Priya Krishna vs The Returning Officer
2021 Latest Caselaw 140 Kant

                             1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 5TH DAY OF JANUARY, 2021

                        PRESENT

       THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA

                          AND

           THE HON'BLE MRS.JUSTICE M.G.UMA

             W.A.No. 3829/2019 (GM - RES)

BETWEEN:

Priya Krishna,
Son of Sri. M.Krishnappa,
Aged about 35 years,
Residing at No.2937/38E,
'GOVARDHANA PRIYA'
Service Road, Vijayanagar,
Bengaluru - 560 040.                      ... Appellant

(By Sri. Dhananjay K.V., Advocate)

AND:

1.     The Returning Officer
       For the Govindaraja Nagar,
       Assembly Constituency 166,
       Palike soudha, 14th Cross,
       Chandra Layout 1st Stage,
       Bengaluru - 560 072.
       (Now working as Deputy Secretary; BDA)
       C/o. The Office of Chief Electoral
       Officer Karnataka At Nircachana Nilaya
       Seshadri Road, Bengaluru - 560 001.
2.     The Chief Electoral Officer Karnataka,
                              2


     At Nirvachana Nilaya,
     Seshadri Road, Bengaluru - 560 001.

3.   The Election Commission of India,
     At Nirvachan Sadan,
     Ashoka Road, New Delhi - 110 001.

                                         ... Respondents

(By Sri. Manu Kulkarni, Advocate for R-1 to R-3 )

     This appeal is filed under Section 4 of the
Karnataka High Court Act, 1961 praying to set aside the
Order and Judgment passed on 19-September-2019 by a
learned Single Judge of this Hon'ble Court in Writ Petition
No.27019 of 2018 [GM - RES], for the reasons
aforestated and etc.

     This appeal coming on for Preliminary Hearing this
day, NAGARATHNA, J., delivered the following:

                       JUDGMENT

We have heard Sri Dhananjay K.V., learned counsel

for appellant and Sri Manu Kulkarni, learned counsel

appearing for respondents.

2. The appellant, who is a defeated candidate in the

Govindrajanagar Legislative Constituency of Bengaluru,

has assailed the legality and correctness of order dated

19.09.2019 passed in W.P.No.27019/2018.

3. Briefly stated, the facts are that election to the

Govindrajanagar Legislative Constituency along with all

other constituencies in the State of Karnataka were

conducted on 12.05.2018. The counting of votes was on

15.05.2018. During the process of counting of votes,

the appellant herein filed an application before the

Returning Officer under Rule 56D of the Conduct of

Election Rules, 1961 (hereinafter referred to as 'the

Rules', for the sake brevity) at about 1.09 p.m.,

requesting for tally of Voter Verifiable Paper Audit Trail

(VVPAT) slips with the votes cast through Electronic

Voting Machine. The Returning Officer considered the

said application and by order passed on the same day,

rejected the said application. A copy of the said order is

produced at Annexure-A. Being aggrieved, the appellant

preferred the writ petition.

4. The learned Single Judge, on consideration of rival

contentions, has dismissed the writ petition. Hence, this

appeal.

5. Learned counsel for the appellant, at the outset,

submitted that the appellant is a defeated candidate and

he has not preferred any election petition assailing the

result of the election held to the Govindrajanagara

Legislative constituency. That the appellant is not really

concerned with the outcome of the election held in the

particular constituency. The appellant is, however,

interested in the purity of the electoral process and

therefore, made the application under Rule 56D of the

Rules. He contended that the learned Single Judge

ought not to have dismissed the writ petition, thereby

sustaining the order of the Returning Officer. Hence, the

appeal calls for interference.

6. Learned counsel for the appellant also drew our

attention to the written arguments filed before the

learned Single Judge which is produced at pages 153 to

164 and particularly to paragraph 18 of the said written

arguments. He also contended that the election petition

could not have been maintained with regard to the

rejection of the application filed by the appellant herein.

The only remedy the appellant had was to file a writ

petition before this Court under Article 226 of the

Constitution of India. He contended that in the

circumstances, the impugned order ought to be set aside

and the writ petition would have to be allowed on merits.

7. Per contra, learned counsel appearing for

respondents sought to submit that writ petition itself was

not maintainable. However, learned Single Judge has

dismissed the writ petition. That there is no merit in this

writ appeal and therefore, the appeal may be dismissed

in limine.

8. We have considered the submissions of the learned

counsel for respective parties and perused the impugned

order.

9. We find that the appeal would not call for any

interference for the reason that the writ petitioner, who

is a defeated candidate, has not chosen to file any

election petition to challenge the outcome of the

election. In fact, learned counsel for the appellant also

very fairly submitted that the appellant did not file any

election petition for the reason that he did not want to

assail the outcome of the poll. That apart, it is also

noted that the period of limitation for filing of election

petition expired 45 days immediately after the result of

the poll was announced.

10. However, the contention of the learned counsel for

the appellant is that the application filed by the appellant

under Rule 56D of the Rules ought to have been allowed

and there ought to have been a tally with regard to the

data in the VVPAT slips with the Electronic Voting

Machine and that the learned Single Judge was not right

in dismissing the writ petition by sustaining the order of

the Returning Officer.

11. We can only answer the said contention by

reiterating the fact that when the appellant is not

interested in assailing the outcome of the election, we

find that filing of the writ petition and thereafter this

appeal is purely an academic exercise. In the

circumstances, we find it wholly unnecessary to answer

the contention of learned counsel for the appellant

insofar as correctness or otherwise of the impugned

order is concerned.

12. Although learned counsel for respondents

contended that the writ petition was not maintainable,

we do not wish to go into that controversy as the learned

Single Judge has entertained the writ petition and has

passed the impugned order. It may be that the

challenge to the impugned order could not have been

taken up by way of an election petition. That is not

relevant, but what is relevant in the instant case is the

appellant has accepted the outcome of the poll and has

not challenged his defeat before the appropriate forum.

Therefore, we think that filing of the writ petition

assailing the order of the Returning Officer was also an

academic exercise.

13. We have perused the order of the learned single

Judge impugned in this appeal as well as Rule 56D of the

Rules. On a reading of the said Rule, it is noted that the

application filed has to be decided subject to general or

special guidelines, as may be issued by the Central

Government.

14. The Election Commission of India has issued certain

guidelines. On the basis of the said guidelines issued by

the Election Commission of India, the order of the

Returning Officer has been scrutinized by the learned

Single Judge in paragraph No.9. Learned single Judge

has held that the Returning Officer had passed the order

in accordance with the statutory mandate contained in

Rule 63 of the Rules as well as the guidelines framed by

the Election Commission of India. Therefore, the said

order was not perverse nor did it suffer from the vice of

non application of mind.

15. Learned single Judge has also noted that quashing

of the order of the Returning Officer and remanding the

matter for fresh decision would be an exercise in futility.

We agree with the reasoning of the learned single Judge

and we reiterate that in the absence of the petitioner

having any interest in the outcome of the poll, the

challenge to the order of the Returning Officer was

purely and academic exercise.

Hence, the writ appeal is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

PKS