Karnataka High Court

Sri. K. Srinivas vs The Karnataka State Election ... on 30 May, 2022

Bench: Chief Justice, Ashok S.Kinagi

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 30TH DAY OF MAY 2022

                     PRESENT

THE HON'BLE MR. RITU RAJ AWASTHI, CHIEF JUSTICE

                       AND

    THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

      WRIT APPEAL NO.408 OF 2022 (LB-ELE)

BETWEEN:

1 . SRI. K. SRINIVAS
    S/O KRISHNAPPA,
    AGED ABOUT 60 YEARS,
    R/A NO.12, 1ST CROSS,
    WEAVERS COLONY,
    THIMMAIAH LAYOUT, ANEKAL 562 106,
    BENGALURU URBAN DISTRICT,

2 . SMT. S. LALITHA
    W/O LAKSHMINARAYAN,
    AGED ABOUT 45 YEARS,
    R/A NO.188/2, CHIKKA KERE,
    BRAHMINS STREET, ANEKAL 562 106,
    BENGALURU URBAN DISTRICT.

3 . SMT. HEMALATHA C K
    W/O SURESHA A,
    AGED ABOUT 41 YEARS,
    R/A NO.41, WARD NO.11,
    NEAR ANJENEYA TEMPLE,
    HOSUR BAGILU, ANEKAL 562 106,
    BENGALURU URBAN DISTRICT.
                                       ...APPELLANTS
(BY SRI. M.R. RAJAGOPAL, SR. ADVOCATE FOR
    SRI. H N BASAVARAJU, ADVOCATE)
                          -2-



AND:

1.     THE KARNATAKA STATE ELECTION COMMISSION
       NO.8, 1ST FLOOR, KSCMF BUILDING,
       CUNNINGHAM ROAD,
       BENGALURU-560 052,
       REPRESENTED BY ITS SECRETARY.

2.     THE DEPUTY COMMISSIONER
       BENGALURU URBAN DISTRICT,
       KANDAYA BHAVANA, K.G.ROAD,
       BENGALURU-560009.

3.     TAHASILDAR
       ANEKAL TALUK, ANEKAL 562106,
       BENGALURU URBAN DISTRICT.

4.     THE CHIEF OFFICER
       TOWN MUNICIPAL COUNCIL,
       ANEKAL 562106,
       BENGALURU URBAN DISTRICT.
                                      ....RESPONDENTS

(BY SRI. K.N. PHANINDRA, SR. ADVOCATE FOR
    SMT. VAISHALI HEDGE, ADVOCATE FOR R-1
    SRI. R. SUBRAMANYA, AAG A/W
    SRI. G.V. SHASHIKUMAR, AGA FOR R-2 AND 3)

                           -----

      THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO
SET ASIDE THE ORDER DATED 18.04.2022 PASSED BY
THE LEARNED SINGLE JUDGE IN WP No.3415/2022(LB-
ELE) 2 CONSEQUENTLY ALLOW WP No.3415/2022 (LB-
ELE) FILED BY THE APPELLANTS HEREIN AS PRAYED.

     THIS WRIT APPEAL COMING ON FOR ORDERS THIS
DAY, ASHOK S. KINAGI, J., DELIVERED THE
FOLLOWING:
                           -3-




                     JUDGMENT

This is an intra court appeal filed by the

appellants challenging the order dated 18th April 2022

passed in W.P.No.3415/2022.

2. Brief facts giving rise to the filing of this

appeal are as under : .

The appellants were elected as Councilors to

respondent No.4-Municipal Council from the

respective wards. Respondent No.1 issued a notice

on 27.1.2022 calling upon the appellants to submit

the explanation in writing for non submission of

details of election expenditure spent in the election

and directed the appellants to furnish the details to

respondent No.3. In pursuance to the aforesaid

notice issued by respondent No.1, the appellants

submitted details of expenditure to respondent No.3.

The appellants have not replied to the said show

cause notice of respondent No.1. Respondent No.1,

considering the records, has passed an order dated

15.11.2021 under Section 16-C of the Karnataka

Municipalities Act, 1964 (hereinafter referred to as the

Act of 1964), disqualifying the appellants as

Councilors of the respective wards on the ground that

they have failed to lodge true and correct account of

expenditure with the Returning Officer within the time

prescribed under Section 16-B of the aforesaid Act of

1964. The appellants aggrieved by the disqualification

order dated 15.11.2021 have filed the writ petition in

W.P.No.3415/2022. The writ Court after hearing the

parties dismissed the writ petition. Hence, this writ

appeal.

3. Heard Sri M R Rajagopal, learned Senior

counsel for the appellants, Sri N. Phanindra, learned

Senior counsel for respondent No.1 and Sri R

Subramanya, learned Additional Advocate General.

4. Learned Senior counsel for the appellants, Sri

M.R.Rajagopal submits that notices were issued by

respondent No.1 in respect of non submission of

details of election expenditure and also directed the

appellants to submit full details of the election

expenditure to the Tahsildar of the concerned Taluk.

He submits that the appellants have replied to the

said show cause notices. He submits that before

passing an order of disqualification, no enquiry was

held. He further submits that respondent No.1

without considering the reply has proceeded to pass

the order of disqualification. He further submits that

the said order is in violation of the principles of

natural justice. Further, he has placed reliance on the

judgments of the Hon'ble Apex Court in the following

cases :

1. D Sanjeevayya v. the Election Tribunal, Andra Pradesh and Others (AIR 1967 SC 1211)

2. Thomasmates Gudinho v. The Election Commission of India and Others (ILR 2002 KAR 3078;

3. Election Commission of India v. Telangana Rashtra Samithi And Another (2011) 1 Supreme Court Cases 370

3. ASHOK SHANKAR RAO CHAWAN V. MADHAV RAO KINHALKAR (2014) 7 SCC 99.

He further submits that the writ court without

considering the material placed on record, dismissed

the writ petition. The impugned order is arbitrary and

erroneous. He submits that after dismissal of the writ

petition, respondent No.1 issued notification dated

28.4.2022. The issuance of said notification does not

set the process of election into motion. He submits

that this court can interfere even after issuance of

notification dated 28.4.2022. Hence, on these

grounds he prays to allow the writ appeal.

5. Per contra, learned Senior counsel for

respondent No.1 Sri K N Phanindra, submits that

respondent No.1 issued notice to the appellants

calling upon them to furnish details of election

expenditure to the Tahsildar. He further submits that

the matter is covered by the decision of a Co-ordinate

Bench of this court in W.A.2634/2015 disposed of on

18th March 2019. He submits that after the disposal

of the writ petition, respondent No.1 issued

notification dated 28.4.2022 notifying the calendar of

events. He further submits that the writ appeal was

filed after issuance of calendar of events. He places

reliance on Article 243ZG of Constitution of India and

submits that no election to any Municipality shall be

called in question except by an election petition

presented to such authority and in such manner. He

submits that the writ court was justified in passing the

impugned order. Hence, prayed to dismiss the writ

appeal.

6. Learned Additional Advocate General adopts

the arguments of the learned counsel for respondent

No.1.

7. Perused the records and considered the

submissions of the learned counsel for the parties.

8. Admittedly, the appellants were elected as

councilors to the Town Municipal Council, Anekal on

31.5.2019 for the respective wards. Consequently,

they were required to submit to the Returning Officer

the account of election expenses. The appellants

have not submitted the account of election expenses

to the Returning Officer. Respondent No.1 issued

notices to the appellants dated 27.1.2022. The

appellants have replied to the said notices issued by

respondent No.1. The appellants have stated in

their reply that they were busy in attending to the

problems of the electoral constituencies and they

were not aware of the requirements of lodging

accounts of electoral expenditure and prayed to

condone the delay in filing accounts. In order to

consider the case on hand, it is necessary to examine

the provisions of the Act of 1963. Sections 16-B and

16-C of the said Act reads as under :

            "16B.       Lodging of account with
     the    returning   officer.-   Every   contesting

candidate at the election under this Act shall, within thirty days from the date of election of the returned candidate or, if there are more than one returned candidate at the election and the dates of the election are different, the later of those two dates lodge with the Returning Officer appointed at an election under this Act an account of his election expenses which shall be a true copy of the account kept by him or by his election agent under section 16A.

16C. Failure to lodge an account of election expenses.- If the State Election Commission is satisfied that any person,-

(a) has failed to lodge an account of election expenses within the time and in the manner required by or under this Act; and

(b) has no good reason or justification for the failure;

The State Election Commission shall by order published in the official Gazette declare him to be disqualified and any such person shall be disqualified for a period of three years from the date of the order."

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9. A bare perusal of the said provisions clearly

reveals that it is the duty of the contesting candidate

to submit the account of election expenses with the

returning officer within 30 days of the declaration of

result. In case there is a failure, according to Section

16-C of the Act, the candidate must show a good

reason or justification for such failure. But, in case

the candidate fails to submit the election expenses

within a period of 30 days, according to Section 16-C

of the Act respondent No.1 has sufficient power to

declare the elected person as 'disqualified'. Co-joint

reading of Section 16-B and Section 16-C of the Act of

1963 clearly reveals that Section 16-B is a mandatory

provision and Section 16-C clearly stipulates the

consequences of flouting the mandate of Section 16-B

of the said Act of 1963. Thus, duty has been imposed

by the law upon the contesting candidate to submit

the election expenses within the period of 30 days.

The learned Single Judge considering the aforesaid

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provision, in paragraph No.3(f) and 3(g) has recorded

a finding as follows :

"(f) In their parrot like reply to the notices as aforementioned, petitioners have given two reasons for not lodging the accounts of electoral expenses in time and with the Returning Officer:

(i) they were busy in attending to the problems of the electoral constituencies and

(ii) that they were not aware of the requirement of lodging the accounts of electoral expenditure. They have specifically prayed for accepting the delayed filing of these accounts. The first explanation offered by the petitioners that they were busy and preoccupied in attending to the problems of the electors, cannot be said to be plausible. To qualify an exemption from this obligation, a strong ground has to be made out. The explanation offered is unreasonable to say the least and, if countenanced would lay a very bad precedent with abundant potential for abuse. It also militates against the very intent of legislature prescribing such an obligation. Fortunately, they have not sought refugee under the umbrella of COVID-19, the pandemic having significantly receded by that

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time. Indisputably, it is the duty of every elected representative to cater to the cause of constituency. Other elected members have not defaulted, quoting similar grounds. In matter like this, no leniency is admissible. An argument to the contrary offends the policy content of the provision. Therefore, such an explanation hardly constitutes a ground for the condonation of lapse.

(g) The second explanation offered by the petitioners for not lodging the account is that they were not much aware of its legal requirement. It is dangerous to countenance such a contention, to say the least. The sages of law since centuries have said:

'Ignorantia      legis    nemimem             excusat'.    Any
standard          treatise             of       law        like

BROOM'S LEGAL MAXIMS, Tenth Edition, page 169-171 tells that ignorance of law is no excuse. This age old norm obtaining in all civilized jurisdictions applies equally if not more to the elected representatives, as the trustees of public offices. An argument to the contrary cannot be sustained on any count."

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10. An identical issue came up for consideration

in W.P No.34978/2015 before this Court in the case of

Smt.Khamar Nizami vs. State

Election Commission, Karnataka and others

wherein the court has held as follows :

"8. Section 16-B and Section 16-C of the Act have specific purpose for the submission of the election expenses. Since one of the bane of elections in India is the amount of unaccounted money which is pumped into an election, therefore, Section 16-B and Section 16-C of the Act are merely an attempt to wipe out corruption which has crept into the election process. Such a beneficial purpose of Section 16-B and Section 16-C cannot be lost sight of while examining the legal validity of the impugned order. Since the petitioner has failed to submit any good reason or justification for her failure, the learned Commissioner was very well justified in declaring the petitioners as disqualified under Section 16C of the Act".

11. The said writ petition was dismissed by the

writ court vide order dated 19.8.2015. The said order

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was challenged in Writ appeal No.2634/2015. The

Division Bench dismissed the aforesaid writ appeal

vide order dated 18th March 2019. The issue involved

in the present writ appeal is squarely covered in the

aforesaid writ petition. Thus, the appellants are

bound to submit the list of election expenses before

the State Election Commission within 30 days from

the date of declaration of election. Admittedly, the

appellants have failed to do so. The appellants have

not shown any good reasons or justification for failure

to do so. The reasons assigned by the appellants are

not justified. The writ court considering the material

on record and also the law laid down by the Hon'ble

Apex court has dismissed the writ petition filed by the

appellants. We do not find any illegality in the

impugned order.

12. Learned Senior Counsel for the appellants

submits that by mere issuance of notification dated

28.4.2022, process of election cannot be deemed to

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have commenced. It is well established principles of

law that the election process commenced with

publication of the provisional list of voters. In the

instant case, after the dismissal of the writ petition,

respondent No.1 has notified the calendar of events

dated 28.4.2022. From the perusal of the

notification, it discloses that the date and time of

issuance of election notification by the Deputy

Commissioner is on 2.5.2022 and if voting is

necessary, the date and day of conducting voting is

on 20.5.2022. Thus, the election process has set in

motion. The Hon'ble Apex Court in N.P.PONNUSWAMI

VS. THE RETURNING OFFICER, NAMAKKAL

CONSTITUENCY, NAMAKKAL, SALEM DIST. AND

OTHERS reported in AIR 1952 SUPREME COURT 64

held that interference in the process of election once

the calendar of events are notified would fall foul of

the law. Same view has been reiterated by the

Hon'ble Apex court in the case of State of Goa and

another v. Fouziya Imtiaz Shaikh and Anr.

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reported in (2021) 8 SCC 401, wherein the Hon'ble

Apex Court has held as follows :

"65. A conspectus of the aforesaid judgments in the context of municipal elections would yield the following results.

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 243ZG 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 for when the electoral process is "imminent" i.e., the notification for elections is yet to be announced."

13. As observed above, respondent No.1 has

notified the calendar of events on 28.4.2022 and the

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appellants filed this writ appeal on 4.5.2022. By the

time writ appeal was filed, the process of election was

set in motion. Therefore, in our considered view, the

writ appeal filed by the appellants cannot be

entertained at this stage.

14. The learned senior counsel for the

appellants has contended that the fault committed by

the appellants could be condoned. However, in the

case of Balaji Yadav C.M. v. State Election