Karnataka High Court
T.H. Saganappa vs T.R. Srinivasamurthy And Ors. on 9 December, 1980
Equivalent citations: AIR1981KANT114, 1981(1)KARLJ149, AIR 1981 (NOC) 114 (KAR), (1981) 1 KANT LJ 334 (1981) 1 KANT LJ 149, (1981) 1 KANT LJ 149
JUDGMENT D.M. Chandrashekhar, C.J.
1. This is an appeal from the order of Venkatesh, J., allowing W. P. No. 17773 , of 1980. Respondent 5 therein has presented this appeal. For the sake of convenience, the parties will hereinafter be referred to according to their respective positions in the writ petition.
2. The petitioner and respondents 2, 3 and 5 had filed their nomination papers in the election for the office of the President of the Town Municipal Council, Tarikere. Respondent 1. the Election Officer, accepted all those nomination papers. Before the poll took place, the petitioner impugned the acceptance of the nomination paper of Respondent 5 on the ground that the same person who had seconded the nomination of respondent 5 had already proposed the candidature of the petitioner. This fact was not disputed by the parties.
3. The learned single Judge held that under sub-r. (4) of R. 4 of the Karnataka Municipalities (President and Vice-President) Election Rules, 1965 (hereinafter referred to as the Rules) the person who had proposed the candidature of the petitioner, could not have seconded the nomination of respondent 5 and that therefore the acceptance of nomination paper of respondent 5 war, invalid. In that view, the learned single Judge quashed the acceptance of the nomination paper of respondent 5 and issued a mandamus to the Election Officer to treat only the nomination papers of the petitioner and respondents 2 and 3 as valid and to hold the election accordingly.
4. In this appeal, Shri H. Subramanya Jois, learned counsel for the appellant (respondent 5 in the writ petition), contended that as there was an alternative remedy by way of an election petition provided under Rule 17 of the Rules, the learned single Judge was not justified in exercising the jurisdiction under Art. 226 of the Constitution and in interfering with the decision of the Election Officer. In support of his contention, Shri Subramanya Jois strongly relied on the decision of Rama Jois, J. in Fakirappa Yellappa Kali v. Deputy Commissioner ((1979) 1 Kant LJ 153). There, his Lordship held that the illegal acceptance of a nomination paper, did not warrant the exercise of the jurisdiction under Art., 226(1)(b) of the Constitution. That decision was based on the language of Article 226 of the Constitution, as it stood after the 42nd Amendment to the Constitution. That Article has been further ammended by the 44th Amendment and the words "no injury to a substantial nature" which occurred in sub-clause (b) of clause (1) of that Article as it stood after the 42nd Amendment, are no longer in that Article after it was amended by the 44th Amendment. Hence, that decision is of no assistance to the persent case.
5. Shri Subramanya, Jois next relied on the observations of the Supreme Court in Nannoo Mal v. Hira Mal to the effect that an election to the office of the President of a Municipal Board could be challenged only according to the procedure prescribed by the U. P. Municipalities Act and that is, by means of an election petition presented in accordance with the provisions of that Act and in no other way. In para 5 of that judgment, the Supreme Court itself has observed "whether there can be any extraordinary circumstances in which the High Courts could exercise their Power under Art. 226 in relation to elections, is not now necessary to consider." Thus, there is no unqualified statement of law by the Supreme Court that an election can never be challenged in petition under Article 226 of the Constitution.
6. Lastly it was contended by Shri Subramanya Jois that there was no extraordinary circumstance to warrant the exercise of power of this Court under Article 226 of the Constitution.
7. In the present case, the illegality in accepting the nomination paper of respondent 5, is obvious and does not require any investigation. If the election were to be held on the basis of acceptance of that nomination paper, the election will be vitiated. Instead of allowing the election to take place and driving the aggrieved party to the necessity of filing an election petition which is bound to be allowed, it will be much better to correct at the earlier stage itself the error committed by the section officer so that waste of public time and money may be avoided. Hence we are unable to accept the contention of Shri Subramanya Jois that the learned single Judge erred in exercising his jurisdiction under Art. 226 of the Constitution and in interfering with the acceptance of the nomination papers by the Election Officer.
8. In the result, we do not admit this appeal, but dismiss it.
9. Appeal dismissed.