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NC: 2023:KHC-D:9415-DB
WA No. 100041 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 23RD DAY OF AUGUST, 2023
PRESENT
THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
WRIT APPEAL NO. 100041 OF 2022 (LB-ELE)
BETWEEN:
SRI. MALAPPA S/O KRISHNAPPA TUBACHI
AGE. 41 YEARS, OCC: AGRICULTURE,
R/O. CHINAGUNDI, TALUK: JAMKHANDI,
DIST. BAGALKOT, PIN 587301.
...APPELLANT
(BY SRI. SHIVARAJ P MUDHOL, ADVOCATE)
AND:
1. SRI. RAMAPPA S/O. LAXMAPPA KALLIWADDAR,
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O. CHINAGUNDI, TQ: JAMKHANDI,
DIST: BAGALKOT-587301.
2. SMT. SHIVALEELA W/O. RAMAPPA GURAV,
AGE: 30 YEARS, OCC: HOUSEHOLD WORK,
R/O: CHINAGUNDI, TQ: JAMKHANDI,
ROHAN DIST: BAGALKOT-587301.
HADIMANI
T 3. SMT. PREMA W/O. JAGADISH PALLED,
AGE: 42 YEARS, OCC: HOUSE HOLD WORK,
Digitally signed
by ROHAN R/O. CHNAGUNDI, TQ: JAMKHANDI,
HADIMANI T NOW AT NEAR DANAMMA TEMLE,
Date: 2023.08.29
12:00:55 -0700 KUNCHANUR ROAD, JAMKHANDI,
TALUK. JAMKHANDI, DIST. BAGALKOT,
PIN 587301.
4. SMT. HEMALATHA W/O CHINNAPPA KADAKOL
AGE. 35 YEARS, OCC. HOUSE HOLD WORK,
R/O. KUNCHANUR, TQ. JAMKHANDI,
NOW AT KUNCHANUR ROAD, JAMKHANDI,
DIST. BAGALKOT-PIN. 587301.
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NC: 2023:KHC-D:9415-DB
WA No. 100041 of 2022
5. SMT. LAXMI W/O PARAPPA KOHALLI
AGE. 32 YERS, OCC. HOUSE HOLD WORK,
R/O. CHINAGUNDI, TQ. JAMKHANDI,
DIST. BAGALKOT, PIN. 587301.
6. SRI. SHANKAR S/O MARUTI KAMBALE
AGE. 42 YEARS, OCC. AGRICULTURE,
R/O. CHINAGUNDI, TQ. JAMKHANDI,
DIST. BAGALKOT, PIN 587301.
7. SRI. LAXMAN S/O ANNAPPA KAMBALE
AGE. 28 YEARS, OCC. AGRICULTURE,
R/O. CHINAGUNDI, TQ. JAMKHANDI,
DIST. BAGALKOT PIN 587301.
8. SRI. SANJU MADAR
AGE. 28 YEARS, OCC. AGRICULTURE,
R/O. KUNCHANUR, TQ. JAMKHANDI,
DIST. BAGALKOT, PIN 587301.
9. THE ELECTION OFFICER
NO. 14 KUNCHANUR GRAM PANCHAYAT TAHASILDAR
OFFICE, MINI VIDHAN SOUDHA,
KUDACHI ROAD, JAMKHANDI,
DIST. BAGALKOT-PIN 587301.
...RESPONDENTS
(BY SRI.GIRISH A YADAWAD, ADVOCATE FOR C/R1)
(SRI. G.K. HIREGOUDAR, GOVT. ADV. FOR R9)
(R2 TO R8-NOTICE DISPENSED WITH)
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH
COURT ACT, 1961, PRAYING TO SET-ASIDE THE JUDGMENT AND
ORDER DATED 07/12/2021 IN WRIT PETITION NO.104845/2021
PASSED BY LEARNED SINGLE JUDGE BY ALLOWING THIS APPEAL, IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS WRIT APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, S.R. KRISHNA KUMAR J., THE COURT DELIVERED THE
FOLLOWING:
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NC: 2023:KHC-D:9415-DB
WA No. 100041 of 2022
JUDGMENT
This intra Court appeal is directed against the impugned order dated 07.12.2021 passed in Writ Petition No.104845/2021, whereby the said petition filed by the appellant/writ petitioner was dismissed by the learned Single Judge.
2. Heard the learned counsel for the appellant; learned counsel for caveator respondent No.1 and learned Government Advocate for respondent No.9/State and perused the material on record.
3. The material on record discloses that in an election held to Kunchanur Gram Panchayat on 22.12.2020, result of the elections were declared on 30.12.2020 declaring that the appellant was successful candidate and the 1st respondent was one of the unsuccessful candidates. Aggrieved by the said result of the election, 1st respondent filed election petition in E.P.No.1/2021 before the trial Court challenging the election of the appellant and for declaration that the 1st respondent was the successful candidate by directing recounting of his votes. The said election petition was contested by the appellant herein, who filed his statement of objections. -4-
NC: 2023:KHC-D:9415-DB WA No. 100041 of 2022
4. During the pendency of election proceedings and before commencement of trial, respondent No.1 filed an application seeking summoning of Ballot boxes for recounting of votes, which were involved in the dispute. The said application having been allowed by the trial Court vide order dated 7.10.2021, the appellant preferred writ petition in WP No.104142/2021, which was dismissed by this Court confirming the order of the trial Court to summon ballot boxes and for recounting of the votes. Subsequently, on 27.10.2021, sealed boxes containing ballot papers were brought to the trial Court and an order came to be passed noticing that they were recounted in the presence of the parties and their respective counsel as well as Tahsildar. As per the said recounting conducted before the trial Court, 69 votes were held to be invalid/rejected votes. Subsequently, respondent No.1 herein filed a memo dated 18.11.2021 specifically stating that out of the aforesaid 69 invalid/rejected votes, only 17 votes were valid and remaining votes were invalid/rejected votes and respondent No.1 gave details of the said 17 valid votes along with ballot paper numbers. So also, the appellant herein filed a memo dated 20.11.2021 contending out of 69 invalid/rejected -5- NC: 2023:KHC-D:9415-DB WA No. 100041 of 2022 votes, 21 votes were valid and gave details of ballot papers along with ballot paper numbers and the matter was adjourned to 26.11.2021.
5. In the meanwhile, on 17.11.2021, the appellant had filed an application seeking permission to adduce his evidence as well as evidence of respondent No.9/Election Officer. By order dated 26.11.2021, the trial Court rejected the said application and on the very same day i.e. on 26.11.2021, the trial Court proceeded to pass the impugned order allowing the Election Petition holding that trial was not necessary in the facts and circumstances of the case. Aggrieved by the impugned order passed by the trial Court, the appellant preferred instant writ petition i.e. WP No.104845/2021, which was contested by respondents. After hearing both sides, learned Single Judge proceeded to pass the impugned order dismissing the petition on the sole ground that the appellant had participated in the recounting, which was done in his presence and consequently, question of permitting him to lead evidence would not arise. Aggrieved by the impugned order of the trial Court as well as order passed by the learned Single -6- NC: 2023:KHC-D:9415-DB WA No. 100041 of 2022 Judge, the appellant is before this Court by way of present appeal.
6. We have given out anxious consideration to the rival submissions and perused the material on record.
7. Before adverting to the material on record, it would be relevant to extract Section 17 and 18 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (for short, 'Act of 1993'), which reads as under:
17. Trial of election petition.- (1) the Designated Court shall dismiss an election petition which does not comply with the provisions of Section 15. Explaination.- An order the Designated Court dismissing an election petition under this sub-section shall be deemed to be an order made under clause(a) of sub-section(1) of Section 18.
(2) Where more election petitions than one are presented to the Designated Court in respect of the same election the Designated court may, try them separately or in one or more groups.
(3) Any candidate not already a respondent shall, upon application made by him to the Designated Court within fourteen days from the date of commencement of the trail and subject to any order as to security for costs which may be made by the Designated Court, be entitled to be joined as a respondent.
Explanation.- For the purpose of this section, a trail of petition shall be deemed to commence on the date fixed for the respondents to appear before the Designated Court and answer the claim or claims made in the petition.
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NC: 2023:KHC-D:9415-DB WA No. 100041 of 2022 (4) the Designated Court, may upon such terms as to costs and otherwise as he may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in his opinion be necessary for ensuring a fair and effective trail of the petition, but shall not allow any amendment of the petition, which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.
(5) The trail of an election petition shall, so far as is practicable consistently with the interest of justice in respect of the trail, be continued from day to day until its conclusion, unless the Designated Court finds the adjournment of trail beyond the following day to be necessary for reasons to be recorded.
(6) Every election petition shall be tried as expeditiously as possible and endeavor shall be made to conclude the trail within six months from the date on which the election petition is presented to the Designated Court for trail.
(7) Subject to the provisions of this Act every election petition shall be tried by the Designated Court, as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (Central Act 5 of 1908) to the trial of suits:
Provided that [the Designated Court] shall have discretion to refuse for reasons to be recorded in writing, to examine any witness or witnesses if he is of the opinion that their evidence is not material for the decision of petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.
(8) The provisions of the Indian Evidence Act, 1872 shall subject to the provisions of this Act be deemed to apply in all respects to the trail of the election petition.
(9) Notwithstanding anything in any enactment to the contrary, no document shall be inadmissible in evidence at the trial of the election petition on the ground that it is not duly stamped or registered. -8-
NC: 2023:KHC-D:9415-DB WA No. 100041 of 2022
18. Decision of the Designated Court.- (1) At the conclusion of the trail of an election petition the Designated 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 candidates to have been duly elected.
(2) At the time of making an order under sub- section (1) the Designated Court shall also make an order,-
(a) where any charge is made in the petition of the corrupt practice having been committed at the election, recording.-
(i) a finding whether any corrupt practice has or has not been proved to have been committed at the election and the nature of that corrupt practice; and
(ii) the names of all persons, if any, who have been proved at the trail to have been guilty of any corrupt practice and the nature of that practice; and
(b) fixing the total amount of the costs payable and specifying the person by and to whom costs shall be paid:
Provided that a person who is not a party to the petition shall not be named in the order under sub- clause (ii) of the clause (a) unless,-
(i) he has been given notice to appear before the Designated Court and to show-cause why he should not be so named; and -9- NC: 2023:KHC-D:9415-DB WA No. 100041 of 2022
(ii) if he appears in pursuance of the notice, he has been given an opportunity of cross examining any witness who has already been examined by the Designated Court and has given evidence against him, of calling evidence in his defence and of being heard.
8. A plain reading of Section 17 and 18 of the said Act of 1993 will clearly indicate that it is necessary and essential for the Court to conduct a trial in the election petition and the provisions of Code of Civil Procedure, 1908 are applicable to such trial in election petitions. The proviso to Section 17(7) enables the Court to exercise its discretion to refuse permission to any party who intends to examine any witness or witnesses for reasons to be recorded in writing that the evidence of the proposes witness or witnesses was not material for adjudication of the petition or that the party was doing so on frivolous grounds or with a view to delay/protract the proceedings. However, neither the proviso to Section 17 nor the other provision of Section 17 or 18 enables or empowers the Court to altogether dispense with or waive the procedure/requirement of conducting a trial or to do away with the said procedure in an election petition, particularly, when the same is contested by
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NC: 2023:KHC-D:9415-DB WA No. 100041 of 2022 the parties and involves disputed questions of fact and law which would require adjudication only after a full-fledged trial.
9. In the instant case, a perusal of the order dated 26.11.2021 passed by the trial Court rejecting the application filed by the appellant for permission to adduce evidence of himself and respondent No.9 will clearly indicate that no reasons are forthcoming as to why the said proposed evidence was not material or relevant or that the appellant was seeking to adduce the said evidence only on frivolous grounds or to delay the proceedings. So also, in the final impugned order dated 26.11.2021, no reasons are assigned by the trial Court as to why the procedure and requirement of conducting a trial by refusing to grant permission in favour of the appellant as required under the proviso to Section 17(7) of the said Act of 1993. In other words, in the absence of any reasons recorded by the trial Court in writing thereby dispensing with the requirement of conducting trial in election petitions as required under Section 17 and 18 of the said Act of 1993, we are of the considered opinion that the order and impugned order, both dated 26.11.2021 whereby the trial Court proceeded to allow the petition filed by respondent No.1 without conducting trial is
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NC: 2023:KHC-D:9415-DB WA No. 100041 of 2022 clearly contrary to the said provisions as well as material on record and same deserves to be set-aside.
10. The material on record also discloses that after recounting of votes took place on 27.10.2021, the appellant herein filed an application seeking permission to adduce evidence of himself and the respondent No.9/Election Officer. Subsequently, respondent No.1 filed a memo dated 18.11.2021 specifically contending that out of 69 invalid/rejected votes, 17 votes were valid and he mentioned the specific ballot paper numbers of the said alleged valid votes. Similarly, the appellant also filed a memo dated 20.11.2021 contending that out of 69 invalid/rejected votes, 21 votes were valid and he mentioned the specific ballot paper numbers of the said alleged valid votes. These undisputed facts and circumstances are a pointer to the fact that there was a serious dispute between the parties as regards the numbers and details of the valid votes even after recounting was done by the trial Court on 27.10.2021 and the said dispute as well as other disputed questions of fact and contentious issues that arose in the election petition would necessarily have to be adjudicate only after conducting trial and consequently, the trial Court
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NC: 2023:KHC-D:9415-DB WA No. 100041 of 2022 committed an error in placing reliance only upon the recounting without providing an opportunity to the parties to adduce oral and documentary evidence in support of their respective claims and on this ground also, the impugned orders passed by the trial Court deserve to be set-aside.
11. It is well settled that when one statute/law provides that an act should be done in a particular manner, it has to be done in that manner only and in any other manner as held in several judgments of the Hon'ble Apex Court including Ramchandra Keshav Adke (Dead) By LRs & Others Vs. Govind Joti Chavare & Others1 and Babu Verghese & Others Vs. Bar Council of Kerala & Others2. It is equally well settled that the requirement of conducting trial in election dispute by following principles of natural justice and adhering to the principles of justice and fair play has to be strictly construed and sufficient and reasonable opportunity has to be provided to the parties to establish their rival contentions during trial particularly, when several contentious issues and disputed questions of fact and law arise for consideration between the parties as held by the Hon'ble Apex Court in Jyoti 1 (1975) 1 SCC 559 2 (1993) 3 SCC 422
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NC: 2023:KHC-D:9415-DB WA No. 100041 of 2022 Basu & others Vs. Debi Ghosal & Others3; Kalyan Singh Chouhan Vs. C.P. Joshi4 and Sadashiv H Patil Vs. Vithal D Teke & Others5.
12. In the instant case as stated supra, neither valid and cogent reasons are assigned by the trial Court in order to come to a conclusion as to why requirement of conducting trial was dispensed with and consequently, recounting of votes and results thereof by the trial Court on 27.10.2021 which were disputed by both parties could not have been made the basis by the trial Court to come to the conclusion that the trial was not required in the instant case which is clearly contrary to law as well as the material on record, which conclusively establish that it was incumbent upon the trial Court to conduct a trial and provide sufficient and reasonable opportunity to both parties to substantiate their contentions by adducing their oral and documentary evidence and on this score also, the impugned order passed by the trial Court deserves to be set-aside.
13. A perusal of the impugned order passed by the learned Single Judge will indicate that the sole ground on which 3 1982 (1) SCC 691 4 (2011) 11 SCC 786 5 (2000) 8 SCC 82
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NC: 2023:KHC-D:9415-DB WA No. 100041 of 2022 the claim of the appellant was rejected is, since the appellant had participated in the recounting process, he is estopped from seeking to adduce evidence on the ground of votes are valid or invalid. In our considered view and in view of law laid down by the Hon'ble Apex Court referred to supra coupled with facts and circumstances obtaining in the instant case, which is clear that an opportunity ought to have been granted in favour of the appellant to put-forth his defence by conducting trial, learned Single Judge has misdirected himself in dismissing the writ petition on the sole ground that there is an acquiescence on the part of the appellant and consequently, the impugned order passed by the learned Single Judge deserves to be set-aside.
14. In the result, we proceed to pass the following:
ORDER
a) The appeal stands allowed.
b) The impugned order dated 7.12.2021 passed by learned Single Judge in WP No.104845/2021 and the order dated 26.11.2021 passed in EP No.1/2021 by trial Court are hereby set-aside.
c) The matter is remitted back to the trial Court for reconsideration afresh with a
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NC: 2023:KHC-D:9415-DB WA No. 100041 of 2022 direction to conduct trial and pass appropriate orders in accordance with law.
d) Liberty is reserved in favour of both parties to adduce oral and documentary evidence in support of their respective claims.
e) All rival contentions are kept open and no opinion is expressed on the same.
f) Both the parties are directed to appear before the trial Court on 25.09.2023 without expecting further notice from the Court.
g) The Trial Court shall dispose of the election petition within a period of three months from the date of appearance of both the parties i.e. 25.09.2023 and not later than 21.12.2023.
h) However, since respondent No.1 has assumed office pursuant to the order of the learned Single Judge, it is made clear that the said assumption of office by respondent No.1 would be subject to final outcome of the election petition and respondent No.1 shall not claim any equities in this regard.
i) It is further directed that in the event, election petition filed by respondent No.1 is ultimately dismissed by the trial Court, the trial Court shall also issue further directions including directing the respondent No.1 to handover the charge to the appellant by passing appropriate orders in this regard in
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NC: 2023:KHC-D:9415-DB WA No. 100041 of 2022 the final judgment to be passed in the election petition.
Pending applications, if any, do not survive for consideration and accordingly, they are disposed off.
Sd/-
JUDGE Sd/-
JUDGE RH/JTR List No.: 1 Sl No.: 81