Chandrakala W/O Jagannathreddy vs The Karnataka Election ...
2021 Latest Caselaw 6152 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH                      ®
      DATED THIS THE 15TH DAY OF DECEMBER 2021

                        PRESENT

          THE HON'BLE MR.JUSTICE R. DEVDAS
                          AND
     THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

          WRIT APPEAL NO.200138/2021 (LB-ELE)


BETWEEN:

CHANDRAKALA W/O JAGANNATHREDDY
AGE. 61 YEARS, OCC. HOUSEHOLD,
R/O. DEGALMADI, TQ. CHINCHOLI,
DIST. KALABURAGI.
                                        ...APPELLANT
(BY SMT.HEMA L KULAKARNI, ADVOCATE)

AND:

1.     THE KARNATAKA STATE ELECTION COMMISSION
       CUNNINGHAM ROAD, BENGALURU,
       THROUGH ITS SECRETARY-01.

2.     THE DEPUTY COMMISSIONER
       CUM DISTRICT ELECTION OFFICER,
       KALABURAGI-585103.

3.     THE RETURNING OFFICER
       GRAM PANCHAYAT 01-DEGALMADI,
       TQ. CHINCHOLI,
       DIST. KALABURAGI-585307.
                           2



4.   THE TAHSILDAR
     DEGALMADI,
     TQ. CHINCHOLI,
     DIST. KALABURAGI-585307.

5.   SMT.ERAMMA
     W/O NAGAPPA RACHOTI
     AGED ABOUT 55 YEARS,
     OCC. HOUSEHOLD,
     MEMBER OF GRAM PANCHAYAT DEGALMADI,
     TQ. CHINCHOLI,
     DIST. KALABURAGI-585307.

                                      ...RESPONDENTS

(BY SRI.AMARESH S.ROJA, ADVOCATE FOR R1 & R3;
  SRI.SHIVAKUMAR R.TENGLI, AGA FOR R2 & R4;
   SRI.V.K. NAYAK, ADVOCATE FOR R5)

     THIS WRIT APPEAL IS FILED U/S.4 OF THE KARNATAKA
HIGH COURTS ACT, PRAYING TO CALL FOR THE RECORDS AND
TO SET ASIDE THE ORDER OF THE LEARNED SINGLE JUDGE
PASSED IN WP NO.200061/2021 DATED 26.07.2021 AND
ALLOW THE WRIT PETITION.

      THIS APPEAL COMING ON FOR PRELIMINARY HEARING
THIS DAY, R.DEVDAS J., DELIVERED THE FOLLOWING:

                     JUDGMENT

R. DEVDAS J., (ORAL):

This intra-Court writ appeal is filed, seeking to

assail the order of the learned Single Judge in

W.P.No.200061/2021 dated 26.07.2021 and to issue a

writ of mandamus directing respondent Nos.2 and 3 to

consider the representation dated 30.12.2020 and

05.01.2021 at Annexures-C and E, annexed to the

writ petition.

2. The appellant herein was a candidate who

contested the elections to ward No.6 of Degalmadi

Gram Panchayat. The votes were counted by

respondent No.3 on 30.12.2020 and it was found that

both the petitioner and respondent No.5 herein had

secured 349 votes each. Respondent No.3 exercised

his powers under Rule 73 of the Karnataka Panchayat

Raj (Conduct of Election) Rules, 1993 (herein after

referred to as 'Rules 1993', for short) and declared

respondent No.5 as the returned candidate. The

appellant herein had submitted a representation in

writing seeking for a recount of the votes on the

ground that the same was not counted properly.

Respondent No.3, who received the representation at

6.55 p.m. on 30.12.2020, according to the appellant,

did not consider the same, but declared respondent

No.5 as returned candidate.

3. Earlier, the writ petition filed by the

appellant herein was allowed by order dated

02.02.2021 while directing the respondent No.3-

returning officer to recount the votes within a period

of four days from the date of receipt of a certified

copy of the order. However, respondent No.5 herein

preferred intra-Court appeal in W.A.No.200039/2021,

which was clubbed with Contempt Petition

No.200050/2021 filed at the hands of the appellant

herein. A co-ordinate bench of this Court by order

dated 29.03.2021, held that the order passed by the

learned Single Judge on 02.02.2021 directing

recounting of the votes was without hearing

respondent No.5, who was declared as returned

candidate. On that short ground, appeal was allowed

and the order dated 02.02.2021 passed by the learned

Single Judge was interfered with on the limited ground

that the order could not have been passed without

hearing the returned candidate. The writ petition was

restored and the parties were directed to appear

before the learned Single Judge, while the learned

Single Judge was requested to hear the matter afresh.

Thereafter, the learned Single Judge heard all the

parties and passed the impugned order dated

26.07.2021, dismissing the writ petition filed at the

hands of the appellant herein.

4. The ground on which the writ petition is

dismissed is that on perusal of the representation

given by the appellant herein, it was clear that there

was no ground made out as prescribed under Rule

71(2) of the Rules, 1993 except for an omnibus

statement that the votes were not counted properly.

The learned Single Judge held that the writ petitioner

had to plead specific grounds for seeking recounting of

the votes as her election agent would be privy to all

the proceedings before the Returning Officer. The

learned Single Judge held that the petitioner cannot

claim that she would explain the reasons before the

Returning Officer, as Rule 71 mandated the Returning

Officer to apply his mind before accepting the reasons

seeking recounting of the votes. Further, it was held

that though the Court had recorded an initial finding

that the petitioner's representation had to be

mandatorily considered by the Returning Officer, but

yet, that would result in an empty formality as the

petitioner had not made out any ground to recount

the votes. The learned Single Judge therefore

dismissed the writ petition holding that it would be a

wasteful exercise to direct the Returning Officer to

consider the representations given by the writ

petitioner.

5. This matter had come up for admission last

week and this Court had posed a question to the

learned counsel for the appellant as to how the writ

petition was maintainable, since the process of

election and declaration of results could only be

challenged by a duly constituted election petition as

provided under Section 15 of the Karnataka Gram

Swaraj and Panchayat Raj Act, 1993 (hereinafter

referred to as the 'Act' for short). We had further

pointed out to Section 19 of the Act which provided

grounds for declaration of election to be void. One of

the grounds being that the result of the election,

insofar as it concerns a returned candidate, has been

materially affected by the improper reception, refusal

or rejection of any vote or reception of any vote which

is void or by any non-compliance with the provisions

of the Act or of any Rules or orders made thereunder,

as provided under Section 19 (1) (d) (iii) and (iv) of

the Act. The learned counsel for the appellant has

once again reiterated the very same submission as

was made before the learned Single Judge that the

appellant is not challenging or seeking a declaration of

the election to be void and on the other hand it is a

simple representation seeking a direction to the

Returning Officer to recount the votes.

6. In our considered opinion, the submission

of the learned counsel for the appellant is required to

be rejected on the ground that writs cannot be issued

in futility. The purpose behind which the appellant is

seeking recounting of the votes is that there has been

some discrepancy and if recounted, the result would

be different and consequently on recounting if it is

found that the appellant has secured more votes than

the returned candidate, it would enable her to seek a

declaration that the results declared by the Returning

Officer is void and perhaps to declare the appellant as

the returned candidate. As regards the submission of

the learned counsel for the appellant that as per the

prayer made in the writ petition, the appellant herein

is only seeking for a recount and nothing else, it is

necessary to reject such submission as a submission

in futility. The law is well settled in this regard that

this Court exercising the extraordinary jurisdiction

under Articles 226 and 227 of the Constitution of India

would not issue writs in futility. The learned Single

Judge has rightly held that it would be an empty

formality if the Returning Officer is directed to

consider the representation of the petitioner.

7. In this regard, it is also necessary to

observe that the rigours of the provisions contained in

Order II Rule 2 (2) of Code of Civil Procedure, 1908

get attracted in such cases. Clause(1) of Rule 2

requires that every suit shall include the whole of the

claim which the plaintiff is entitled to make in respect

of the cause of action. Clause (2) of Rule 2 mandates

that where a plaintiff omits to sue in respect of, or

intentionally relinquishes, any portion of his claim, he

shall not afterwards sue in respect of the portion so

omitted or relinquished. One of the reasons behind

these provisions is that there should be prevention of

endless litigation, wastage of Court's precious time

and abuse of legal procedure by litigants. Interest

Reipublicae Ut Sit Finis Litium, i.e., it is in the interest

of the society that litigation comes to an end.

Therefore, if a plaint attracts Section 12 of CPC, it is

automatically not maintainable.

8. It is undisputed fact that the results of the

elections were declared on 30.12.2020 and if the

appellant herein was aggrieved by the declaration of

the results, even on the ground that her

representation seeking recounting of the votes was

not considered by the Returning Officer or that the

Returning Officer had not followed the provisions of

the Act or the Rules or orders made thereunder, the

appellant was required to file a duly constituted

election petition within 30 days from the date of

declaration of the result of the election, in terms of

Section 15 of the Act. The appellant having failed to

file an election petition within the prescribed period,

would be precluded from filing an election petition

beyond the prescribed period. Therefore, even if a

direction was issued to the Returning Officer to

recount the votes, and on recounting, a different

result would emerge showing the appellant had

received more votes than any other candidate, it

would not enure to the benefit of the appellant as she

cannot seek a declaration that the election is void.

9. For the reasons stated above, we are of the

considered opinion that this writ appeal is bereft of

any merit. Consequently, we proceed to dismiss the

appeal accordingly.

Sd/-

JUDGE

Sd/-

JUDGE

msr/swk