Karnataka High Court

Sri Harish K L vs The District Electoral Officer on 6 December, 2021

Bench: M.Nagaprasanna

                            1



      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 06TH DAY OF DECEMBER, 2021

                          BEFORE

         THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

           WRIT PETITION No.22012 OF 2021 (LB-ELE)

BETWEEN

SRI HARISH K.L.,
S/O.LAKHEGOWDA,
AGED ABOUT 38 YEARS,
R/AT NO.106,
KUNDURU VILLAGE AND POST,
DANDIGANAHALLI HOBLI,
CHANNARAYAPATTAN TALUK,
HASSAN - 573 220.
                                               ... PETITIONER

(BY SMT.PRAMILA NESARGI, SR. COUNSEL FOR SRI HEMANTH
KUMAR D., ADVOCATE (VIDEO CONFERENCING))

AND

1.    THE DISTRICT ELECTORAL OFFICER
      ELECTION COMMISSIONER,
      DEPUTY COMMISSIONER OFFICE
      HASSAN DISTRICT,
      HASSAN - 573 201.

2.    THE STATE ELECTION COMMISSIONER
      NIRVACHANASADHANA,
      NRUPATUNGA ROAD - 560 001,
      BENGALURU , KARNATAKA.

3.    THE NATIONAL ELECTION COMMISSIONER
      NIRVACHANASADHANA,
                           2



     ASHOKA ROAD - 110 001,
     NEW DELHI.

4.   SRI R.SURAJ
     S/O H.D. REVANNA,
     AGED ABOUT 33 YEARS,
     R/AT PADUVALAHIPPE VILLAGE,
     POST KASABA HOBLI,
     HOLENARSIPURA TALUK,
     HASSAN DISTRICT - 573 211.

5.   SRI H.M.VISWANATHA
     S/O LATE H.T.MALLEGOWDA,
     AGED ABOUT 68 YEARS,
     HANJAGODANAHALLI VILLAGE,
     HURUDI POST, HANUBALU HOBLI,
     SAKLESHPURA TALUK,
     HASSAN DISTRICT - 573 134.

6.   SRI M.SHANKAR
     S/O MASTIGOWDA,
     AGED ABOUT 57 YEARS,
     R/AT NAYANA NILAYA,
     BEHIND RMC CHANNARAYAPATNA
     HASSAN DISTRICT - 573 111.

7.   SRI H.D.REVANNA
     S/O DODDEGOWDA,
     AGED ABOUT 46 YEARS,
     R/AT KODAHALLI,
     SAGATAVALLI POST,
     DANDIGARAHALLI HOBLI - 573 111,
     CHANNARAYAPATNA TALUK.
                                          ... RESPONDENTS

(BY SMT.PRATHIMA HONNAPURA, AGA FOR R1 (PHYSICAL
    HEARING)
    SRI S.R.DODAWAD, ADVOCATE FOR R2 & R3 (PHYSICAL
    HEARING))
                              3



     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER PASSED BY THE RESPONDENT NO.1 VIDE ANNEXURE G
DATED 24.11.2021, ACCEPTING THE NOMINATION OF THE
RESPONDENT NO.1 AND ETC.,


    THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

                            ORDER

The petitioner is before this Court calling in question the

action of the first respondent dated 24.11.2021 by which the

nomination of the fourth respondent is accepted and has sought

for a direction by issuance of a writ in the nature of mandamus

directing the respondents 1 to 3 to consider the representation

dated 25.11.2021 in terms of Annexures J, L and M.

2. Heard Smt.Pramila Nesargi, learned Senior Counsel for

Sri.Hemanth Kumar.D., learned counsel for petitioner,

Smt.Prathima Honnapura, learned Additional Government

Advocate for respondent No.1 and Sri.S.R.Dodawad, learned

counsel for respondent Nos.2 and 3.

3. Brief facts of the case leading to the filing of the petition

as borne out from the pleadings are as follows:

The petitioner claims to be a voter in Hassan Local

Authority constituency and also claims to be a member of the

Gram Panchayath from 24-Kunduru Gram Panchayath having

been so elected on 30.12.2020.

4. Elections to the Karnataka Legislative Council for 20

Local Authorities Constituencies was declared by the Election

Commission on 9.11.2021. The calendar of events for the

biennial elections to the Karnataka Legislative Council from 20

Local Authorities so notified is as follows:

S.No.                        Events                                Dates
1.      Issue of Notifications                          16th    November,   2021
                                                        (Tuesday)
2.      Last date of making nominations                 23rd     November,  2021
                                                        (Tuesday)
3.      Scrutiny of nominations                         24th    November,   2021
                                                        (Wednesday)
4.      Last date for withdrawal of candidatures        26th    November,   2021
                                                        (Friday)
5.      Date of Poll                                    10th December, 2021
                                                        (Friday)
6.      Hours of Poll                                   08:00 am to 04:00 pm
7.      Counting of Votes                               14th     December,  2021
                                                        (Tuesday)
8.      Date before which election shall be completed   16th     December,  2021
                                                        (Thursday)

Pursuant to the notification issued, as aforesaid, respondents 4

to 7 filed their nominations before the first respondent Returning

Officer. The fourth respondent appears to have filed his

nomination before the Retuning Officer representing Janata Dal

Secular on 19.11.2021. Along with his nomination a declaration

affidavit is also filed declaring his assets and liabilities and other

information as required under law. The allegation of the

petitioner in the present petition is restricted to the nomination

of the fourth respondent and its acceptance by respondent No.1.

5. In terms of the calendar of events the date fixed for

nomination was 23.11.2021. The nomination papers were

scrutinized and the Returning Officer accepted the nomination of

the fourth respondent on 24.11.2021. After the said act of the

Returning Officer accepting the nomination of the fourth

respondent, one Devarajegowda, an Advocate filed his

objections/representations to acceptance of such nomination

and submitted the same to all the three official respondents 1, 2

and 3. Non-consideration of those representations along with

the grievance of acceptance of nomination, by the first

respondent, has driven the petitioner to this Court.

6. The learned Senior Counsel Smt.Pramila Nesargi

appearing for the petitioner would contend that the fourth

respondent has filed a false affidavit of declaration along with his

nomination with regard to several aspects by suppression of

material facts. The information suppressed according to the

learned Senior Counsel are as follows:

(i) The status of the fourth respondent regarding his

marriage is suppressed;

(ii) assets and liabilities of his wife and family members are

suppressed;

(iii) Holding of current account at Karnataka Bank,

Holenarasipura branch wherein balance of more than

Rs.15,00,000/- being present is suppressed.

The learned Senior Counsel would submit that these

suppressions are so material that the nomination of the fourth

respondent ought to have been rejected and the representations

submitted by Devarajegowda ought to have been considered.

The learned Senior Counsel would place reliance upon the

following judgments:

(i) SHALIGRAM SHRIVASTAVA VS. NARESH SINGH PATEL

- (2003) 2 SCC 176

(ii) RESURGENCE INDIA VS. ELECTION COMMISSION OF INDIA AND ANOTHER

- (2014) 14 SCC 189

(iii) KISAN SHANKAR KATHORE VS. ARUN DATTATRAY SAWANT AND OTHERS

- (2014) 14 SCC 162

7. On the other hand, the learned Additional Government

Advocate Smt.Prathima Honnapura and the learned counsel

Sri.S.R.Dodawad appearing for respondents 1 to 3, would in

unison contend that the writ petition is not maintainable once

the elections are notified and improper acceptance of nomination

is also one such ground that can result in annulment of election

of a returned candidate and would place reliance upon the

judgment in the case of KRISHNAMOORTHY VS. SIVAKUMAR

AND OTHERS - (2015)3 SCC 467.

8. I have given my anxious consideration to the

submissions made by the learned Senior Counsel and the

respective learned counsel appearing for the respondents and

have perused the material on record.

9. The only issue that falls for my consideration is whether

the writ petition, at this juncture, with regard to improper

acceptance of nomination, is maintainable?

10. The calendar of events are notified on 09.11.2021.

Last date for submitting nominations in terms of the calendar of

events was 23.11.2021. The nomination submitted by the

fourth respondent is on 19.11.2021. Scrutiny of nominations

were to be held on 24.11.2021. Scrutiny of nominations did

take place on 24.11.2021 and nomination of the fourth

respondent was accepted by the first respondent Returning

Officer on 24.11.2021. One Devarajegowda submits his

objections to respondents 1, 2 and 3 on 25.11.2021. The writ

petition is filed on 02.12.2021. The election is scheduled to be

held on 10.12.2021.

11. Nominations are filed under Section 30 of the

Representation of People Act, 1951 ('Act' for short). Rejection

and acceptance of nomination is under Section 33 of the Act..

Section 33A deals with the rights of the voter to know the

complete information of a candidate who contests in the election.

Section 36 deals with the scrutiny of the nomination. Section

100 deals with regard to grounds on which the elections can be

declared to be void and reads as follows:

"100. Grounds for declaring election to be void.-- 6[(1) Subject to the provisions of sub-section (2) if 4[the High Court] is of opinion--

a. that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act 7[***] 8[or the Government of Union Territories Act, 1963 (20 of 1963)]; or b. that any corrupt practice has been committed by a returned candidate or his

election agent or by any other person with the consent of a returned candidate or his election agent; or c. that any nomination has been improperly rejected; or d. that the result of the election, in so far as it concerns a returned candidate, has been materially affected--

(i) by the improper acceptance or any nomination, or

(ii) by any corrupt practice committed in the interests of the returned candidate 1[by an agent other than his election agent], or

(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or

(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, 2[the High Court] shall declare the election of the

returned candidate to be void.]

3[(2)]If in the opinion of 2[the High Court], a returned candidate has been guilty by an agent other than his election agent, of any corrupt practice 4[***] but 2[the High Court] is satisfied--

(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and 8[without the consent], of the candidate or his election agent;

6[***]

(c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt 7[***] practices at the election; and

(d) that in all other respects the election was free from any corrupt 7[***] practice on the part of the candidate or any of his agents, then 2[the High Court] may decide that the election of the returned candidate is not void."

(Emphasis supplied)

Section 100(1)(d)(i) deals with one such ground on which

an election could be declared void which is 'improper

acceptance' of a nomination. The allegation in the petition is

that the act of the first respondent is erroneous as he has

improperly accepted the nomination of the fourth respondent.

This is also a ground that can be urged by the petitioner in an

election petition in the event the fourth respondent emerges

victorious.

12. The contention of the learned Senior Counsel that

further election should be stayed in the light of the interim order

that is sought is unacceptable as it is trite that this Court would

be loathe to pass any order that would stall the process of

election and would consider passing any order that would carry

forward the election process. The issue with regard to this Court

interfering with election process once the calendar of events are

notified by the Election Commission is no longer res integra in

the light of the judgments rendered by the Apex Court in the

case of N.P. PONNUSWAMI V. RETURNING OFFICER,

NAMAKKAL CONSTITUENCY - AIR 1952 SC 64 and later, in

the case of MOHINDER SINGH GILL V. CHIEF ELECTION

COMMR. - AIR 1978 SC 851. Both the aforesaid judgments are

followed in the subsequent judgment of the Apex Court in the

case of ELECTION COMMISSION OF INDIA V. ASHOK KUMAR1,

wherein it has held as follows:

"29. Section 100 of the Representation of the People Act, 1951 needs to be read with Article 329(b), the former being a product of the latter. The sweep of Section 100 spelling out the legislative intent would assist us in determining the span of Article 329(b) though the fact remains that any legislative enactment cannot curtail or override the operation of a provision contained in the Constitution. Section 100 is the only provision within the scope of which an attack on the validity of the election must fall so as to be a ground available for avoiding an election and depriving the successful candidate of his victory at the polls. The Constitution Bench in Mohinder Singh Gill case [(1978) 1 SCC 405 : AIR 1978 SC 851] (vide SCC p. 429, para 33) asks us to read Section 100 widely as "covering the whole basket of grievances of the candidates". Sub-

clause (iv) of clause (d) of sub-section (1) of Section 100 is a "residual catch-all clause". Whenever there has

(2000) 8 SCC 216

been non-compliance with the provisions of the Constitution or of the Representation of the People Act, 1951 or of any Rules or Orders made thereunder if not specifically covered by any other preceding clause or sub-clause of the section it shall be covered by sub- clause (iv). The result of the election insofar as it concerns a returned candidate shall be set aside for any such non-compliance as the abovesaid subject to such non-compliance, also satisfying the requirement of the result of the election having been shown to have been materially affected insofar as a returned candidate is concerned. The conclusions which inevitably follow are: in the field of election jurisprudence, ignore such things as do not materially affect the result of the election unless the requirement of satisfying the test of material effect has been dispensed with by the law; even if the law has been breached and such breach satisfies the test of material effect on the result of the election of the returned candidate yet postpone the adjudication of such dispute till the election proceedings are over so as to achieve, in larger public interest, the goal of constituting a democratic body without interruption or delay on account of any controversy confined to an individual or group of individuals or single constituency having arisen and demanding judicial determination.

30. To what extent Article 329(b) has an overriding effect on Article 226 of the Constitution? The two Constitution Benches have held that Representation of the People Act, 1951 provides for only one remedy; that remedy being by an election petition to be presented after the election is over and there is no remedy provided at any intermediate stage. The non obstante clause with which Article 329 opens, pushes out Article 226 where the dispute takes the form of calling in question an election (see para 25 of Mohinder Singh Gill case [(1978) 1 SCC 405 : AIR 1978 SC 851] ). The provisions of the Constitution and the

Act read together do not totally exclude the right of a citizen to approach the court so as to have the wrong done remedied by invoking the judicial forum; nevertheless the lesson is that the election rights and remedies are statutory, ignore the trifles even if there are irregularities or illegalities, and knock the doors of the courts when the election proceedings in question are over. Two-pronged attack on anything done during the election proceedings is to be avoided -- one during the course of the proceedings and the other at its termination, for such two-pronged attack, if allowed, would unduly protract or obstruct the functioning of democracy.

31. The founding fathers of the Constitution have consciously employed use of the words "no election shall be called in question" in the body of Section 329(b) and these words provide the determinative test for attracting applicability of Article 329(b). If the petition presented to the Court "calls in question an election" the bar of Article 329(b) is attracted. Else it is not.

32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove:

(1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.

(2) Any decision sought and rendered will not amount to "calling in question an election" if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.

(3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.

(4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the court.

(5) The court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the court would act with

reluctance and shall not act, except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material."

(Emphasis supplied)

In the light of the law laid down by the Apex Court in the

aforesaid cases, the writ petition filed by the petitioner would not

be maintainable insofar as the first prayer is concerned.

13. The second prayer of the petitioner is consideration of

the representation dated 25.11.2021 which are in the form of

objections to declare the fourth respondent as not being

qualified to contest the elections. The said objections are filed

by one Devarajegowda. The petitioner is not Devarajegowda.

Petitioner has no right to seek a direction, by issuance of a writ

in the nature of mandamus, to consider representation given by

someone else. Therefore, the said prayer also cannot be granted

to the petitioner. Even otherwise, it is seen from the records

that an order considering the objections is already passed by the

first respondent on 25.11.2021 and is communicated to the said

Devarajegowda.

14. Insofar as the judgments relied on by the learned

Senior Counsel for the petitioner in the cases of SHALIGRAM

SHRIVASTAVA, RESURGENCE INDIA and KISAN SHANKAR

KATHORE, the said judgments are distinguishable on the facts

obtaining in the case at hand without much ado, as could be

seen from facts obtaining in each of the cases.

15. In the case of SHALIGRAM SHRIVASTAVA, the Apex

Court was examining the result of an election petition as could

be seen from the preamble to the judgment, which is as follows:

" The defeated candidate in the bye-election held in February 2000 to the Legislative Assembly, Madhya Pradesh from Bhojpur Assembly Constituency, filed an election petition in the High Court of Madhya Pradesh challenging the declaration of the respondent as elected from the aforesaid assembly constituency. The election petition has been dismissed, hence this appeal."

In the case of KISAN SHANKAR KATHORE again the Apex

Court was examining an order passed in election petition. This

fact can be gathered from the preamble of the judgment which is

as follows:

"The appellant herein was the successful candidate in the election of Legislative Assembly, which he contested from 56, Ambernath Constituency, Thane District, Maharashtra. There were five candidates in the fray for which the elections were held on 13-10-2004 and the results were declared on 16-10-2004. After he was declared elected, his election was challenged by the first respondent, who is a voter in the said constituency. He filed the election petition in the High Court of Judicature of Bombay stating that the appellant's nomination had been improperly accepted by the Returning Officer and the election was void due to non-compliance with the provisions of the Constitution of India, the Representation of the People Act, 1951 (hereinafter referred to as "the Act") as well as the Rules and Orders framed under the said Act."

Therefore, the said judgments would not come in aid of the

learned Senior Counsel to contend that an examination at the

hands of this Court with regard to scrutiny of nominations,

acceptance or rejection of nomination would be maintainable

during the process of elections.

16. The other judgment is in the case of RESURGENCE

INDIA where the Apex Court considers the right of a voter to

know full particulars of a candidate who is to represent the said

voter and the like. This judgment again would not aid the

contention of the learned Senior Counsel. Therefore, in the light

of the afore-narrated facts and the judgments rendered by the

Apex Court, I do not find any merit to entertain the writ petition