Karnataka High Court
Shrimath S/O Chandrashya Umarani vs Ashok S/O Malleshappa Boragi @ ... on 25 January, 2022
Bench: E.S.Indiresh
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE E.S.INDIRESH
WRIT PETITION No.200246/2022 (LB-ELE)
BETWEEN:
SHRIMATH S/O CHANDRASHYA UMARANI
AGE: 43 YEARS, OCC: AGRICULTURE
R/O SANK, TQ. CHADACHAN,
DIST. VIJAYAPURA.
... PETITIONER
(BY SRI D. P. AMBEKAR, ADVOCATE)
AND:
1. ASHOK S/O MALLESHAPPA BORAGI @ BORGI
AGE: 23 YEARS, OCC: AGRICULTURE,
R/O SANK, TQ. CHADCHAN,
DIST. VIJAYAPURA-586205.
2. DEPUTY COMMISSIONER
VIJAYAPURA-586101.
3. RETURNING OFFICER FOR
ELECTION OF GRAM PANCHAYAT
HATALLI, TQ. CHADACHAN
DIST. VIJAYAPURA-586205
4. MAHADEV S/O NAGAPPA MASHALA
AGE: MAJOR, R/O SANK
TQ. CHADACHAN,
DIST. VIJAYAPURA-586205.
2
5. SADASHIV S/O CHANDAPPA BAGALI
AGE: MAJOR, R/O. SANK,
TQ. CHADACHAN,
DIST. VIJAYAPURA-586205.
6. HUCHAPPA S/O BALABHEEMA BANGARASTAL
AGE: MAJOR, R/O SANK
TQ. CHADACHAN,
DIST. VIJAYAPURA-586205.
7. PUSHPAVATI W/O AMBANNA BOLAKOTAGI
AGE: MAJOR, R/O SANK
TQ. CHADACHAN,
DIST. VIJAYAPURA-586205.
8. MAHADEVI W/O CHANNABASAPPA DONI
AGE: MAJOR, R/O SANK
TQ. CHADACHAN,
DIST. VIJAYAPURA-586205.
9. MAHADEVI W/O MAHADEVA BANDI
AGE: MAJOR, R/O SANK
TQ. CHADACHAN,
DIST. VIJAYAPURA-586205.
10. SHOBHA W/O REVAPPA DONI
AGE: MAJOR, R/O SANK
TQ. CHADACHAN
DIST. VIJAYAPURA-586205.
11. KAVITHA W/O BHUTALI KONKANI
AGE: MAJOR, R/O SANK
TQ. CHADACHAN,
DIST. VIJAYAPURA-586205.
12. RANIBAYI W/O BHEEMASHANKAR KOLI
AGE: MAJOR, R/O SANK,
TQ. CHADACHAN,
DIST. VIJAYAPURA-586205.
... RESPONDENTS
(BY SRI SHIVAKUMAR R. TENGLI, AGA FOR R2 AND R3)
3
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A
WRIT, ORDER OR DIRECTION IN THE NATURE OF
CERTIORARI QUASHING ANNEXURE-G VIZ, JUDGMENT
AND ORDER DATED 11.01.2022 PASSED BY THE SENIOR
CIVIL JUDGE AND JMFC, INDI, ALLOWING ELECTION
PETITION NO.01/2021.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
Though this writ petition is listed for Preliminary
Hearing, by the consent of the parties, it is taken up for
final disposal.
2. Heard the learned counsel appearing for the
parties.
3. In this writ petition, the petitioner has assailed
the order dated 11.01.2022 in Election Petition No.1/2021
by the Senior Civil Judge and JMFC, Indi. Petitioner is the
respondent No.1 in the Election proceedings.
4. Brief facts for the adjudication of this writ
petition are that the respondent No.1 herein has filed the
Election Petition under Section 15 of the Karnataka Gram
Swaraj and Panchayat Raj Act, 1993, seeking relief against
the respondent No.3 therein to recount the votes casted in
the election of Ward No.7 of Hathalli Gram Panchayat. The
said election was held pursuant to the notification by the
Government on 27.12.2020. The petitioner has contested
in the election, the counting of votes was held on
30.12.2020 and thereafter, it was announced by the
Returning Officer that the petitioner herein secured 562
votes and the petitioner in the Election Petition secured
557 votes and as such, Returning Officer declared the
petitioner herein as winning candidate. Being aggrieved by
the same, respondent No.1 herein has filed the Election
Petition before the trial Court.
5. After service of notice, respondents therein
entered appearance and filed detailed statement of
objections denying the averments made in the Election
Petition. On the basis of the pleadings on record, the trial
Court framed issues for its consideration. In order to prove
the petition, the respondent No.1 herein was examined as
P.W.1 and he has produced 6 documents and the same
were marked as Ex.P1 to P6. Petitioner herein was
examined as DW.1 and one Baba Saheb was examined as
D.W.2. No documents were produced by the respondents
therein. The trial Court after considering the material on
record by its order dated 11.01.2022, allowed the Election
Petition and as such, directed the respondents No.3 therein
to recount the votes in Ward No.7 of Hathalli Gram
Panchayat within a period of 15 days from the date of
receipt of the order. Being aggrieved by the order dated
11.01.2022, the petitioner herein who is the respondent
No.1 in Election Petition has presented this writ petition.
6. I have heard Sri D.P.Ambekar, learned counsel
for the petitioner.
7. Sri D.P.Ambekar, learned counsel for the
petitioner drew the attention of the Court to the number of
votes secured by the candidates of Hathalli Gram
Panchayat of Ward No.7 and argued that the petitioner has
been rightly declared in the election by the Returning
Officer as secured highest votes and as such, the same
cannot be redo on the ground of irregularity. He further
submitted that it is the onus on the part of the respondent
No.1 to prove before the Court that there are allegations
against the Returning Officer, however, the same is not
urged by the respondent No.1 in the Election proceedings
and therefore, the impugned order passed by the trial
Court is non-est which requires interference in this writ
petition.
8. Learned Additional Government Advocate
argued that there is no impediment for recounting of the
votes by the respondent-authorities and to implement the
order passed by the trial Court and therefore, he sought
for dismissal of the writ petition.
9. In the backdrop of the arguments advanced by
the learned counsel appearing for the parties, I have
carefully considered the votes secured by each of the 11
contestants as set out at Annexure-E4 which indicates that
there is a short margin between the returned candidate
and the unsuccessful candidate. I have also considered the
finding recorded by the trial Court, particularly at
paragraph-11 of the judgment, wherein one Mahadev
Mashyal had secured 577 votes. However, the respondent
No.1 therein/ petitioner herein has secured 562 votes.
10. Taking into consideration the facts stated
above, I am of the view that the impugned order passed
by the trial Court to direct the respondent No.3 therein to
recount the votes of Ward No.7 of Hathalli Gram Panchayat
is just and proper to discern the truth, whether the
winning candidate in the election process has secured
legitimate votes or not. In that view of the matter,
exercise of power under Section 226 of the Constitution of
India is very limited, unless the petitioner has pointed any
perversity in the order passed by the trial Court on re-
appreciating the material on record in the present writ
petition, I am of the view that the trial Court has rightly
ordered for recount of the Ward No.7 Hathalli Gram
Panchayat and therefore, the writ petition deserved to be
dismissed in limine.
Ordered accordingly.
Sd/-
JUDGE
VNR
