Rashida Begum vs The Karnataka State Election ...
2021 Latest Caselaw 7008 Kant

                            1                         R
           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 22ND DAY OF DECEMBER, 2021

                         BEFORE

           THE HON'BLE MR. JUSTICE M.I.ARUN

       WRIT PETITION NO.202550/2021 (LB-ELE)

Between:
Smt. Rashida Begum
W/o Mohammed Hussain Khazi
Age: 41 years
Occ: Household and Social Work
R/o Ward No.10, Near Jamiya Masjid
Maski, Dist. Raichur
                                            ... Petitioner
(By Smt. Hema L. Kulkarni, Advocate)

And:
1.     The Karnataka State Election Commission
       Behind Karnataka State Marketing Board
       Building, 1st Floor, No.8
       Cunningham Road, Bangaore-52
       Represented by its Commissioner

2.     The Deputy Commissioner, Raichur
       Dist. Raichur - 584 102

3.     The Returning Officer
       Town Municipal Council
       Ward No.12 to 23, Maski
       Dist. Raichur - 584 124
                                          ... Respondents
(Sri Amresh S. Roja, Advocate for R1;
 Sri Mallikarjun C. Basareddy, HCGP for R2 & R3)
                              2


       This Writ Petition is filed under Articles 226 and 227
of the Constitution of India, praying to issue a writ of
certiorari quashing the impugned order dated 16.12.2021
passed by respondent No.3 as per Annexure-F in file
No.Chunavane/2021-22 passed by respondent No.3 and
issue a writ of mandamus directing respondent No.3 to
accept the nomination of the petitioner and permit the
petitioner to contest the Election for Ward No.19 of Maski
Town Municipal Council Member.

      This petition coming on for Dictating Orders this day,
the Court made the following:

                         ORDER

The petitioner is an aspirant for contesting the

election from Ward No.19 of Maski Town Municipal Council

from the Indian National Congress Party (for short 'INC').

The petitioner has filed the nomination from the INC on

15.12.2021. Another candidate who is contesting the same

election, making certain allegations against the petitioner

herein has filed a complaint before respondent No.3 with a

prayer to reject the nomination of the petitioner. Pursuant

to the same, by making a summary enquiry, respondent

No.3 has rejected the nomination of the petitioner.

Aggrieved by the same, the petitioner has preferred the

instant writ petition.

2. The contention of the petitioner is that, her

nomination has been rejected on the ground that the

petitioner has sought to contest the election as a candidate

from INC, in this regard INC has issued Form-A duly

signed by the working President of the State unit of INC

and that signature does not tally with the signature on

Form-B submitted by the petitioner. It is her further

contention that by looking at the two signatures, one can

conclude that the signature does tally. The copy of Forms-

A and B together are produced herewith as Annexure-B to

the writ petition. It is further contended that the same is

done without conducting any enquiry as contemplated in

law.

3. Per contra, learned counsel for the respondents

submitted that the nomination of the petitioner has been

rejected in accordance with law. The impugned order

records that upon verification, respondent No.3 concluded

that the signatures on Form-A and Form-B vary from one

another and that he tried to contact the petitioner through

the mobile number given so that he can hear her before

passing any orders, but as she did not respond, the

impugned order is passed based on the material available.

4. Learned counsel for the respondents further

submit that the superintendence, direction and control of

the preparation of electoral rolls for, and the conduct of, all

elections to the Municipalities is vested in the State

Election Commission and as per Article 243ZG of the

Constitution of India, there is a bar to interference by

courts in electoral matters. The learned counsel further

relies upon the provisions of Sections 21 and 23 of the

Karnataka Municipalities Act, 1964 and state that any

grievance relating to elections including what is raised in

the instant writ petition can be raised only by way of an

election petition and this Court should not entertain the

instant writ petition.

5. Learned counsel for the respondents have

placed reliance on the judgment of the Hon'ble Supreme

Court reported in AIRONLINE 2020 SC 202 (LAXMIBAI

v. COLLECTOR, NANDED) wherein at para 43, it is held

as under:

"43. Section 10A of the 1959 Act and Section 9A of the 1961 Act read with Articles 243-K and 243-O, are pari materia with Article 324 of the Constitution of India. In view of the judgments referred, we find that the remedy of an aggrieved person accepting or rejecting nomination of a candidate is by way of an election petition in view of the bar created under Section 15A of the 1959 Act. The said Act is a complete code providing machinery for redressal to the grievances pertaining to election as contained in Section 15 of the 1959 Act. The High Court though exercises extraordinary jurisdiction under Article 226 of the Constitution of India but such jurisdiction is discretionary in nature and may not be exercised in view of the fact that an efficacious alternative remedy is available and more so exercise restraint in terms of Article 243-0 of the Constitution of India. Once alternate machinery is provided by the statute, the recourse to writ jurisdiction is not an appropriate remedy. It is a prudent discretion to be exercised by the High Court not to interfere in the election matters, especially after declaration of the results of the elections but relegate the

parties to the remedy contemplated by the statue. In view of the above, the writ petition should not have been entrained by the High Court. However, the order of the High Court that the appellant has not furnished the election expenses incurred on the date of election does not warrant any interference."

6. Based on the said judgment, learned counsel

for the respondents pray for dismissal of the writ petition.

7. Learned counsel for the petitioner contends, it

is true that the Court should not entertain a case pertaining

to election, if it is in the nature of protracting or stalling

the election proceedings, but, the High Court can always

interfere in exercise of its powers under Article 226 of the

Constitution of India when the petition does not protract or

stall the proceedings, but only intends to secure justice to

the parties concerned and is in furtherance of conducting

election in democratic manner and states that the instant

case is one such example and this Court has the

jurisdiction to try the same.

8. The petitioner places reliance upon the

judgment of the Hon'ble Supreme Court reported in

AIR 2000 SC 2979 (Election Commission of India

through Secretary v. Ashok Kumar and others),

wherein at paragraphs 32, 33 and 34, it is held as under:

"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 courts 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 22nd September, 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 59A 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 stationwise 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 59A 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 Courts 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 ipsi 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 59A 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."

9. The petitioner also relies upon the judgment of

this Court reported in ILR 2018 KAR 3671 (Jayamuthu

vs. State Election Commission for Co-operation,

Karnataka State Co-operative Housing Federation

and Others), wherein at para 21 it is observed as under:

"21. As already noted, the remedies under Article 226 of the Constitution cannot be permitted to be utilized as a substitute for ordinary remedies when an efficacious, ordinary remedy exists, unless there is any exceptional reason for dealing with the matter under the writ jurisdiction. At the same time, we may hasten to add that the doctrine of alternative remedy is available only where that remedy fully covers the challenge to the election as in the instant case. It is noted, the doctrine of alternative remedy is only a rule of discretion and not a rule of law, but the High Court can always issue a writ, despite the availability of an alternative remedy, when there is a patent want of jurisdiction or, when there has been denial of natural justice before the Court of summary jurisdiction or, whether when the vires of an Act is impugned or, when there is an allegation that the fundamental right has been infringed. Further, if the alternative remedy is not adequate, then the High Court would not refuse to entertain a writ petition. In the aforesaid contingencies, even if the

alternative remedy is available, a writ petition would be entertained."

10. Based on the aforementioned judgments, the

petitioner contends that respondent No.3 committed an

error in rejecting the nomination papers and no harm

would be caused to the respondents if a writ of mandamus

is issued directing them to permit the petitioner to contest

the election.

11. Article 243ZA of the Constitution of India reads

as under:

            "243ZA.            Elections            to         the
      Municipalities.-(1)           The         superintendence,
      direction   and    control of       the    preparation    of
      electoral   rolls for,    and      the conduct of, all

elections to the Municipalities shall be vested in the State Election Commission referred to in article 243K.

(2) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Municipalities."

12. Article 243ZG of the Constitution of India reads

as under:

"243ZG. Bar to interference by courts in electoral matters.-Notwithstanding anything in this Constitution, --

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 243ZA shall not be called in question in any court;

(b) no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State."

Thus, the power of the superintendence, direction

and control of the preparation of electoral rolls for, and the

conduct of Municipalities elections is vested in the State

Election Commission. The words superintendence, direction

and control have a wide connotation so as to include

therein such powers which though not specifically

provided, but are necessary to be exercised for effectively

accomplishing the task of holding the elections to their

completion. Further, there is a bar to interference by

courts in election matters and the remedy to an aggrieved

person is by way of filing an election petition.

13. The High Courts in India are superior courts of

record. They have original and appellate jurisdiction. They

have inherent and supplementary powers. Unless

expressly or impliedly barred and subject to the appellate

or discretionary jurisdiction of Supreme Court, the High

Courts have unlimited jurisdiction including the jurisdiction

to determine their own powers. The jurisdiction of courts is

carved out of sovereign power of the State. People of free

India are the sovereign and the exercise of judicial power

is articulated in the provisions of the Constitution to be

exercised by courts under the Constitution and the laws

thereunder. It cannot be confined to the provisions of

statutes. Access to court which is an important right

vested in every citizen implies the existence of the power

of the Court to render justice according to law. Where

Statute is silent and judicial intervention is required,

Courts strive to redress grievances according to what is

perceived to be principles of justice, equity and good

conscience. The power of judicial review is a basic

structure of Constitution. However, having regard to the

important functions which the legislatures have to perform

in democratic countries, it has always been recognized to

be a matter of first importance that elections should be

concluded as early as possible according to time schedule

and all controversial matters and all disputes arising out of

elections should be postponed till after the elections are

over, so that the election proceedings may not be unduly

retarded or protracted. In conformity with this principle,

the scheme of the election law in this country is that no

significance should be attached to anything which does not

affect the election; and if any irregularities are committed

while it is in progress and they belong to the category or

class which under the law by which elections are governed,

would have the effect of vitiating the election and enable

the person affected to call it in question, they should be

brought up before a special tribunal by means of an

election petition and not be made the subject of a dispute

before any court while the election is in progress.

14. Thus, courts should not entertain proceedings

which has the effect of interfering with the progress of

election. However, they can always entertain the

proceedings which accelerate the completion of the

election and acts in furtherance of an election. When

entertaining any lis, the above propositions will have to be

kept in mind.

15. Section 21 of the Karnataka Municipalities Act

reads as under:

"21. Election petitions.-- (1) No election of a councillor shall be called in question except by an election petition presented to the Election Tribunal within fifteen days from the date of the declaration of the result of the election.

(2) An election petition calling in question any such election may be presented on one or more of the grounds specified in section 23,--

(a) by any candidate at such election, or

(b) by any voter of the division concerned.

(3) A petitioner shall join as respondents to his petition all the candidates at the election.

(4) An election petition,--

(a) shall contain a concise statement of the material facts on which the petitioner relies;

           (b)     shall with sufficient particulars, set
                  forth the ground or grounds on
                  which    the     election   is    called   in
                  question; and

           (c)    shall be signed by the petitioner and
                  verified in the manner laid down in
                  the Code of Civil Procedure, 1908,

for the verification of pleadings."

16. Section 23 of the Karnataka Municipalities Act

reads as under:

"23. Grounds for declaring elections to be void.--(1) Subject to the provisions of sub-section (2), if the Election Tribunal is of opinion,--

     (a)          that on the date of his election a
                  returned              candidate        was       not

qualified, or was disqualified, to be chosen as a councillor under this Act, or

(b) that any corrupt practice has been committed by a returned candidate or his agent or by any other person with the consent of a returned candidate or his agent, or

(c) that any nomination paper 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 of any nomination, or

(ii) by any corrupt practice committed in the interests of the returned candidate by an agent

or by any other person acting with the consent of such candidate or agent, or

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

(iv) by the non-compliance with the provisions of this Act or of any rules or orders made thereunder, the Election Tribunal shall declare the election of the returned candidate to be void.

(2) If in the opinion of the Election Tribunal, any agent of a returned candidate has been guilty of any corrupt practice, but the Tribunal is satisfied,--

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

      (b)      that        the        candidate       took     all
               reasonable         means        for    preventing



                  the     commission          of     corrupt
                  practices      at the election; and


            (c)   that   in    all   other   respects    the
                  election was free from any corrupt
                  practice     on    the     part   of   the
                  candidate or any of his agents,


                  then the Tribunal may decide that
                  the    election     of     the    returned
                  candidate is not void."

17. Keeping in view the principle that election

process should not be protracted or stalled, the above

provisions are incorporated.

18. The issue that requires to be answered in the

instant case is, whether this Court can go into the rejection

of the nomination paper of the petitioner herein by

respondent No.3 and does it amount to protracting or

stalling the election process?

19. The allegation in the instant case is that the

nomination paper of the petitioner has been wrongly

rejected on the grounds that the signatures of working

President of State unit of INC on Form-A does not tally

with Form-B submitted by the petitioner and that a

reasonable opportunity was not afforded to the petitioner

to justify the same.

20. This Court based on the documents produced

cannot come to a conclusion whether the signatures of the

working President of State unit of INC on Form-A and

Form-B tallies or not. Similarly, based only on the

pleadings it cannot be concluded whether a reasonable

opportunity was provided by respondent No.3 to the

petitioner or not. These are matters that can be decided

upon only in an election petition.

21. The calendar of events regarding the election

has already been announced and the date for scrutiny of

the nominations and also for withdrawal of the nomination

papers is already over. The election is scheduled to be

held on 27.12.2021. Any interference at this stage by way

of remanding the matter back to respondent No.3 to

consider the same afresh by affording an opportunity to

the petitioner also amounts to protracting the proceedings.

22. Further, as per Section 23(1)(c) of the

Karnataka Municipalities Act, one of the grounds for

elections to be void is that any nomination paper has been

improperly rejected. If the petitioner is aggrieved by the

action of respondent No.3, she has an alternative

efficacious remedy under the provisions of Section

23(1)(c) of the Karnataka Municipalities Act read with

Section 21 of the said Act.

For the aforementioned reasons, the writ petition is

hereby dismissed. No order as to costs.

SD/-

JUDGE

LG