Karnataka High Court
Archana W/O Deepak Sindhe vs The Returning Officer & Ors on 5 March, 2013
Author: D.V.Shylendra Kumar
Bench: D V Shylendra Kumar
-1-
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
Dated this the 5th day of March, 2013
BEFORE:
THE HON'BLE MR JUSTICE D V SHYLENDRA KUMAR
Writ Petition No.100665 of 2013 (LB-ELE)
BETWEEN:
ARCHANA W/O DEEPAK SINDHE,
AGE: 25 YEARS, OCC: HOUSEHOLD,
R/O SUBHASH CHOWK, BAKKA GALLI,
BHALKI, DISTRICT: BIDAR-585328.
... PETITIONER
[BY SRI HANMANTHRAYA SINDHOL, ADVOCATE]
AND:
1. THE RETURNING OFFICER,
TOWN MUNICIPAL COUNCIL,
BHALKI, DISTRICT: BIDAR-585328.
2. TAHASILDAR BHALKI,
DISTRICT: BIDAR-585328.
3. THE DEPUTY COMMISSIONER BIDAR,
DISTRICT: BIDAR-585401.
4. DATTU S/O TIPPANNA PAWAR,
AGE: 35 YEARS, OCC: NIL,
R/O WADDAR GALLI, BHALKI,
DISTRICT: BIDAR-585328.
... RESPONDENTS
[BY SRI MANAVENDRA REDDY, GA FOR R1 TO R3)
-2-
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF CONSTITUTION OF INDIA, PRAYING TO A WRIT OF
CERTIORARI QUASHING ANNEXURE-D ¸ÀASÉå:PÀA.ZÀÄ£ÁªÀuÉ:¥ÀŸÀ:¹.Dgï-
16/2012-13 DATED 23.02.2013 AND ANNEXURE-E 551584 DATED
23.2.2013 PASSED BY RESPONDENT NOS.1 AND 2 AND A WRIT OF
MANDAMUS OR DIRECTION TO THE 1ST RESPONDENT TO ACCEPT
THE NOMINATION OF WRIT PETITIONER AND ALSO ALLOW THE
WRIT PETITIONER TO CONTEST THE ELECTION TO WARD NO.23
RESERVED FOR SC WOMEN WHICH WILL BE HELD ON 7.3.2013
TO TOWN MUNICIPAL COUNCIL BHALKI DISTRICT BIDAR AND
ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The writ petitioner was aspiring candidate to contest the Town Municipal Elections to Bhalki Town and had also filed nomination papers to contest to the constituency reserved for Scheduled Caste (Women).
2. It is the case of the petitioner that for such purpose, she had obtained a caste certificate from the second respondent - Tahsildar, Bhalki and had placed the same before the Returning Officer of the constituency along with the nomination papers.
-3-
3. It is also the case of the writ petitioner that the fourth respondent - some third party had filed an objection before the Tahsildar to contend that the writ petitioner really did not belong to Scheduled Caste and ensured cancellation of the certificate issued earlier by the Tahsildar, by collusive action with the Tahsildar to the detriment of the petitioner.
4. It appears that the fourth respondent claiming to be a person belonging to Scheduled Caste community and safeguarding the interest of community, had given a representation to the Returning Officer on the date of the scrutiny to point out that the Tahsildar had cancelled the caste certificate that had been issued in favour of the writ petitioner and because of this reason the Returning Officer, while scrutinizing the nomination papers of the petitioner as on 25.02.2013, rejected the same, on the ground that the caste certificate that had been issued in -4- favour of the petitioner by the Tahsildar has been subsequently cancelled.
5. It is in this background that the writ petitioner is before this Court putting forth various contentions.
6. Appearing on behalf of the writ petitioner, submission of Sri Hanmanthraya Sindhol, counsel appearing for the petitioner is firstly that the second respondent - Tahsildar had acted in a gross arbitrary manner; that he had also acted in violation of principles of natural justice; that without notice to the writ petitioner, he could not have cancelled the caste certificate, which had resulted in the rejection of her nomination papers by the Returning Officer; that situation warrants cancellation of order of the Tahsildar and issue further directions to the Returning Officer to entertain the nomination papers of the petitioner to permit the petitioner to contest the elections; that interim order should necessarily be granted -5- in favour of the petitioner, as otherwise the petitioner will be deprived of an opportunity to contest the elections, which will be irreversible.
7. Sri Hanmanthraya Sindhol, learned counsel for the petitioner submits that this Court has entertained writ petitions in situations where Tahsildar has acted in an arbitrary manner in the matter of issue of caste certificate and this is a fit case for exercising writ jurisdiction.
8. Notice had been issued to the respondents and the respondents 1 to 3 are represented by Sri. Manavendra Reddy, learned Government Advocate.
9. Sri Manavendra Reddy, learned Government Advocate seeks to defend the orders on merits and also points to the bar to entertain cases by Courts involving the election process in terms of the provisions of Article 243ZG of the Constitution of India and submits that the present writ petition is one which has a bar on the election -6- process that a nomination paper once rejected cannot be examined by Courts except by the Election Tribunal on an election petition presented by the candidate whose nomination has been rejected and in this regard he has drawn my attention to the provisions of Section 21 of the Karnataka Municipalities Act, 1964 read with Section 23
(c) of the said Act, wherein it is expressly mentioned that one of the grounds for declaring elections to be void in a duly pursuing election petition is that "any nomination paper has been improperly rejected,". Improper acceptance is also a ground for challenging in terms of Section 23(1)(d)(i) of the said Act.
10. Sri. Manavendra Reddy, learned Government Advocate submits that the law of interference by Courts in election process and election matters has been clearly stated and settled way back in the year 1952 by the Supreme Court in the case of N.P. Ponnuswamy V. The Returning Officer Namakkal Constituency, Namakkal -7- reported in AIR 1952 SC 64 and followed in all subsequent cases.
11. It is further submitted by the learned Government Advocate that the petition involving the challenge to election process should necessarily be dismissed and allowing the petitioner, if she has any grievance, to work out the remedy provided before the Election Tribunal meant for such purpose.
12. On the basis of the contentions and the submissions made at the Bar and the grounds made by the writ petitioner, the interim order to be granted is always subject to the result of the writ petition, which is an effect of interfering the election process, in the sense that, the nomination papers once rejected is directed to be accepted by the Returning Officer,
13. The rejection of a nomination paper being enumerated ground for declaring the outcome of an -8- election void, if the rejection is improper should not only be in accordance with law and the bar under the Constitution operates but also the statutory provisions providing for the remedy before the Tribunal.
14. Though the learned counsel for the petitioner has contended that the present petition has two parts namely, that of cancellation of the caste certificate issued earlier, without due opportunity and consequently rejection being based on that, a distinction is sought to be made in this case. I do not find any such distinction required to be made, as ultimately the petitioner is mainly aggrieved by the rejection of her nomination papers.
15. It is open to the petitioner to avail the remedy provided in terms of the statutory provisions before the Election Tribunal and it is also open to the petitioner to pursue the so-called erroneous cancellation of her caste -9- certificate before the authorities concerned and as per the statutory provisions.
16. Therefore, the writ petition is dismissed in view of the bar as indicated above, without going into the merits of the petition, leaving open all the contentions of the petitioner to urge before the appropriate Court.
Sd/-
JUDGE swk