returning Officer has to decide the application subject to general or special directions as may be issued by the Election Commission. In the 12 instant case, the Election Commission of India has issued the guidelines, which read as under:
(a) Whether the total number of votes polled in that polling station is greater or lesser than the margin of votes between winning candidate and candidate making the application.
(b) Whether EVM had a problem and was replaced at that polling station during poll,
(c) Whether there was any complaint about VVPAT not printing or complaints by any voter under Rule 49MA in that polling station during the poll.
9. In the backdrop of Rule 56D as well as the guidelines issued by the Election Commission of India, the relevant extract of the impugned order may now be noticed, which reads as under:
(a) The total polled votes in the above 24 polling stations being 15001, the polled votes for complainant Mr.Priyakirshna, 166, Govindaraj Nagar LAC, Candidate of Indian National Congress being 5615 and 13 Polled votes for rest of the candidates including NOTA is 9386, which is less than the winning margin of 11354. thus, the VVPAT slips counting for above 24 polling stations does not have any merit.
(b) It was also found that the EVM corresponding to the above polling stations did not have any problems and were not replaced at the polling stations during actual poll.
(c) In every round of counting C.U seal was intact. Also after each round of counting of votes in C.U, the signature of candidates / candidate agents were taken as proof of satisfaction of EVM counting. Thus roundwise counting of votes was done to the satisfaction of the candidates following the due process.
(d) It is seen from the records that there are no complaint bout VVPAT not printing or complaints by any voter under 49MA or by candidate / candidate agents in these above mentioned polling stations during actual poll.
(e) Also as per the instructions of Election Commission of India, Letter 14 No.51/8/VVPAT/2017-EMS dated 16.10.2017 and VVPAT Manual, a written notice is given to candidate on 15.05.2018 for the mandatory verification of VVPAT paper slips of randomly selected One Polling station for 166 Govindaraj Nagar LAC at the end of counting which was selected by draw of lots in the presence of candidates / their agents and General Observer. The whole process was videographed.
10. Thus, the polling station No.190 was randomly selected and detailed VVPAT slips counting was conducted in presence of candidates / candidate agents for their full satisfaction. The votes polled in C.U matched with VVPAT slips and no discrepancy was observed in VVPAT slips in PS No.190 complete videography of entire VVPAT slip countings was done. Therefore after considering the facts enumerated above, no merit is found in this case of counting of above twenty four (24) PS VVPAT slips.
Therefore, I Mangala having gone through the entire records on the complaint made, have come to the conclusion that there 15 is no need for counting VVPAT slips for polling stations No. 7, 22, 34, 42, 44, 62, 63, 65, 77, 88, 92, 102, 137, 140, 159, 160, 185, 187, 192, 206, 207, 208, 209 and 210 have pronounced this order on 15.05.2018.
10. Thus, from perusal of Rule 56D of the Rules as well as the guidelines issued by the Election Commission of India and the relevant extract of the impugned order, it is evident that the impugned order has been passed in consonance with the statutory mandate contained in Rule 56D of the Rules as well as the guidelines framed by the Election Commission of India. The impugned order by no stretch of imagination can be said to be perverse. The impugned order also does not suffer from the vice of non application of mind. Even if this court quashes the impugned order and remands the matter to the Returning Officer for decision afresh it will amount to an exercise in futility. It is well settled in law that this court even otherwise does not indulge in an exercise which is academic in nature. 16
In view of preceding analysis, I do not find any merit in the writ petition. The same fails and is hereby dismissed.
Sd/-
JUDGE SS