G R Basavanagowda vs State Election Commission
2021 Latest Caselaw 6928 Kant

                            1



      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 21ST DAY OF DECEMBER, 2021

                          BEFORE

         THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

            WRIT PETITION No.23214/2021 (LB- ELE)

BETWEEN

G.R.BASAVANAGOWDA
AGED ABOUT 38 YEARS
S/O.G.A.RUDRAPPA
STREET- 1, ODEYARA HATTUR POST
GADIKATTE, VADERAHATHUR - 577 223
DAVANAGERE DISTRICT
                                      ... PETITIONER

(BY SRI VINAYA KEERTHY M., ADVOCATE (PHYSICAL HEARING))

AND

1.    STATE ELECTION COMMISSION
      REPRESENTED BY ITS
      PRECIDING OFFICER
      1ST FLOOR, KARNATAKA STATE CO- OP
      MARKETING FEDERATION BUILDING
      NO.8, CUNNINGHAM ROAD
      BENGALURU - 560 052

2.    DEPUTY COMMISSIONER
      DAVANAGERE DISTRICT
      DAVANAGEE - 577 201

3.    ELECTION OFFICER
      NYAMTI TALUK
      DAVANAGERE DISTRICT - 577 201
                                 2



4.      TAHSILDAR
        NYAMTI & HONNALLI TALUK
        NYAMTI, DAVANAGERE DISTRICT - 577 201
                                         ... RESPONDENTS
(BY SRI K.N.PHANINDRA, SR.COUNSEL FOR
   SMT.VAISHALI HEGDE, ADVOCATE FOR
    R- 1 (PHYSICAL HEARING);
  SMT.PRATHIMA HONNAPURA, AGA FOR R-2 TO R- 4)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 29.11.2021 WITH RESPECT TO NO.10
VODEYARAHATHUR     GRAMA     PANCHAYAT,  NYAMTI   TALUK,
DAVANAGERE DSITRICT ANNEXURE- H ISSUED BY THE R- 1.

    THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
                       ORDER

The petitioner is before this Court calling in question the

calendar of events notified on 29.11.2021, for holding of

elections for all the casual vacancies in the Panchayats in the

State of Karnataka and one such Panchayats is the

Vodeyarahathur Grama Panchayat, from Kooganahalli

constituency of Nyamati Taluk, Davanagere District.

2. Heard Sri Vinaya Keerthy M., learned counsel appearing

for the petitioner, Sri K.N.Phanindra, learned senior counsel for

Smt. Vaishali Hegde, learned counsel appearing for the first

respondent and Smt. Prathima Honnapura, learned Additional

Government Advocate appearing for respondent Nos.2 to 4 and

perused the material on record.

3. The election of the incumbent who had been elected on

30.12.2020, as the member of the Vodeyarahathur Grama

Panchayat, Kooganahalli constituency was called in question by

the petitioner on the ground that several irregularities had taken

place during the process of counting of votes. On the said

ground, the petitioner files an election petition No.2/2021,

under Section 15 of the Karnataka Gram Swaraj and Panchayat

Raj Act, 1993 (for short 'the Act'), which is pending adjudication

before the competent Court.

4. During the pendency of the said election petition, the

elected and declared candidate died on 30.06.2021 and the

proceedings before the Election Tribunal continued by recording

of evidence as the issue before the Election Tribunal was with

regard to irregularities in counting of votes and had also sought

for recounting of votes. Owing to the death of the declared

candidate, in terms of the law elections were declared by

issuance of the calendar of events dated 29.11.2021, for all the

casual vacancies in all the Panchayats of the State of Karnataka

as observed hereinabove is issued and one such panchayat was

the subject constituency. It is in that point in time, the

petitioner has filed this petition, on the score that the election be

stalled to the said constituency till the election petition is

concluded.

5. Admittedly, the petition is filed on 10.12.2021 after

issuance of the calendar of events and any order that would be

passed in this petition would result in stalling the process of

election, which is slated to be held on 30.12.2021. An order

stalling the election process will fall foul of the law laid down by

the Apex Court in the case of N.P. PONNUSWAMI V.

RETURNING OFFICER, NAMAKKAL CONSTITUENCY1, wherein,

the Apex Court has held as follows:

"23. A reference to the election rules made under the Government of India Acts of 1919 and 1935 will show that the provisions in them on the

AIR 1952 SC 64

subject were almost in the same language as Article 329(b). The corresponding rule made under the Government of India Act, 1919, was Rule 31 of the electoral rules, and it runs as follows:

"No election shall be called in question, except by an election petition presented in accordance with the provisions of this Part."

It should be noted that this rule occurs in Part VII, the heading of which is "The final decision of doubts and disputes as to the validity of an election".

These words throw some light on the function which the election tribunal was to perform, and they are the very words which the learned counsel for the appellant argued, ought to have been used to make the meaning clear.

24. The same scheme was followed in the election rules framed under the Government of India Act, 1935, which are contained in "The Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order, 1936", dated the 3rd July, 1936. In that Order, the rule corresponding to Rule 31 under the earlier Act, runs thus:

"No election shall be called in question except by an election petition presented in accordance with the provisions of this Part of the Order."

This rule is to be found in Part III of the Order, the heading of which is "Decision of doubts and disputes as to validity of an election and disqualification for corrupt practices."

25. The rules to which I have referred were apparently framed on the pattern of the corresponding provisions of the British Acts of 1868 and 1872, and they must have been intended to cover the same ground as the provisions in England have been understood to cover in that country for so many years. If the language used in Article 329(b) is considered against this historical background, it should not be difficult to see why the framers of the Constitution framed that provision in its present form and chose the language which had been consistently used in certain earlier legislative provisions and which had stood the test of time.

26. And now a word as to why negative language was used in Article 329(b). It seems to me that there is an important difference between Article 71(1) and Article 329(b). Article 71(1) had to be in an affirmative form, because it confers special jurisdiction on the Supreme Court which that Court could not have exercised but for this article. Article 329(b), on the other hand, was primarily intended to exclude or oust the jurisdiction of all courts in regard to electoral matters and to lay down the only mode in which an election could be challenged. The negative form was therefore more appropriate, and, that being so, it is not surprising that it was decided to follow the pre-existing pattern in which also the negative language had been adopted.

27. Before concluding, I should refer to an argument which was strenuously pressed by the learned counsel for the appellant and which has been reproduced by one of the learned Judges of the High Court in these words:

"It was next contended that if nomination is part election, a dispute as to the validity of nomination is a dispute relating to election and that can be called in question only in accordance with the provisions of Article 329(b) by the presentation of an election petition to the appropriate Tribunal and that the Returning Officer would have no jurisdiction to decide that matter, and it was further argued that Section 36 of Act 43 of 1951 would be ultra vires inasmuch as it confers on the Returning Officer a jurisdiction which, Article 329(b) confers on a Tribunal to be appointed in accordance with the article."

This argument displays great dialectical ingenuity, but it has no bearing on the result of this appeal and I think it can be very shortly answered. Under Section 36 of the Representation of the People Act, 1951, it is the duty of the Returning Officer to scrutinize the nomination papers to ensure that they comply with the requirements of the Act and decide all objections which may be made to any nomination. It is clear that unless this duty is discharged properly, any number of candidates may stand for election without complying with the provisions of the Act and a great deal of confusion may ensue. In discharging the statutory duty imposed on him, the Returning Officer does not call in question any election. Scrutiny of nomination papers is only a stage, though an important stage, in the election process. It is one of the essential duties to be performed before the election can be completed, and anything done towards the completion of the election proceeding can by no stretch of reasoning be described as questioning the election. The fallacy of

the argument lies in treating a single step taken in furtherance of an election as equivalent to election. The decision of this appeal however turns not on the construction of the single word "election", but on the construction of the compendious expression -- "no election shall be called in question" in its context and setting, with due regard to the scheme of Part XV of the Constitution and the Representation of the People Act, 1951. Evidently, the argument has no bearing on this method of approach to the question posed in this appeal, which appears to me to be the only correct method.

The same is followed by the Apex Court in plethora of judgments

and the Apex Court in its later judgment in the case of

ELECTION COMMISSION OF INDIA V. ASHOK KUMAR2, holds

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

(2000) 8 SCC 216

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 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.

33. These conclusions, however, should not be construed as a summary of our judgment. These have to be read along with the earlier part of our judgment wherein the conclusions have been elaborately stated with reasons.

34. Coming back to the case at hand it is not disputed that the Election Commission does have power to supervise and direct the manner of counting of votes. Till 22-9-1999 the Election Commission was of the opinion that all the ballot boxes of one polling station will be distributed to one table for counting the ballot papers and that would be the manner of

counting of votes. On 28-9-1999 a notification under Rule 59-A came to be issued. It is not disputed that the Commission does have power to issue such notification. What is alleged is that the exercise of power was mala fide as the ruling party was responsible for large-scale booth capturing and it was likely to lose the success of its candidates secured by committing an election offence if material piece of evidence was collected and preserved by holding polling-station wise counting and such date being then made available to the Election Tribunal. Such a dispute could have been raised before and decided by the High Court if the dual test was satisfied:

(i) the order sought from the Court did not have the effect of retarding, interrupting, protracting or stalling the counting of votes and the declaration of the results as only that much part of the election proceedings had remained to be completed at that stage,

(ii) a clear case of mala fides on the part of Election Commission inviting intervention of the Court was made out, that being the only ground taken in the petition.

A perusal of the order of the High Court shows that one of the main factors which prevailed with the High Court for passing the impugned order was that the learned Government Advocate who appeared before the High Court on a short notice, and without notice to the parties individually, was unable to tell the High Court if the notification was published in the Government Gazette. The power vested in the Election Commission under Rule 59-A can be exercised only by means of issuing notification in the Official Gazette. However, the factum of such

notification having been published was brought to the notice of this Court by producing a copy of the notification. Main pillar of the foundation of the High Court's order thus collapsed. In the petitions filed before the High Court there is a bald assertion of mala fides. The averments made in the petition do not travel beyond a mere ipse dixit of the two petitioners that the Election Commission was motivated to oblige the ruling party in the State. From such bald assertion an inference as to mala fides could not have been drawn even prima facie. On the pleadings and material made available to the High Court at the hearing held on a short notice we have no reason to doubt the statement made by the Election Commission and contained in its impugned notification that the Election Commission had carefully considered the matter and then decided that in the light of the prevailing situation in the State and in the interests of free and fair election and also for safety and security of electors and with a view to preventing intimidation and victimisation of electors in the State, a case for direction attracting applicability of Rule 59-A for counting of votes in the constituencies of the State, excepting the two constituencies where electronic voting machines were employed, was made out. Thus, we find that the two petitioners before the High Court had failed to make out a case for intervention by the High Court amidst the progress of election proceedings and hence the High Court ought not to have made the interim order under appeal though the impugned order did not have the effect of retarding, protracting, delaying or stalling the counting of votes or the progress of the election proceedings. The High Court was perhaps inclined to intervene so as to take care of an alleged aberration and maintain the flow of election stream within its permissible bounds."

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

extracted judgments, the writ Court would not entertain the

petition, which would result in directing stalling of the process of

election. Therefore, in the light of the afore-extracted judgments,

I decline to interfere with the impugned calendar of events and

the relief sought by the petitioner, at this juncture.

6. Since the election petition is pending adjudication before

the competent Court, the elections that would be held to the said

constituency and declaring results of the elections will be

subject to the outcome of the election petition.

7. For the aforesaid reasons, the writ petition is disposed.

Sd/-

JUDGE

nvj CT:MJ