Karnataka High Court
Ratnamma W/O. Basanagouda Patil, vs Dakshayani W/O. Hanumanagouda ... on 20 February, 2014
Author: N.Kumar
Bench: N.Kumar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20th DAY OF FEBRUARY 2014
BEFORE
THE HON'BLE MR. JUSTICE N.KUMAR
WRIT PETITION No.61438 OF 2012 (GM-CPC)
BETWEEN
RATNAMMA
W/O BASANAGOUDA PATIL,
AGE: 34 YEARS
OCC: HOUSEHOLD WORK
R/O: NADIHARALAHALLI
TQ: RANEBENNUR
DIST: HAVERI ...PETITIONER
(By Sri M H PATIL, ADVOCATE)
AND
DAKSHAYANI
W/O HANUMANAGOUDA BULLANGOUDAR
AGE: 32 YEARS
OCC: AGRICULTURE & HOUSEHOLD WORK
R/O: NADIHARALAHALLI
TQ: RANEBENNUR
DIST: HAVERI ...RESPONDENT
(SERVED)
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER PASSED ON I.A.NO.2 U/O.26 RULE
10B OF C.P.C., IN ELECTION PETITION NO.1/2010 DATED
02/02/2012 PASSED BY THE HON'BLE ADDITIONAL CIVIL
JUDGE AND II ADDITIONAL JMFC, RANEBENUUR, VIDE
ANNEXURE-E.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT, MADE THE
FOLLOWING:
ORDER
This writ petition is filed challenging the order passed by the learned Judge, Ranebennur, allowing the interlocutory application filed in an Election Petition, appointing Thasildar, Ranebennur as Commissioner to count the polled votes as prayed in I.A.No.2 and also allowing I.A.No.3 directing the third respondent to produce the ballot papers of ward No.1 of Village Nadiharalahalli of irany gram panchayath election held on 12.05.2010.
2. The respondent is an unsuccessful candidate in the election held to Village Nadiharalahalli of Irany Gram Panchayath on 12.05.2010. The petitioner herein in the 3 Election Petition, challenged the election of the respondent on various grounds including improper counting of votes.
3. After service of notice, the respondent has filed his objection.
4. In the said proceedings, the petitioner has filed an application I.A.No.2 for appointment of Thashildar as Commissioner and I.A.3 for production of ballet papers for the purpose of counting. As no objections were filed, both the applications were allowed. Challenging the said order, the present writ petition is filed.
5. The Apex Court in the case of KATTINOKKULA MURALI KRISHNA Vs. VEERAMALLA KOTESWARA RAO AND OTHERS reported in (2010) 1 SCC 466, has laid down the conditions to be fulfilled before the Election Tribunal permits scrutiny of ballot papers and re-counting. At para 16 of the judgment, it has been held as under: 4
"16. It would be trite to state that before an Election Tribunal can permit scrutiny of ballot papers and order re-count, two basic requirements viz. (i) the election petition seeking re-count of the ballot papers must contain an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded, and (ii) on the basis of evidence adduced in support of the allegations, the Tribunal must be, prima facie, satisfied that in order to decide the dispute and to do complete and effectual justice between the parties, making of such an order is imperatively necessary, are satisfied. Broadly stated, material facts are primary or basic facts which have to be pleaded by the election petitioner to prove his cause of action and by the defendant to prove his defence. But, as to what could be said to be material facts would depend upon the facts of each case and no rule of universal application can be laid down."
6. Therefore, it is clear that first there should be a plea. Then evidence in support of the plea and on appreciation of both, prima facie, the Tribunal should come 5 to the conclusion that a case for recounting is made out. It is only then the Court gets jurisdiction to pass orders. In the instant case, no enquiry is conducted, no evidence is recorded. Merely by looking into the allegations in the applications filed, an order has been passed. Therefore the impugned order is illegal and requires to be set aside. Hence, I pass the following order:
Writ petition is allowed.
The impugned order is set aside.
The application filed for appointment of Commissioner as well as for production of ballot papers for counting, are dismissed.
Parties to bear their own costs.
SD/-
JUDGE ksp/-