Karnataka High Court
Sri Laxman S/O Devendrappa ... vs The Assistant Commissioner on 14 March, 2022
Bench: Suraj Govindaraj
WP No.100421/2022
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ
WRIT PETITION No.100421/2022 (LB-ELE)
BETWEEN
1. SRI. LAXMAN S/O. DEVENDRAPPA CHANDAVARI,
AGED 60 YEARS, OCC: AGRICULTURIST AND
COUNCILLOR - WARD NO.29,
R/AT RAJIV GANDHI NAGAR,
GADAG TALUK AND DISTRICT - 582101.
2. SMT. SHAKUNTALA W/O. HOLABASAPPA AKKI,
AGED 42 YEARS, OCC: HOUSEHOLD AND
COUNCILLOR - WARD NO.4,
R/O. S.M. KRISHNA NAGAR,
GADAG TALUK, DIST. GADAG - 582101.
3. SRI. KRISHNA SON OF PARASAPPA PARAPUR,
AGED 53 YEARS, OCC: AGRICULTURIST AND
COUNCILLOR - WARD NO.16,
R/O. D.C.MILL ROAD,
THALAGERI ONI, GADAG, DIST. GADAG - 582101.
4. SRI. BARKAT ALI S/O. ABDUL WAHAB MULLA,
AGED 51 YEARS, OCC: BUSINESS AND
COUNCILLOR - WARD NO.23,
R/O. DAKANI GALLI, GADAG,
DIST. GADAG - 582101
5. SRI. RAVIKUMAR S/O. KOTRAPPA KAMATAR,
AGED 40 YEARS, OCC: AGRICULTURIST AND
COUNCILLOR-WARD NO.22,
R/O. KAMATAR PLOT, VAKKALAGERI ONI,
GADAG, DIST. GADAG - 582101.
6. SRI. JAINULABDIN S/O. ABDUL REHAMANSAB NAMAZI,
AGED 53 YEARS, OCC: BUSINESS AND
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COUNCILLOR-WARD NO.18,
R/O. JAVALAGALLI AZAD ROAD,
GADAG, DIST. GADAG-582101.
7. SRI. CHANDRASHEKAR GOUDA,
S/O. PARVATHA GOUDA KARISOMANAGOUDAR,
AGED 50 YEARS, OCC: BUSINESS AND
COUNCILLOR - WARD NO.9,
R/O. VAKKALAGERI ONI, BETAGERI-GADAG,
DIST. GADAG - 582101.
... PETITIONERS
(BY SHRI. UDAY HOLLA, SENIOR COUNSEL FOR
SRI. K.L.PATIL AND SRI. S.S.BETURMATH, ADVOCATES)
AND
1. THE ASSISTANT COMMISSIONER,
GADAG SUB-DIVISION,
GADAG - 582101,
AND THE ELECTION OFFICER,
GADAG - BETAGERI CITY MUNICIPAL COUNCIL,
PRESIDENT AND VICE PRESIDENT ELECTION.
2. THE STATE OF KARNATAKA,
REPRESENTED BY SECRETARY,
DEPARTMENT OF URBAN DEVELOPMENT
DEPARTMENT AND MUNICIPALITIES,
VIKASA SOUDHA, BENGALURU-560001.
3. THE DEPUTY COMMISSIONER,
GADAG DISTRICT,
GADAG - 582101.
4. THE COMMISSIONER,
GADAG-BETAGERI CITY MUNICIPAL COUNCIL,
GADAG - 582101.
5. SMT. USHA W/O. MAHESH DASAR,
AGED ABOUT 26 YEARS,
OCC: HOUSE WIFE AND COUNCILLOR-WARD NO.35,
R/O. HUDCO COLONY,
GADAG - 582101.
6. SMT. SUNANDA W/O. PRAKASH BAKALE,
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AGED 40 YEARS, OCC: HOUSEHOLD WORK
AND COUNCILLOR - WARD NO.32,
R/O. DASAR ONI, GADAG - 582101,
TALUK AND DIST: GADAG.
7. SRI. MADUSA S/O. TEJUSA MERAWADE,
AGED ABOUT 54 YEARS,
R/O. # 6027/1A, HOSAPETE CHEK,
AYYAPPAN ROAD,
BETAGERI GADAG - 582102.
8. SMT. LAKSHMI W/O. SHANKAR KAKI,
AGED ABOUT 40 YEARS,
RESIDING AT KHDC NEKAR COLONY,
BETAGERI-GADAG - 582102.
9. SRI. RAGHAVENDRA S/O. BASAVARAJ YALAVATTI,
AGED ABOUT 34 YEARS,
RESIDING AT SHIVAJI NAGAR,
BLOCK NO.1, BETAGERI-GADAG-582102.
10. SHWETHA D/O. RAVI DANDIN,
AGED ABOUT 22 YEARS,
RESIDING AGT VIDYA NAGAR,
GADAG-582101.
11. SMT. DINDOOR VIJAYALAKSHMI W/O. SHASHIDHAR,
AGED ABOUT 40 YEARS,
RESIDING AT KARIYAMMAKAL BADAVANE,
GADAG-582101.
12. SRI. GULAPPA S/O. HANUMANTHAPPA MUSHIGERI,
AGED ABOUT 43 YEARS,
RESIDING AT VIVEKANANDA NAGAR,
GADAG - 582101.
13. SRI. PRAKASH S/O. RACHAPPA ANGADI,
AGED ABOUT 48 YEARS,
RESIDING AT NEAR KARANT SCAN CENTRE,
GADAG - 582101.
14. SRI. CHANDRASHEKHAR S/O. BASAVARAJ TADASAD,
AGED ABOUT 46 YEARS,
RESIDING AT OPP. KATTIBASAVANNA TEMPLE,
BASAVESHWAR NAGAR, GADAG - 582101.
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15. SRI. MAHANTESH S/O. KUBERAPPA NELAVADI,
AGED ABOUT 45 YEARS, RESIDING AT
KHANTHOT, NEAR VEERNARAYAN TEMPLE,
GADAG-582101.
16. SRI. NAGARAJ S/O. HULIGEPPA TALWAR,
AGED ABOUT 46 YEARS,
RRESIDING AT PLOT NO.42, YALAMALLI LAYOUT,
KALASAPUR ROAD, GADAG - 582101.
17. SRI. MANVI VINAYAK S/O. SHIVAPPA,
AGED ABOUT 59 YEARS,
RESIDING AT : NEAR VEERNARAYAN
TEMPLE ROAD, GADAG - 582101.
18. SMT. HULIGEMMA W/O. GANGASA HABIBA,
AGED ABOUT 53 YEARS,
RESIDING AT KUMBAR ONI, GADAG-582101.
19. SRI. SIDDALINGAPPA (ANIL) S/O.
MALLIKARJUN ABBIGERI,
AGED ABOUT 46 YEARS,
RESIDING AT OLD SARAF BAZAR,
GADAG-582101.
20. SMT. BAKALESHAILA W/O. NARASINGASA,
AGED ABOUT 44 YEARS,
RESIDING AT NEAR JOD MARUTI TEMPLE,
SRI. TRIKUTESHWAR TEMPLE ROAD,
KILLA STREET, GADAG-582101.
21. SMT. ANITHA W/O. VIJAYKUMAR GADDI,
AGED ABOUT 50 YEARS,
RESIDING AT PLOT NO.6702/B8,
ABHISHEK BUILDING, NEAR STADIUM,
GADAG - 582101.
22. SMT. VIDYAVATI W/O. AMARNATH GADAGI,
AGED ABOUT 37 YEARS,
RESIDING AGT HOUSE NO.45/159,
ADARSH NAGAR, GADAG - 582103.
23. SHIVAKUMAR CHANNABASAPPA UDASI,
AGED ABOUT 45 YEARS,
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RESIDING AT GOULI GALLI, HANAGAL,
DIST. HAVERI - 581104
... RESPONDENTS
(SRI. PRABHULING K. NAVADAGI, ADVOCATE GENERAL
FOR R1 TO R3;
SRI. HARSH DESAI, ADVOCATE FOR R4;
SRI. PRAVEEN P. TARIKAR, ADVOCATE FOR R5 AND R6;
SRI. VIKRAM HUILGOL, SENIOR COUNSEL FOR IMPLEADING R7 TO
R23)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSITUTION OF INDIA, PRAYING TO (A) ISSUE A WRIT
OF CERTIORARI OR ANY OTHER WRIT, ORDER OR DIRECTION
QUASHING THE ELECTION PROCEEDINGS OF THE ELECTION TO
THE POST OF THE PRESIDENT AND THE VICE PRESIDENT HELD BY
THE ELECTION OFFICER, THE 1ST RESPONDENT HEREIN, ON
24.01.2022, VIDE ANNEXURE-C.
THIS PETITION COMING ON FOR FINAL HEARING, HAVING
BEEN HEARD AND RESERVED FOR ORDERS ON 03.03.2022, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The Petitioners are before this Court, seeking the
following reliefs:
(a) Issue a writ of certiorari or any other writ, order
or direction quashing the election proceedings
of the election to the post of the President and
the Vice President held by the Election Officer,
the 1st Respondent herein, on 24.01.2022 vide
Annexure-C.
(b) Declare that the election held to the post of the
President and the Vice President to Gadag-
Betageri City Municipal Council is vitiated by
fraud and manipulation and consequently
declare that the entire election process is
vitiated.
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(c) Direct the Respondents to hold fresh election to
the post of President and the Vice President of
the Gadag-Betageri City Municipal Council; and
(d) Grant such other and further reliefs as are just,
including the cost of this petition.
2. The Petitioners are stated to be the members of the
Gadag-Betageri City Municipal Council (hereinafter
for brevity, referred to as 'Municipal Council').
They having been elected in the elections held to
the City Municipal Council on 27.12.2021. The
Municipal Council consists of 35 elected members
and two ex-officio members, being the Member of
the Legislative Assembly and the Member of
Parliament of the Haveri Parliamentary
constituency, in all amounting to 37 members.
3. Upon the election of the Municipal Council being
completed, there being a requirement for the
election of President and the Vice-President of the
said Municipal Council, hence, in terms of the
Karnataka Municipalities President and Vice-
President Elections Rules, 1965, (hereinafter for
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brevity referred to as "the Rules") the said process
of election was commenced. The Assistant
Commissioner, Gadag Sub-Division, Gadag, the
Respondent No.1 herein, was appointed as the
Election Officer to conduct the said elections in
terms of the said Rules.
4. In furtherance of the same, Respondent No.1
issued a notice in Form No.1 of the said Rules,
notifying the elections for the post of President and
Vice-President to be held on 24.01.2022 at 2.00
p.m in the meeting hall of the Municipal Council,
the nomination papers thereof to be filed between
10.00 a.m. to 12.00 noon of 24.01.2022 and the
scrutiny thereof to be completed by 2.00 p.m.
5. Petitioner No.1 though in the cause title has been
shown only as Laxman, his complete name being
Laxman Devendrappa Chandavari and Respondent
No.5, whose name in the cause title is shown only
as Smt. Usha, but her full name is Dasar Usha
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Mahesh were the contestants for the post of
President and filed their nomination papers for the
position of President.
6. Respondent No.6, whose name is shown as Smt.
Sunanda in the cause title, whose full name is Smt.
Sunanda Prakash Bakale and Smt. Shakuntala, as
shown in cause title as Petitioner No.2, whose full
name is Shakuntla Hollebasappa Akki, filed
nomination for the Vice-President.
7. It is stated that all the 37 members of the Municipal
Council assembled in the Meeting Hall at 2.00 p.m.,
and the Election Officer informed the members
present about the modality of voting by stating that
he would call out the names of the members at
which time, the members would have to signify
their preference and or vote by show of hands and
after that sign the election proceedings confirming
the vote in respect of a particular candidate.
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8. It is stated that a list of all the names of 37
members were prepared in quadruplicate (i) Two
(2) for the purpose of voting for the President, one
in the name of the Petitioner No.1 and the other in
the name of Respondent No.5 (ii) Two (2) for the
post of Vice-President, one in the name of
Petitioner No.2 and the other in the name of
Respondent No.6.
9. Respondent No.1 called out the names of the
candidates and instructed the members who were
present there to show their hands to fulfil the
requirement of voting by show of hands, thus
voting in favour of each of the candidates, and the
aforesaid sheets were signed corresponding to their
name signifying their vote.
10. The grievance of the Petitioners is that upon the
voting process being completed, it was found that
19 persons had voted for Petitioner No.1 whereas
18 persons had voted for Respondent No.5 and
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therefore, it was Petitioner No.1 who had to be
declared as the successful candidate. However,
instead of doing so , the Respondent No.1 has
fraudulently manipulated the said documents and
interchanged the same to make it appear as if 19
votes had been cast in favour of the Respondent
No.5 and only 18 votes had been cast in favour of
the Petitioner No.1. There is no dispute regarding
the election of Petitioner No.2 and Respondent
No.6.
11. Sri. Udaya Holla, learned Senior Counsel appearing
for the Petitioners submitted that;
11.1. There is a fraud which the Respondent No.1-
Election Officer has committed, inasmuch as
the sheets recording the voting in favour of
the Petitioner No.1 has been interchanged
with that of Respondent No.5, thereby
vitiating the entire process of elections.
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11.2. This act would require this Court to exercise
jurisdiction under Article 226 of the
Constitution of India to interfere with the
election process and annul the election and
direct fresh elections to be held for the post of
President of the Municipal Council.
11.3. He submits that there is a clear and
categorical admission made by the
Respondents in their statement of objections,
inasmuch as the Respondent No.1-Assistant
Commissioner at paragraph No.10 has clearly
accepted it. The said paragraph is hereunder
extracted for easy reference:
"10. It is submitted that the
Respondent No.1 had prepared proceeding
sheets in the name of Respondent No.5 and
Petitioner No.1 for the post of President and
similarly proceedings sheets were also
prepared in respect of election to the Vice
President is concerned. As the Respondent
No.5 who had filed her nomination at the first
instance her name was called, the voters were
requested to cast their votes by showing
(raising) their hands. After counting the
hands, it was 19 voters who casted their votes
in favour of Respondent No.5. After that name
of the Petitioner No.1 was called and the same
WP No.100421/2022
voting process was followed and also after
counting the hands, it was 18 voters who
casted their votes in favour of Petitioner No.1.
After taking of signatures of voters by the
clerical staff, the same was submitted before
the Respondent No.1. And thereafter, by
observing those sheets, Respondent No.1
came to know that, due to oversight, the
proceeding sheets pertaining to Respondent
No.5 and Petitioner No.1 were interchanged
and the same was not intentional. So, the
sheets were exchanged in between
Respondent No.5 and Petitioner No.1. But the
voters had casted their votes to their
candidate when the name of particular
candidate was called out. The said exchange
of sheets occurred due to over sight and it was
not intentional. Thereafter, the Returning
Officer after due notice to all the voters
present at the hall, made necessary changes
and affixed the said proceeding sheets in the
original register and put his signature. The
Respondent No.1 has conducted the
proceedings in accordance with law and
nothing has been manipulated as alleged by
the Petitioners."
11.4. He also relies on paragraph No.3 of the
application for vacating stay order. The said
paragraph is reproduced hereunder for easy
reference:
"3. It is humbly submitted that, in
the proceeding sheet, wherein the signature of
Members were taken, there is only clerical
mistake pointed out during the election and
the correction was carried out by intimating to
all the voters present during the proceeding.
They have agreed for the said correction, so
after taking permission from all the Councillors
and voters correction was carried out. The 1st
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Respondent has put his signature for the said
correction and nothing has been manipulated
as alleged by the Petitioners."
11.5. In the light of the statements made in these
two paragraphs, he submitted that the
admission which has been made in the
statement of defence in the vacate stay
application is sufficient enough to allow the
petition since the interchange of the voting
sheets has been categorically admitted by the
Respondents. He also relies on paragraph
Nos.27 & 28 of the statement of objections
filed by Respondent Nos.5 and 6, which is
reproduced hereunder for easy reference:
"27. That what is alleged by the
Petitioners to be a manipulation of the
results sheet was presumably only done
because Petitioner No.1's name was
inadvertently shown on page no.5 instead
of Respondent No.5's name. Similarly, at
page no.7, Respondent No.5's name was
reflected instead of the Petitioner No.1's
name. Therefore, presumably, to carry out
this correction, Respondent No.1 has made
necessary changes to the results sheet at
Annexure 'C'. It is denied that there is any
manipulation of the results as alleged by
the Petitioners.
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28. That there is no manipulation
of the results sheet as alleged. There
appears to be minor a correction made
thereto, as a consequence of a possible
inadvertent error due to which instead of
Respondent No.5's name, Petitioner No.1's
name was stated at page no.5. Likewise,
instead of Petitioner No.1's name,
Respondent No.5' name was probably
stated at page no.7. Therefore, there is no
manipulation of the results sheet at
Annexure 'C' as alleged."
11.6. Referring to the same, he submits that the
fact of correction and or interchange has been
admitted, though it is now sought to be
downplayed as a minor correction and an
inadvertent error. He submits that this is done
purely to favour Respondent No.5 at the cost
of Petitioner No.1. This kind of manipulation
goes to the root of the electoral process
requiring this court to exercise its
extraordinary powers under Article 226 of the
Constitution of India.
11.7. He relies upon the decision of the Apex Court
in the case of Harnek Singh Vs. Charanjit
Singh and others reported in (2005) 8 SCC
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383, more particularly paragraph No.16
thereof to contend that despite Article 243-O
of the Constitution, this Court would have the
jurisdiction as seen in that case, wherein
despite the existence of Article 243-O, the
Apex Court has held that a Constitutional
Court would have the power to interfere in the
Electoral matters.
11.8. He submits that Article 243-O is in
parimateria with Article 243-ZG, inasmuch as
all the words are identical, except regarding
the body to which the election relates to,
namely, Article 243-O, which relates to
election to Panchayats where Article 243-ZG,
relates to elections to Municipalities.
11.9. Irrespective of elections being to the
Panchayats or the Municipalities, 243-O and
243-ZG being identical to each other, the
decision in Harnek Singh's case would apply.
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This Court would have the power to excise
judicial review of the actions on the part of
the Electoral Officers and the Petitioners
ought not to be relegated to an election
petition.
11.10. He also relies on the decision of the Madras
High Court in the case of All India Anna
Dravida Munnetra Kazhagam Vs. The
State Election Commissioner, reported in
2007 SCC Online Mad 49, more particularly
thereof, which are reproduced hereunder for
easy reference:
"2. On the day i.e ., 13.10.06, when
polling for election of 155 Ward
Commissioners of Chennai Municipal
Corporation were in progress, a special
mention was made on behalf of one of the
Petitioner, "All India Anna Dravida Munnetra
kazhagam' (hereinafter referred to as
AIADMK) to the Honourable the Chief Justice
for immediate hearing of the Public Interest
Litigation onthe ground that the ruling
partymen, i.e ., personnel of the 5th
Respondent, Dravida Munnetra Kazhagam'
(hereinafter referred to as DMK), are
committing serious irregularities, engaged
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goondas, caused large scale violence and
after attacking candidates, partymen and
others, captured most of the polling booths
in all 155wards. On an urgent mention, on
13.10.06 itself, the case was taken up and
Respondents were served with notice and on
their appearance the case was heard in
detail at the stage of admission for its final
disposal.
185. On carefully going through the
orders pronounced by the learned Judges
and keeping in view the submissions made
by the counsels who are appearing for the
writ Petitioners or the Respondents, it is
apparent that by and large the following
main questions are required to be
considered:
Whether the Election Commission had the
jurisdiction to direct re-polling, if so the
scope and ambit of such jurisdiction?
Whether in view of the provisions
contained in Article 243-ZG of the
Constitution of India, the High Court has any
jurisdiction to entertain and decide any
petition under Article 226?
Whether in view of availability of the
remedy of filing Election Petition under the
statute before the Election Tribunal, the High
Court can decide such matters under Article
226 of the Constitution?
Whether the High Court can exercise any
such jurisdiction when disputed questions of
fact arise for determination?
Whether the elected candidates were
necessary parties?
Whether re-election should be directed to
be held in all or any of the wards of Chennai
Municipal Corporation?
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242. Keeping in view the lofty ideals of
free and fair election, the Election
Commission could not have been found fault
with if it could have come to a conclusion
that re-election was required in any or all of
the wards. He was not expected to seek for
evidence beyond all reasonable doubt, rather
a preponderance of probability or even
reasonable suspicion regarding the fairness
of the poll could have justified taking
adequate measures by directing re-polling.
In such circumstances, he could or rather
should have "erred" in order to uphold the
fairness of the election process rather than
acquiesce in continuing such tainted election
no matter if some of the candidates were not
actually guilty of direct booth capturing. It
was the duty of the Election Commissioner to
show to the rest of the country that the
value and principle of free and fair poll was
above everything else. If the "minions" of
the election mechanism remain quiet, the
"super authority", namely, the Election
Commission, should have risen to the
occasion. Instead of adopting an attitude of
obduracy, it would have been better to act in
order to avoid the possibility of the criticism
that when Rome was burning Nero was
fiddiing.
243. It has been recognised in
Kesavananda Bharati's case, 1973 (4) SCC
225 by many of the Judges of the Supreme
Court forming the majority that democracy is
a basic right and free and fair poll has been
considered to be an essential part of the
democracy. Election is no longer considered
as a mere statutory right, but it has been
accorded the elevated status of a
constitutional right and the actual casting of
vote has been considered as a fundamental
right of the freedom of expression. The
Election Commission being the constitutional
repository of the collective confidence
WP No.100421/2022
reposed by the State representing the entire
citizens, is required to ensure free and fair
poll so that the basic right is not affected.
The primary question in such public interest
litigation is therefore whether free and fair
poll could be ensured.
253. In view of the above, my
conclusions are as follows:
(1) The Election Commission has
jurisdiction and authority, nay the duty to
direct re-polling in any or all the wards, if he
comes to the conclusion on the basis of
materials on record that there is no free and
fair election and there has been large scale
of booth capturing. Such action can be taken
by the Election Commission not only on the
basis of the reports submitted by various
election officers, but also on other materials
including the newspaper reports.
(2) Any decision taken by the Election
Commission is subject to the judicial review
by the High Court, of course within the
known parameters of such jurisdiction.
However, the High Court is required to be
very circumspect in such matters and
interfere only in rarest of rare cases. Where
the High Court comes to the conclusion that
free and fair election has not been held and
there is a mockery of democracy and the
Election Commission has failed in its duty to
protect democracy by ensuring free and fair
election, the High Court can in order to
protect the concept of democracy, interfere
in such matters, even after the election
process is over, notwithstanding the fact that
alternative remedy may be available and
notwithstanding the fact that some disputed
questions are required to be decided. This
again would obviously depend upon the facts
and circumstances of each case and such
jurisdiction is to be exercised in rarest of
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rare cases where the monstrosity of the
situation so compels.
(3) Since the Election Commission
while dealing with such matters can depend
upon newspaper reports, the High Court,
while dealing with such matters arising from
the decision of the Election Commission, can
similarly place reliance upon the newspaper
reports in conjunction with other materials
on record.
(4) In the peculiar circumstances of
this case, which have already been
discussed, the contention that successful
parties should have been impleaded in the
Writ Petitions cannot be accepted.
(5) The submission made by the
learned counsels for the Petitioners that
fresh election should be directed to be held
in respect of other wards not included in the
order of F.M. Ibrahim Kalifulla, J. cannot be
accepted and the election to 100 wards
specified in Notification dated 29.1.2007 can
be held on the scheduled date.
(6) In view of the conclusion regarding
Ward No. 53, there need not be fresh
election in respect of such Ward No. 53 and
the certificate of election issued to him by
the Election Commission need not be
recalled."
11.11. Relying on the same, he submits that, the
High Court would have the power of judicial
review over an Electoral process.
11.12. He also relies on the decision of the Bombay
High Court, in the case of Baburao S/o.
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Kalu Koli Vs. State of Maharashtra and
others, reported in 2007 SCC Online Bom
909 more particularly paragraph Nos.23, 28,
29 and 30, which are reproduced hereunder
for easy reference:
"23. The provisions of Article 243-0 of the
Constitution read thus:
"243-O. 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 243K,
shall not be called in question in any Court;
(b) no election to any Panchayat 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".
28. In the result, the writ petition is
allowed. We hold that the elections held on 30-
8- 2005 to the Village Gram Panchayat Jalod,
Taluka Amalner, District Jalgaon are vitiated
and are declared to be null and void. The
election results of the said elections declared on
30-8-2005 by the Returning Officer are quashed
and set aside.
29. We direct the Respondent No. 2 -
Collector Jalgaon to hold fresh elections of the
Village Gram Panchayat Jalod, Taluka Amalner,
for the remainder period, on the basis of the
final notification issued on 15-7-2005 under
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Rule 5(1) of the Rules, 1966 strictly in
accordance with law.
30. We further direct the Respondent -
Collector Jalgaon to initiate enquiry against the
employees who were responsible for
interpolation and manipulation of the
Notification issued by the Collector, in case not
earlier initiated. In case the departmental
enquiries were already initiated the same be
completed within 3 months from today. In case
the staff members involved in the interpolation
of the record are found to be guilty then such
employees shall be dealt with severely under
the law. A report in this regard shall be
presented by the Collector to the State Election
Commission.
11.13. Based on all the above, he submits that, the
writ petition ought to be allowed.
12. Sri Prabhuling Navadagi, learned Advocate General
appearing for Respondent Nos.1 to 3 would submit
that,
12.1. Insofar as the facts leading up to the elections
there is no dispute, however, the process and
procedure of election which happened, the
interpretation given by Sri. Udaya Holla,
learned Senior Counsel is not correct.
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12.2. Sub-Rule 3 of Rule 8 of the Rules require an
election to be conducted by a show of hands,
what is of importance is the show of hands,
the subsequent portion of the said Rule only
relates to the Ministerial Act of recording the
votes in the elections which were held. The
members have shown their hands in favour of
Respondent No.5, but the recordal of the
same was wrong, which is only a ministerial
act, and was corrected, this correction not
being material and or not affecting the
election process as such, this Court ought not
to exercise its power under Article 226 of
Constitution of India and as such this court
ought to relegate the Petitioners to the
alternative and efficacious remedy of an
election petition in terms of Rule 15 of the
said Rules.
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12.3. He submits that the determinative test for the
process of election is the show of hands and
not the recordal in the Register. Even if it is
assumed that there is any interchange of
these documents, these being disputed
questions of fact, this Court ought not to
excise jurisdiction but relegate the parties to
an election petition where detailed trial would
have to be conducted and as such, he submits
that the petition ought to be dismissed.
12.4. Learned Advocate General also refers to the
sheets recording the votes cast in favour of
Respondent No.5 at page 28 and 29 of the
petition, more particularly at Sl.No.37, at
page 29 and submits that, if the submission of
Sri. Udaya Holla, learned Senior Counsel is
accepted and these sheets were to be
considered to record the votes cast in favour
of Petitioner No.1 then, it would amount to
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Petitioner No.1 having voted for Respondent
No.5.
12.5. By referring to pages 30 and 31, more
particularly Sl. No.31 at page 31, relating to
the recordal of the votes cast in favour of
Petitioner No.1, he submits that if the
submission of Sri. Udaya Holla, learned Senior
Counsel is accepted and these sheets were to
be regarded as recording the votes in favour
of Respondent No.5; it would amount to
Respondent No.5 having voted in favour of
Petitioner NO.1.
12.6. He, therefore, submits that, such a situation
cannot even be contemplated when there are
only two candidates contesting in the election
and the fact that such a paradoxical situation
would arise would indicate the mistake which
has been committed by Respondent No.1 is a
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genuine mistake and the said mistake was
immediately rectified.
12.7. He further submits that, the elections to the
Municipal Council happen on party lines, and
all the members who have voted for each of
the candidates have done so on party lines if
the submission of Sri. Udaya Holla, learned
Senior Counsel is accepted, then it would
amount to persons from one party voting for
the other party enblock which would probably
result in their disqualification, which is not
what has happened.
13. Sri. Vikram Huilgol, learned Senior Counsel
appearing for Respondent Nos.5 and 6 would
submit that;
13.1. Rule 15 of the said Rules have been
formulated in terms of Section 42 (3) of the
Karnataka Municipalities Act, 1964. The said
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exercise of 42 (3) is reproduced hereunder for
easy reference:
"(3) The election of the President or the
Vice-President and the filling up of vacancies
in the said offices and the determination of
disputes relating to such election shall be in
accordance with such rules as may be
prescribed:
Provided that the authority to determine
such election disputes shall be such judicial
officer as may be prescribed."
13.2. These Rules having statutory force, the voting
which has taken place by show of hands has
culminated in the election of Respondent
No.5, which election can only be challenged
under Rule 15 of the said Rules and not by
way of a writ petition. On these grounds, he
submits that the petition is liable to be
dismissed.
14. Sri. K.G.Raghavan, learned Senior Counsel who
appears for Respondent No.7 to 23 who are stated
to be the members of the Municipal Council who
had voted in favour of Respondent No.5, who were
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impleaded subsequent to the filing of the writ
petition on an impleading application filed by them,
would submit that;
14.1. The impleaded Respondents now being
Respondents on record, have a right to be
heard on all matters in the above petition;
they being impleaded as a party-Respondent
have equal right of audience in the present
proceedings. They having voted for
Respondent No.5 have a vested interest in
seeing to it that the said election and result
thereof are safeguarded and not annulled on
the basis of the above petition, therefore, a
voter in an election has a vested right to
participate in any proceedings which have
been filed in a Court of law and be heard in
the said proceedings.
14.2. The only remedy to the Petitioners, is
available under Rule 15, which remedy can be
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exercised in terms of Rule 17 only if election
results are materially affected by considering
the grounds which have been raised in
election petition, which ought to only relate to
improper reception or refusal of a vote or
non-compliance of the provision of the Act or
any of the Rules.
14.3. There is no improper reception or refusal of
the vote, what had happened was only a
wrong recording of the name of the
contestant on the top of the sheet, this
recordal was rectified by interchanging the
sheets which was accepted by all the
members present and voting at the said
election and as such, the result of the election
having been ascertained by show of hands did
not materially get affected by a wrong
recording in the Register.
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14.4. He relies upon the decision of the Apex Court
in the case of State of Goa Vs. Fouziya
Imtiaz Shaikh reported in (2021) 8 SCC
401, more particularly paragraph No.51, 52,
68, 69 thereof, which are reproduced
hereunder for easy reference:
51. In Kurapati Maria Das v. Ambedkar Seva
Samajan28, the validity of a caste certificate came
up for determination in a writ petition that was filed
which challenged municipal elections made to a
reserved constituency. In this context, this Court
held: (SCC pp. 394-95, paras 18-22)
"18. Regarding the bar of jurisdiction under
Article 243-ZG(b), the learned counsel Shri Gagan
Gupta submitted that the decision relied upon by
the High Court as K. Venkatachalam v. A.
Swamickan was applicable and, therefore, it could
not be said that there was a bar to the
entertainment of the writ petition under Article
226. The learned counsel supported the factual
findings recorded by the High Court to the effect
that the appellant was a Christian and, therefore,
could not claim the status of a person belonging to
the Scheduled Caste, more particularly, caste
"Mala".
19. In the first place, it would be better to
consider as to whether the bar under Article 243-
ZG(b) is an absolute bar. The article reads thus:
'243-ZG. (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.'
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At least from the language of clause (b), it is
clear that the bar is absolute. Normally, where such
a bar is expressed in a negative language as is the
case here, it has to be held that the tone of clause
(b) is mandatory and the bar created therein is
absolute.
20. This Court in its recent decisions has
held the bar to be absolute. First such decision is
Jaspal Singh Arora v. State of M.P. In this case. the
election of the Petitioner as the President of the
Municipal Council was challenged by a writ petition
under Article 226, which was allowed setting aside
the election of the Petitioner. In para 3 of this
judgment, the Court observed: (SCC p. 595)
'3. ... it is clear that the election could not be
called in question except by an election petition as
provided under that Act. The bar to interference by
courts in electoral matters contained in Article 243-
ZG of the Constitution was apparently overlooked
by the High Court in allowing the writ petition.
Apart from the bar under Article 243-ZG, on settled
principles interference under Article 226 of the
Constitution for the purpose of setting aside
election to a municipality was not called for
because of the statutory provision for election
petition ....'
21. The second such decision is Gurdeep
Singh Dhillon v. Satpal. In that decision, after
quoting Article 243-ZG(b) the Court observed that
the shortcut of filing the writ petition and invoking
constitutional jurisdiction of the High Court under
Articles 226/227 was not permissible and the only
remedy available to challenge the election was by
raising the election dispute under the local statute.
22. There is no dispute that Rule 1 of the
Andhra Pradesh Municipalities (Decision on Election
Disputes) Rules, 1967, specifically provides for
challenging the election of Councillor or Chairman.
It was tried to be feebly argued that this was a
petition for quo warranto and not only for
challenging the election of the appellant herein.
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This contention is clearly incorrect. When we see
the writ petition filed before the High Court, it
clearly suggests that what is challenged is the
election. In fact the Prayer clauses (b) and (c) are
very clear to suggest that it is the election of the
appellant which is in challenge."
52. In W.B. State Election Commission v.
Communist Party of India (Marxist), the West
Bengal State Commission issued certain directions
extending the last date for submitting nominations
by one day, after which the said order was recalled
on the next day. A learned Single Judge of the High
Court delivered a judgment in which the order
cancelling the extension was quashed and the
Commission was directed to issue a fresh
notification extending the date for filing
nomination. In obedience to this order, the. SEC
issued a notification extending the date for filing of
nominations on 21-4-2018. Writ petitions were
then filed which were dismissed34 by a learned
Single Judge, who declined to interfere with the
election process. Ultimately. after fresh writ
petitions were moved before a Single Judge of the
Calcutta High Court, the Single Judge declined35 to
give any further directions, more particularly, that
the SEC be made to accept nominations already
filed in electronic forms. The Division Bench, while
disposing of the appeal, directed the SEC to accept
nominations in electronic forms by those
candidates who had submitted them on or before
3.00 p.m. on 23-4-2018. After setting out the
relevant provisions of the Panchayat Elections Act,
this Court held: (W.B. State Election Commission
case, SCC pp. 155-56 & 158, paras 28-29 & 33)
"28. The Panchayat Elections Act is a
complete code in regard to the conduct of the poll
and for the resolution of disputes concerning the
validity of the election. Article 243-K entrusts the
superintendence, direction and control over the
conduct of all elections to the panchayats in the
State Election Commission. Clause (b) of Article
243-O stipulates thus:
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'243-O. Bar to interference by courts in
electoral matters .Notwithstanding anything in this
Constitution -
(b) no election to any Panchayat 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.'
29. There is merit in the submission that the
discipline which is mandated by the provisions of
the Constitution and enforced by the enabling State
law on the subject must be maintained. Any
dispute in regard to the validity of the election has
to be espoused by adopting a remedy which is
known to law, namely, through an election petition.
It is at the trial of an election petition that factual
disputes can be resolved on the basis of evidence.
This principle has been consistently adhered lo in
decisions of this Court. In Boddula Krishnaiah, a
three-Judge Bench adverted to the decisions of the
Constitution Bench in N.P. Ponnuswami v.
Returning Officer, Namakkal Constituency and in
Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman.
After referring to Ponnuswami5, it was observed:
(Boddula Krishnaiah case27, SCC pp. 419-20, para
8)
'8. In N.P. Ponnuswami v. Returning Officer,
Namakkal Constituency a Constitution Bench of this
Court had held that having regard to the important
functions which the legislatures have to perform in
democratic countries, it has always been
recognised 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 the
principle, the scheme of the election law 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
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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.'
The binding principle must be followed.
33. For these reasons. we are of the view
that challenges in regard to the validity of the
elections to the uncontested seats in the
panchayats. Panchayat Samitis and Zila Parishads
must also be pursued in election petitions under
Section 79(1) of the Panchayat Elections Act. We
leave it open to any person aggrieved to raise a
dispute in the form of an election petition in
accordance with the provisions contained in the
Panchayat Elections Act. In exercise of the power
conferred by Article 142, we direct that the period
of 30 days for filing election petitions in respect of
the uncontested seats shall commence from the
date of the publication of the results in the Official
Gazette."
68. A conspectus of the aforesaid
judgments in the context of municipal elections
would yield the following results:
68.1. Under Article 243-ZG(b), no election to
any municipality can be called in question except
by an election petition presented to a Tribunal as is
provided by or under any law made by the
legislature of a State. This would mean that from
the date of notification of the election till the date
of the declaration of result a judicial hands-off is
mandated by the non obstante clause contained in
Article 243-ZG debarring the writ court under
Articles 226 and 227 from interfering once the
election process has begun until it is over. The
constitutional bar operates only during this period.
It is therefore a matter of discretion exercisable by
a writ court as to whether an interference is called
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for when the electoral process is "imminent" i.e the
notification for elections is yet to be announced.
68.2. If, however, the assistance of a writ
court is required in subserving the progress of the
election and facilitating its completion, the writ
court may issue orders provided that the election
process, once begun, cannot be postponed or
protracted in any manner.
68.3. The non obstante clause contained in
Article 243-ZG does not operate as a bar after the
Election Tribunal decides an election dispute before
it. Thus, the jurisdiction of the High Courts under
Articles 226 and 227 and that of the Supreme
Court under Article 136 of the Constitution of India
is not affected as the non obstante clause in Article
243-ZG operates only during the process of
election.
68.4. Under Article 243-ZA(1), the SEC is in
overall charge of the superintendence, direction
and control of the preparation of electoral rolls, and
the conduct of all municipal elections. If there is a
constitutional or statutory infraction by any
authority including the State Government either
before or during the election process, the SEC by
virtue of its power under Article 243-ZA(1) can set
right such infraction. For this purpose, it can direct
the State Government or other authority to follow
the Constitution or legislative enactment or direct
such authority to correct an order which infracts
the constitutional or statutory mandate. For this
purpose, it can also approach a writ court to issue
necessary directions in this behalf. It is entirely up
to the SEC to set the election process in motion or,
in cases where a constitutional or statutory
provision is not followed or infracted, to postpone
the election process until such illegal action is
remedied. This the SEC will do taking into account
the constitutional mandate of holding elections
before the term of a municipality or Municipal
Council is over. In extraordinary cases, the SEC
may conduct elections after such term is over, only
for good reason.
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68.5. Judicial review of a State Election
Commission's order is available on grounds of
review of administrative orders. Here again, the
writ court must adopt a hands-off policy while the
election process is on and interfere either before
the process commences or after such process is
completed unless interfering with such order
subserves and facilitates the progress of the
election.
68.6. Article 243-ZA(2) makes it clear that
the law made by the legislature of a State, making
provision with respect to matters relating to or in
connection with elections to municipalities, is
subject to the provisions of the Constitution, and in
particular Article 243-T, which deals with
reservation of seats.
68.7. The bar contained in Article 243-ZG(a)
mandates that there be a judicial hands-off of the
writ court or any court in questioning the validity
any law relating to delimitation of constituency or
allotment of seats to such constituency made or
purporting to be made under Article 243-ZA. This is
by virtue of the non obstante clause contained in
Article 243-ZG. The statutory provisions dealing
with delimitation and allotment of seats cannot
therefore be questioned in any court. However,
orders made under such statutory provisions can
be questioned in courts provided the statute
concerned does not give such orders the status of a
statutory provision.
68.8. Any challenge to orders relating to
delimitation or allotment of seats including
preparation of electoral rolls, not being part of the
election process as delineated above, can also be
challenged in the manner provided by the statutory
provisions dealing with delimitation of
constituencies and allotment of seats to such
constituencies.
68.9. The constitutional bar of Article 243-
ZG(a) applies only to courts and not the State
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Election Commission, which is to supervise, direct
and control preparation of electoral rolls and
conduct elections to municipalities.
68.10. The result of this position is that it is
the duty of the SEC to countermand illegal orders
made by any authority including the State
Government which delimit constituencies or allot
seats to such constituencies, as is provided in
Proposition 68.4 above. This may be done by the
SEC either before or during the electoral process,
bearing in mind its constitutional duty as delineated
in the said proposition.
69. Applying the law to the facts of the
present case, the first important thing to be noted
is that the constitutional bar contained in Article
243-ZG(a) does not apply to the facts of this case.
As has correctly been pointed out by Shri Laud, the
judgment in Anugrah Narain Singh v. State of U.P.
would apply as the Goa Municipalities Act does not
contain any provision akin to Section 10(2) or
Section 10(4) of the Delimitation Commission Act,
1962 that was highlighted in Meghraj case4,
providing that orders of the Delimitation
Commission have the force of law. This being the
case, the first and foremost roadblock that has
been put forward by the learned Solicitor General
has been cleared. No fault can be found with the
Division Bench1 of the High Court in ignoring any
constitutional bar in arriving at the conclusion that
the 4-2-2021 order is illegal and ultra vires the
provisions of Article 243-T of the Constitution of
India read with Sections 9 and 10 of the Goa
Municipalities Act. On merits, it is important to note
that Shri Tushar Mehta, learned Solicitor General,
did not advance any argument that the reservation
of seats for women and OBCs was in accord with
the provisions of the Constitution and the Goa
Municipalities Act. Indeed, even otherwise, we do
not find fault with the Division Bench judgment1 in
its conclusion that a fraction has to be worked
upwards whatever that fraction be, given the
mandatory language of Article 243-T of the
Constitution which provides for reservation for
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women which shall not be less than one-third. Also,
the findings of the High Court on OBC reservation
not complying with the mandate of Section
9(2)(bb) in that in several councils it was below
27% cannot be faulted. The same goes for
observations made on the 1 ST seat in Sanguem
and non-application of the principle of rotation."
14.5. By relying on the above, he submits that, a
judicial hands-off policy is mandated by the
non-obstante clause in terms of Article 243-
ZG, debarring the writ Court exercising
jurisdiction under Articles 226 & 227 of the
Constitution of India from interfering once the
election process is started.
14.6. Therefore, this Court also ought to have a
hands-off approach and not interfere in the
election results declared and relegate the
parties to the remedy of the election petition
in terms of Rule 15 of Rules.
14.7. Though in the compilation of citations
produced by Respondent Nos.7 to 23, there
are six other decisions that have been
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produced. He submits that, all those decisions
have been dealt with in Fauzia Imtiyaz Shaik's
case and as such he would not be referring to
or relying upon the said decisions in particular
or individually.
15. Sri. Harsha Desai appearing for Respondent No.4
submits that, he is appearing as a counsel for the
Municipal Council and has no role to play in the
matter and leaves the matter to be decided on the
basis of the submissions made by the counsel for
the Petitioners and the Respondents.
16. Sri. Udaya Holla, learned Senior Counsel in his re-
joinder submitted that;
16.1. Refers to and relies upon the decision of the
Hon'ble Apex Court in Election Commission
of India Vs. Ashok Kumar and others,
reported in (2000) 8 SCC 216, more
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particularly paragraph No.20 thereof, which is
reproduced hereunder:
"20. Vide para 29 in Mohinder Singh
Gill case the Constitution Bench noticed two types
of decisions and two types of challenges: the first
relating to proceedings which interfere with the
progress of the election and the second which
accelerate the completion of the election and acts
in furtherance of an election. A reading of Mohinder
Singh Gill case points out that there may be a few
controversies which may not attract the wrath of
Article 329(b). To wit:
(i) power vested in a functionary
like the Election Commission is a trust and in view
of the same having been vested in high functionary
can be expected to be discharged reasonably, with
objectivity and independence and in accordance
with law. The possibility however cannot be ruled
out where the repository of power may act in
breach of law or arbitrarily or mala fide.
(ii) A dispute raised may not
amount to calling in question an election if it
subserves the progress of the election and
facilitates the completion of the election. The
Election Commission may pass an order which far
from accomplishing and completing the process of
election may thwart the course of the election and
such a step may be wholly unwarranted by the
Constitution and wholly unsustainable under the
law.
In Mohinder Singh Gill case this Court
gives an example (vide para 34). Say after the
President notifies the nation on the holding of
elections under Section 15 and the Commissioner
publishes the calendar for the poll under Section 30
if the latter orders returning officers to accept only
one nomination or only those which come from one
party as distinguished from other parties or
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independents, which order would have the effect of
preventing an election and not promoting it, the
Court's intervention in such a case will facilitate the
flow and not stop the election stream.
16.2. By referring to the said paragraphs, he
submits that, this Court could always exercise
jurisdiction wherever the repository of power
acts in breach of the law or acts in an
arbitrary or malafide manner.
16.3. In the present case Respondent No.1 ought to
have held a re-election instead of changing
the relevant sheets, which is an improper
exercise of power by the repository of power
requiring this Court to interfere in the matter.
16.4. He also refers and relied on the decision of
the Apex Court in the case of Ch. Subbarao
Vs. Member, Election Tribunal,
Hyderabad and others, reported in AIR
1964 SC 1027, more particularly paragraph
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Nos.12 thereof, which is reproduced
hereunder for easy reference:
"12. Though the learned Counsel for the
appellant made several submissions, we propose to
deal with only one, as the same is sufficient for the
disposal of this appeal. This was that in the
circumstances of the case there had been a
substantial compliance with the requirements of S.
81(3). Before, however, dealing with it, it will be
convenient to refer to some of the submissions
made to us by the learned Solicitor-General
appearing for the contesting Respondents. He
submitted to us certain propositions which however
we consider really unexceptionable. He said that an
election petition was not to be equated to an
election at law or in equity, but that as the rights
were purely the creature of statute, if the statute
rendered any particular requirement mandatory,
the courts possessed and could exercise no
dispensing power to waive non-compliance. We
consider these propositions are sound and it is in
the light of these basic positions that we shall
proceed to consider whether the omission to add
the words "true copy" in the copies which were
admittedly exact copies of the petition, constituted
a non-compliance with S. 81 (3) as to render the
petition liable to be rejected under S. 90(3) of the
Act."
16.5. Relying on the same, he submits that
whenever there is a non-compliance of a
particular requirement, a Constitutional Court
can always exercise the power of judicial
review and there is no requirement to
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relegate a party to an election petition in
terms of Rule 15.
16.6. By referring to Rule 17 of the Rules, and the
Oxford Concise Dictionary, he submits that
the word reception used in the said Rule is
receiving of a vote and would include the
recordal of the vote, Sub-Rule 3 of Rule 8
uses the word shall, which makes both the
show of hands and the recordal thereof
mandatory, both of them cannot be divorced
from each other, the recordal of the vote also
is a receipt of the vote and this having
affected the results of the election, this court
ought to intervene in the matter.
16.7. This, he submits, would also have to be done
to give effect to the choice of the elected
members of the Municipal Council, the
admission being very clear that there is a
interchange of the voting sheets. He refers to
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and relied upon a Judgment of the Apex Court
in the case of Bharati Reddy Vs. State of
Karnataka and others, reported in 2018
(12) SCC 61, more particularly paragraph
No.11 to 15 thereof which are reproduced
hereunder for easy reference:
"11. We do not find any merit in this
contention. We are of the view that a
voter in a particular panchayat cannot be
rendered remediless if he is aggrieved by
the election of the Adhyaksha of the
Panchayat. In Kesavananda Bharati v.
State of Kerala, a thirteen-Judge Bench of
this Court held that Article 368 of the
Constitution does not enable Parliament to
alter the basic structure or framework of
the Constitution. The basic structure of the
Constitution could not be altered by any
constitutional amendment and it was held
in unambiguous terms that one of the
basic features is the existence of
constitutional system in judicial review.
This view was followed by a Constitution
Bench in Minerva Mills Ltd. v. Union of
India. In L. Chandra Kumar v. Union of
India, a seven-Judge Bench of this Court
has held that jurisdiction conferred upon
the High Courts under Articles 226/227 of
the Constitution and upon the Supreme
Court under Article 32 of the Constitution
is a part of the inviolable basic structure of
our Constitution. While this jurisdiction
cannot be ousted, other courts and
tribunals may perform a supplementary
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role in discharging the powers conferred
by Articles 226/227 and Article 32 of the
Constitution of India. It has been held as
under:
"78. ... We, therefore, hold
that the power of judicial review
over legislative action vested in the
High Courts under Article 226 and
in [the Supreme] Court under
Article 32 of the Constitution is an
integral and essential feature of
the Constitution, constituting part
of its basic structure. Ordinarily,
therefore, the power of High Courts
and the Supreme Court to test the
constitutional validity of legislations
can never be ousted or excluded."
12. In I.R. Coelho v. State of T.N., a
Bench of nine Judges has again held that
power of judicial review is the part of the
basic structure of the Constitution. The
power to amend cannot be equated with
the power to frame the Constitution.
13. It is thus clear that power of
judicial review under Articles 226/227 of
the Constitution is an essential feature of
the Constitution which can neither be
tinkered with nor eroded. Even the
Constitution cannot be amended to erode
the basic structure of the Constitution.
Therefore, it cannot be said that the writ
petition filed by Respondents 6 to 9 under
Article 226 of the Constitution is not
maintainable. However, it is left to the
discretion of the court exercising the
power under Articles 226/227 to entertain
the writ petition.
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14. In Charan Lal Sahu relied upon by
the learned Senior Counsel, the question
for consideration was maintainability of an
election petition presented by a candidate
challenging the election to the Office of the
President of India who has not been duly
nominated under Section 14-A of the
Presidential and Vice-Presidential Elections
Act, 1952. This decision has no application
to the facts of the present case.
15. As noticed above, though
Respondents 6 to 9 are the voters are not
the members of the Zila Panchayat. They
are aggrieved by the election of the
appellant to the office of the Adhyaksha.
They cannot challenge the election of the
appellant to the office of Adhyaksha by
filing an election petition as they are not
the members of the Zila Panchayat in
question. In our view, a voter of the Zila
Panchayat who is not a member cannot be
denied an opportunity to challenge the
election to the office of Adhyaksha under
Articles 226/227 of the Constitution.
Therefore, we hold that the writ petition
filed by Respondents 6 to 9 before the
High Court is maintainable."
16.8. By relying on the above he submits that the
power of judicial review is an inviolable basic
structure of the constitution and this Court
even in election proceedings can exercise
such inviolable power of judicial review to
render justice in a particular matter.
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16.9. As regards Fauzia Imtiyaz Shaik's case, he
refers to paragraph No.68.3, 68.4 and 68.5
(which are reproduced herein above) to
contend that the embargo, if any, is only
during the actual election process and the said
embargo does not apply either prior to the
election or after the election is held.
17. Since there were some new citations which were
relied upon by Sri. Udaya Holla, learned Senior
Counsel during the course of his arguments, an
opportunity was provided to the counsels appearing
for the Respondents to give their rebuttal.
18. Sri. K.G.Raghavan, learned Senior Counsel once
again reiterated the decision of the Apex Court in
Fauzia Imtiyaz Shaik's case and submitted that
there is an embargo on this Court to exercise its
jurisdiction.
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19. The learned Advocate General in his rebuttal
submitted that, the Petitioners would have to stand
on their own legs and they cannot rely upon the
statements made in the objections and/or on the
application to vacate the stay, even the said
admission is no admission at all, inasmuch as it
does not comply with the requirement of Section 17
of the Indian Evidence Act. Be that as it may, he
submits that these issues would have to be looked
into only in the election petition and not in the
present writ petition. He again reiterates that the
election was held by show of hands and the election
results were properly announced requiring this
Court not to interfere in the matter.
20. Based on the above submissions, in my considered
opinion the following points would arise for
determination;
(i) Whether a voter at election can be
permitted to address arguments on
merits of the matter and or their
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presence be restricted only to
support the case of the candidates,
who are parties to these
proceedings?
(ii) Whether there is any embargo on this
Court to exercise powers under
Article 226 of the Constitution of
India in all election matters or could
this Court exercise powers in certain
situation, if so what?
(iii) Can this Court if at all were to
exercise the power of judicial review
under Article 226, look into the
factual aspects insofar as they are
not controverted and or they are
admitted that is to say there being no
enquiry required to be made in that
regard?
(iv) Whether in the facts and
circumstances of this case, there is
requirement for this Court to
intercede in this matter?
(v) What order?
21. I answer the above points as under;
22. Answer to Point No.1: Whether a voter at
election can be permitted to address arguments on
merits of the matter and or their presence be
restricted only to support the case of the
candidates, who are parties to these proceedings?
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22.1. Initially, when the petition was filed the
Respondents arraigned were the government
entities and the persons who were declared to
be successful. Subsequently an impleading
application came to be filed on 16.02.2022 by
17 councillors of Gadag-Betageri Municipal
Council, seeking to be impleaded in the above
proceedings. All the affidavits are verbatim
and identical. Each of them have stated that,
they had voted for Respondent No.5 and
Respondent No.6 for President and Vice
President, respectively and wanted to place on
record the said affidavit since it is the
contention of the Petitioners that these
impleading applicants have voted for the
Petitioner. They have contended that, in the
event of outcome of the result in favour of the
Petitioners and against the Respondents, their
rights would be affected and as such they
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wanted to come on record so that their
narrative regarding the case be heard.
22.2. When the matter was taken up for hearing on
21.02.2022, a co-ordinate Bench of this Court
observing that the said impleading applicants
wanted to come on record to place on record
that they have voted for the 5th Respondent
and not for the first Petitioner and since the
same was not seriously contested by the
Petitioners, the applicants were permitted to
be impleaded as additional Respondents and
were permitted to rely upon the affidavit filed
in support of the application or to file a
separate statement of objections.
22.3. It is pursuant thereto that the matter was
taken up for hearing on 02.03.2022 and
03.03.2022.
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22.4. In the impleading application that had been
filed, the only contention raised by the
impleading applicants was that they had voted
for Respondent No.5 and not for the Petitioner
No.1 and it is this fact that they wanted to
bring on record which is what the co-ordinate
Bench of this Court observed and the
impleading application came to be allowed.
22.5. However, during the course of arguments, Sri.
K.G. Raghavan, learned Senior Counsel
contended that, since they have been
impleaded as party Respondents, they have to
be given equal opportunity of being heard,
even on merits of the matter and that they
could also make their submissions on the
merits of the matter including the law
applicable, procedure followed, etc., and it is
in pursuance of the same, that the aforesaid
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arguments as recorded above were
addressed.
22.6. The election which is the subject matter of
the present petition is as regards the election
of the President and the Vice President of a
Municipal Council, wherein 17 voters have
come on record.
22.7. There are various other elections which are
held as regards the election of the councillor
himself, election of a member of Legislative
Assembly, member of Parliament, etc.,
Though in the present case, there are only 37
voters, out of which 17 voters have come on
record. In the other elections, there could be
thousands if not lakhs of voters who
participate in the electoral process.
22.8. In my considered opinion if the arguments of
Sri. K.G.Raghavan, Senior Counsel is
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accepted, the same would result in a chaotic
situation, where the voters, for example, in an
election for a member of Parliament
numbering lakhs would want to come on
record and address arguments. That would
result in a complete derailing of the judicial
process, since each of those persons might be
required to be heard. It is a different matter
in the present case, all the persons have
come on record through one counsel and one
Senior Counsel is addressing the arguments
on their behalf which may not be the situation
in another case.
22.9. This would be the situation both as regards
the Petitioners and or the Respondents,
inasmuch as there could be thousands or
lakhs of people wanting to come on record to
support the Petitioners and there could be
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thousands or lakhs of people wanting to
support the case of the Respondents.
22.10. This Court cannot lose sight of the enormous
possibilities that may arise if this Court were
to accept the submission made by Sri.
K.G.Raghavan, the learned Senior Counsel.
22.11. In effect, what is under challenge is the
election process. The aggrieved parties have
filed the petition against the governmental
agencies and the successful candidates. In
such a situation, the parties on record can
well prosecute and defend the matter without
requiring the voters to come on record in
order to support either the Petitioners or the
Respondents, who have contested in the
elections.
22.12. In my considered opinion, it is not
contemplated nor permissible for the voters to
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come on record and claim to address
arguments on the merits of the matter, if they
want to assist any of the parties, they can
well do so outside the Court and furnish any
information, documents or citations to the
contesting parties.
22.13. Hence, I answer point No.1 by holding that a
voter of an election cannot be permitted to
address their arguments on the merits of the
matter and or claim to assist this Court.
22.14. Since the Respondents are already brought on
record, they can only to be permitted to assist
the candidates who are parties to the
proceedings not by their submissions but by
providing assistance to the counsels who are
appearing for those parties.
WP No.100421/2022
23. Answer to Point No.2: Whether there is any
embargo on this Court to exercise powers under
Article 226 of the Constitution of India in all
election matters or could this Court exercise powers
in certain situations, if so what?
23.1. Sri. Udaya Holla, learned Senior counsel has
relied on the decision in Harnek Singh's
case more particularly paragraph No.16
thereof to contend that, despite the existence
of Article 243-O, a constitutional Court would
have the power to interfere in electoral
matters. He has also relied on the AIADMK's
case to contend that the election commission
or the electoral Officer as a duty to direct re-
polling at any wards or constituency, if they
were to come to conclusion that there is no
free and fair election, which decision would be
subject to the judicial review of the High Court
and the High Court, if it were to come to the
conclusion that free and fair election has not
been held and or that there is a mockery of
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democracy and or the Election Commission
has failed to protect the democracy, even
after the election process is over and even
though an alternative remedy may be
available, by exercising the power of judicial
review this court could set right any mistakes
committed.
23.2. He also relied on Baburao's case supra to
contend that this Court would have the power
of judicial review and the same is not ousted.
23.3. Though the counsel of the Respondent Nos.5
and 6 has not in particular referred to any
decision, the impleading applicants have
placed certain decisions on record. The same
having been placed on record, this Court is
bound to take cognizance of the applicable
law.
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23.4. In Fauzia Imtiyaz Shaik's case, the Apex
Court after considering almost all the
decisions relating to the elections has at
paragraph No.68 of the said Judgment
encapsulated the criteria that could be taken
into consideration by the High Court in order
to exercise the power of judicial review or not.
23.5. In terms of paragraph No.68.1 thereof, a High
Court is required to follow a judicial hands-off
policy from the date of notification of the
election till the date of declaration of the
result, but has however held that, it is left to
the sound discretion of the Court to exercise
the jurisdiction when the electoral process is
eminent i.e. notification for the election is yet
to be announced.
23.6. The Apex Court has also provided for the
exercise of jurisdiction, where such exercise
would result in subserving the progress of the
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election and facilitating its completion. Thus,
from the above, it is clear that, the
jurisdiction under Article 226 and 227 of the
Constitution of India should preferably not be
exercised from the date of notification till the
results are announced.
23.7. Thus, there is no embargo for the exercise of
the powers under Article 226 of the
Constitution of India, in all election matters as
sought to be contended by the learned
Advocate General for the State and Sri.
Vikram Huilgol for the successful candidates.
23.8. The other contention of the learned Advocate
General is that, there is an alternative remedy
of election petition in terms of Rule 15 of the
aforesaid Rules. It is a different matter to say
that there is an alternative remedy and it is
completely different to say that there is an
embargo on this Court to exercise the
WP No.100421/2022
jurisdiction. Whenever there is an alternative
remedy, this Court can, despite the existence
of such an alternative remedy, exercise the
jurisdiction, if this Court were to come to a
conclusion on the facts and conspectus of the
case that intervention of this Court is
required.
23.9. As held by the Apex Court in Fauzia Imtiyaz
Shaik's case and AIDMK's case, the same is
left to the sound discretion of the Court
exercising powers under Articles 226 & 227 of
the Constitution of India.
23.10. Hence, I answer point No.2 by holding that,
there is no embargo as such on this Court to
exercise power under Article 226 of the
Constitution of India in all election matters,
however a judicial hands-off policy is
applicable from the date of issuance of the
notification of the election to the completion
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of the election. There is no hands-off policy
which would be applicable prior to the
notification or subsequent to the
announcement of the results. In all such
cases, it is left to the sound discretion of the
judge concerned to decide whether he ought
to exercise the powers of judicial review or
not.
24. Answer to Point No.3: Can this Court, if at all
were to exercise the power of judicial review under
Article 226, look into the factual aspects insofar as
they are not controverted and or they are admitted
that is to say there being no enquiry required to be
made in that regard?
24.1. It is trite law that in a proceedings under
Article 226 of the Constitution of India, the
Constitutional Court would not normally
entertain matters relating to disputed
question of facts and as such, the exercise of
jurisdiction under Article 226 of the
Constitution is judicially restricted to situation
WP No.100421/2022
where the facts are uncontroverted and or
where there are not many disputed Material
facts. This Court would normally decide the
matters on the basis of the facts which have
been stated in the affidavits filed and if there
are serious disputes as regards the said facts
requiring either of the parties to establish the
same, normally this Court would not exercise
its jurisdiction.
24.2. The statutory Rule would apply equally to the
election matters and this Court would
normally exercise the jurisdiction only in the
situations where the facts are uncontraverted
and or there are no disputed facts as such.
24.3. I answer point no.3 by holding that if this
Court were to exercise the power of judicial
review under Article 226, it should normally
not make an enquiry into disputed facts, but
could however look into the factual aspects
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insofar as they are not controverted and or
they are admitted.
25. Answer to Point No.4 : Whether in the facts and
circumstances of this case, there is requirement for
this Court to intercede in this matter?
25.1. In the light of the above finding, it would be
required by this Court, as observed by the co-
ordinate Bench of this Court on 21.02.2022,
to ascertain if the Petitioners have established
egregious fraud and if such fraud is
established, should the Court intervene under
Article 226 of the Constitution of India.
25.2. The facts relating to the above matter have
been stated herein above. As regards the
election of Respondent No.6, the same has
been given up by the Petitioners and as such,
it is not in question, it is only the election of
the Petitioner No.1 and Respondent No.5
which is in issue.
WP No.100421/2022
25.3. The contention of Sri. Udaya Holla, learned
Senior Counsel is that, even as per the
admissions made by Respondent No.1 at
paragraph No.10 of the statement of
objections, that due to oversight the
proceedings sheets pertaining to the
Respondent No.5 and Petitioner No.1 were
interchanged and therefore, the same were
exchanged in between Respondent No.5 and
Petitioner No.1. The same being due to
oversight, the Returning Officer after due
notice to all voters present at the Hall made
necessary changes and affixed the said
proceedings sheet in the original register and
put his signature. The admission made in
paragraph No.3 of the vacating stay
application to the similar effect would lead to
the inescapable conclusion that there is a
manipulation of the documents requiring the
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election to be set aside and fresh election to
be held.
25.4. If the facts were limited to the above and
there was an exchange and or interchange
made of the election sheets/voting sheets, the
same in my considered opinion would have
required for this Court to hold an election to
be bad, since there would be no further
requirement to go into the effect of such
interchange or exchange, the same would
amount to interpolation of the documents.
25.5. However, in the present case, the facts
indicates that, if the submission of Sri. Udaya
Holla, learned Senior Counsel is accepted,
Petitioner No.1 would have voted for
Respondent No.5 and Respondent No.5 would
have voted for Petitioner No.1. Such a
situation, in my considered opinion could
never have occurred when Petitioner No.1 and
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Respondent No.5 are fighting tooth and nail
against each other.
25.6. Assuming that the Petitioner No.1 had voted
for Respondent No.5, then the Petitioner No.1
would never have challenged the election of
Respondent No.5 since the vote of the
Petitioner No.1 has been given due effect to
on the Respondent No.5 being the successful
candidate. The fact that the Petitioner No.1
has challenged the election of Respondent
No.5 would lead to the irresistible conclusion
that the Petitioner No.1 has not voted for
Respondent No.5. If that be so, then the
statement of the Respondent No.1 that the
voting sheets have got interchanged and the
same having been replaced accordingly is
required to be believed.
25.7. It is one thing to say that, there is an
intentional manipulation and or fraud
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committed and it is completely another thing
to say that Respondent No.1 has acted in a
negligent manner and or did not exercise due
diligence or due care. The manipulation and
fraud would require an intention to
manipulate the documents and defraud the
Petitioner No.1. Negligence or non-exercise of
due care would not require such an intention.
25.8. In the present case, as observed above, the
contention that there is a manipulation so as
to deprive the Petitioner No.1 of the election
cannot be accepted for the aforesaid simple
reason that if the interchange of the voting
sheets is accepted, then Petitioner No.1 is
deemed to have voted for Respondent No.5
and vice-versa.
25.9. From the admission made in the statement of
objections, the vacate stay application filed by
Respondent No.1, it is clear that Respondent
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No.1 did not exercise due diligence and has,
in fact acted negligently. The same would in
the light of the above not have an impact on
the election of Respondent No.5, necessary
action though would have to be initiated
against the Respondent No.1.
25.10. In view of the above, I am of the considered
view that, there is no aspect which has been
established by the Petitioner to exercise the
powers of judicial review under Article 226 of
the Constitution of India, in the face of the
existence of an alternative remedy, available
to the Petitioner under Rule 15 of the
aforesaid Rules.
26. Answer to Point No.5 : What order?
26.1. The writ petition stands dismissed.
26.2. Liberty is reserved to the Petitioners to
take up necessary proceedings in terms of
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Rule 15 of the Karnataka Municipalities
President and Vice-President Elections
Rules, 1965 or any other proceedings
available under applicable law.
26.3. Respondent No.2 is directed to initiate
such action as may be necessary against
Respondent No.1 for the admitted
negligence on the part of Respondent
No.1 and submit a report to this court
within a period of 90 days of the receipt
of this order.
26.4. The observations made in the present
matter are only restricted to the exercise
of jurisdiction by this court, in the event
of an election petition being filed, the
same would be required to be considered
without being influenced by any
observations made herein.
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26.5. No order as to costs.
Sd/-
JUDGE
SVH
