Karnataka High Court

Sri. Puttaswamy vs The Deputy Commissioner on 10 August, 2023

Bench: Suraj Govindaraj

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                                                             NC: 2023:KHC:28495
                                                       WP No. 17450 of 2023




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 10TH DAY OF AUGUST, 2023

                                            BEFORE
                        THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
                        WRIT PETITION NO. 17450 OF 2023 (LB-ELE)
                   BETWEEN:

                   SRI. PUTTASWAMY
                   S/O LATE GOWDAIAH
                   AGED ABOUT 62 YEARS
                   MEMBER
                   KOWDLE GRAMA PANCHAYATH
                   R/A TARAMANAKATTE VILLAGE
                   KOPPA HOBLI, MADDUR TALUK
                   MANDYA DISTRICT-571425

                                                                   ...PETITIONER
                   (BY SRI. KASHINATH J D.,ADVOCATE)

                   AND:

                   1.   THE DEPUTY COMMISSIONER
                        MANDYA DISTRICT
                        MANDYA-571401
Digitally signed
by                 2.   THE EXECUTIVE OFFICER AND
NARAYANAPPA             DESIGNATED OFFICER TO
LAKSHMAMMA
Location: HIGH
                        KOWDLE GRAMA PANCHAYATH ADHYAKSHA
COURT OF                AND UPADHYAKSHA ELECTION
KARNATAKA               TALUK PANCHAYATH
                        MADDUR TALUK
                        MADDUR, MANDYA DISTRICT-571428.

                   3.   THE PANCHAYATH DEVELOPMENT OFFICER
                        KOWDLE GRAMA PANCHAYATH
                        KOWDLE, MADDUR TALUK
                        MANDYA DISTRICT-571425

                   4.   KARNATAKA STATE ELECTION COMMISSION
                        NO.6, 2ND & 3RD FLOOR
                        BELLARI ROAD
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                                               NC: 2023:KHC:28495
                                            WP No. 17450 of 2023




     SADASIVANAGARA
     BENGALURU-560080
     REPRESENTED BY ITS COMMISSIONER

5.   C. PREM KUMAR
     S/O LATE K. CHANNAPA
     AGED ABOUT 45 YEARS
     GRAM PANCHAYATH MEMBER
     KOWDLEY GRAM PANCHAYAT
     R/AT KOWDLEY(V), KOPPA(H),
     MADDUR(T), MANDYA (D)- 571425
     (AMENDED VIDE ORDER DATED 10.08.2023)


                                                    ...RESPONDENTS

(BY SRI. B.J. SOMAYAJI., ADVOCATE FOR R2 & 3;

SMT. PRATHIMA HONNAPUR., AAG A/W SRI. M.B. SANTHOSH KUMAR., HCGP FOR R1;

SRI. VAISHALI HEGDE, ADVOCATE FOR R4)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS PERTAIN TO MEETING PROCEEDINGS PURSUANT TO ELECTION MEETING NOTICE BEARING NO.

THAPAMMA.GRAPAM.AUCHU.CR.14/2021-22 DATED 24/07/2023 ISSUED BY R2 AS PER ANNEXURE-B AND ETC.

THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

(ORDER

1. The petitioner is before this court seeking for the

following reliefs.

I. Call for records pertain to meeting proceedings pursuant to election meeting notice bearing no. ThaPamMa:GraPam:AuChu:Cr:14/2021-22 dated 24-07-2023 issued by respondent no.2 as per Annexure-B

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II. Issue writ in the nature of certiorari to quash the election meeting notice bearing No. ThaPamMa:GraPam:AuChu:Cr:14/2021-22 dated 24-07-2023 issued by respondent No.2 designated officer as per Annexure-B

III. Consequently issue writ of certiorari to quash meeting proceedings held on 07.08.2023 as per Annexure-E in respect of respondent No.3 Panchayath at the instance of respondent No.2 and also quash the adjourned meeting scheduled on 16.08.2023 vide bearing No. ThaPamMa:GraPam:AuChu:Cr:14/2021-22 dated 07-08-2023 issued by respondent No.2 Designated officer as per Annexure-G as illegal, suffers from malafides.

IV. Consequently issue writ or direction in the nature of mandamus to respondent No.1 and respondent No.2 to issue fresh calendar of events in accordance with Rule 5 of Karnataka Panchayath Raj (Gram Panchayath Adhyaksha and Upadhyaksha Election) Rules 1995 by giving free and fare atmosphere in and around the respondent No.3 office premises in scheduled election date

or in the alternative direct the respondent No.2 to receive the nomination paper of the petitioner on the meeting schedule on 16.08.2023 to the post of Adhyaksha and conduct election in accordance with law to meet the interest of justice.

V. Pass any other order or direction deems fit to the facts and circumstances of the case.

2. The petitioner claims to be an elected representative

of Kowdle Gram Panchayat - respondent No.3. In

pursuance of a notification dated 14.06.2023 issued

by the Deputy Commissioner - respondent No.1, the

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Executive Officer of Kowdle Gram Panchayat was

appointed as a Designated Officer to conduct the

election for the post of Adhyaksha and Upadhyaksha.

A meeting notice having been issued on 24.07.2023

to conduct the election, the calendar of events was

issued indicating the date of election as 07.08.2023.

In the said notification, the time for submitting the

nomination was fixed from 10.00 a.m. to 11.00 a.m.

on 07.08.2023 at the office of the Village Panchayat.

The scrutiny of the nomination papers to be held

between 1.00 p.m. to 1.15 p.m., withdrawal of the

nomination to be made between 1.15 p.m. to 1.25

p.m. and thereafter, the election to be held.

3. The contention of the petitioner is that though on

07.08.2023 at 10.30 a.m. he went to the Panchayat

Office, since there was a huge crowd in front of the

office of the Village Panchayat, the petitioner was

prevented from entering the office and he was finally

able to submit the nomination papers at 10.50 a.m.

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but Designated Officer - respondent No.2 refused to

receive the nomination by contending that the

nomination papers are delayed and not filed within

time and as such, the nomination papers having

been rejected, the petitioner is aggrieved by such

rejection and in that background the aforesaid reliefs

are sought for.

4. Sri.Kashinath J.D., learned counsel for the petitioner

would submit that:

4.1. The petitioner has visited the office of the Gram

Panchayat within the prescribed period.

However, the petitioner could not submit the

nomination papers immediately since he was

prevented from doing so and later on it was

falsely contended that the nomination papers

were submitted belatedly. This aspect was

sought to be established by calling upon the

Panchayat to produce the CCTV footage when

the Panchayat has indicated that the CCTV

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footage was not available since for the last four

days, the CCTV though working was not

recording the events and as such, the recording

was not provided to the petitioner.

4.2. The other allegations which have been made by

the petitioner is as regards a relative of the

candidate whose nomination has been accepted

being a former deputy commissioner sitting in

the office of the respondent No.2 and it is at his

behest that petitioner's nomination was not

accepted. In that regard, photographs have

also been produced by the petitioner at

Annexures-H and H1 to the petition.

4.3. His further submission is that a mahazar has

been drawn up thereafter indicating that the

petitioner's application was submitted

subsequently without indicating as to at what

time the petitioner submitted the nomination

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papers and this mahazar has also been drawn

at the behest of the candidate whose

nomination has been accepted and thereby

preventing the petitioner from contesting the

election.

4.4. His further submission is that post the rejection

of the nomination when the meeting was held,

the meeting came to be adjourned due to lack

of quorum in terms of sub-section (1) of

Section 53 of the Karnataka Gram Swaraj AND

Panchayat Raj Act, 1993 (for short, 'Gram

Swaraj Act') and now the meeting is scheduled

on 16.8.2023 and as such, there would be no

embargo for the respondents to receive the

nomination papers submitted by the petitioner

to enable the petitioner to contest the election

inasmuch as there is no delay or any

obstruction which would be caused to the

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process of the election and there being no

adverse impact on the said election.

4.5. His further submission is that the petitioner's

nomination itself having been rejected, the

petitioner would not have the remedy under

subsection (2) of Section 43 of the Gram

Swaraj Act in terms of filing an Election Petition

before the designated Court/Tribunal since in

terms of Rule 14 of the Karnataka Panchayat

Raj (Election of Adhyaksha and Upadhyaksha of

Grama Panchayat) Rules, 1995 (for short,

'Rules, 1995') he can only seek for setting aside

or declaration of the returned candidate to be

void but cannot seek for declaration of his own

election. As such, he submits that the remedy

of the Election Petition would not be an

alternate or efficacious remedy for the

petitioner.

NC: 2023:KHC:28495 WP No. 17450 of 2023

5. Smt.Prathima Honnapur, learned Additional Advocate

General appearing on behalf of respondent No.1 and

2 would submit that:

5.1. This Court ought to restrain itself from

interfering with the election process. The

election process having already commenced,

any order which this Court may pass in relation

thereto would impinge upon the election

process, which this Court ought not to do.

5.2. Her submission is that once the election process

has commenced, the only remedy which is

available to any aggrieved party is filing an

Election Petition in terms of sub section (2) of

Section 43 of the Gram Swaraj Act and this

Court ought not to exercise its powers under

Article 226 and 227 of the Constitution of India.

The interrupted election would have to continue

from the stage that it was interrupted and as

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such the nomination papers of the petitioner

cannot be accepted at this stage.

5.3. She relies upon the decision of a Co-ordinate

Bench of this Court in the case of K.Channaiah

and others vs. State of Karnataka1 more

particularly Para 40 thereof, which is

reproduced hereunder for easy reference:

40. This principle of law equally applies with respect to interruption of election in the middle of the calendar of events by an order of the Government. If the Government or any other authority passes an order postponing the election after the issuance of the calender of events and if that order is without authority of law, then again the election process shall take off from where it was interrupted by the order passed without authority of law. In other words if an Authority postpones the elections after the calender of events was in force and if it is ultimately found that the Authority had no power in law to postpone the elections the answer is that one must revert to the original calender of events from the stage where it was interrupted.

5.4. Relying on the above, she submits that if there

is any interruption in an election, the said

election would have to continue from the stage

where it was interrupted and in the present

ILR 2000 KAR 2572

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matter, the nomination of the petitioner not

having been filed within time and not having

been accepted by respondent No.2, the election

would proceed in terms of proviso to sub

section (1) of Section 53 of Gram Swaraj Act

and as such, the question of accepting the

nomination of the petitioner at this stage would

not arise.

5.5. She relies upon the decision of a Coordinate

Bench of this Court in the case of

S.N.Manjunath and others vs. State of

Karnataka and others2 more particularly Para

10 thereof, which is reproduced hereunder for

easy reference:

10. Further, Section 45(2) speaks of 'any dispute' whatever be its nature. The petitioner herein complains of non-observance of provisions of the Act and the rules made thereunder which would be squarely covered by the description 'any dispute' as found in Section 45(2). The complaint of the petitioner herein is that the quorum prescribed under the Act was not present at the meeting in which the sixth respondent was elected, resulting

ILR 2002 KAR 3978

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in non-compliance of the provisions of the Act. If the election of the sixth respondent is as a result of non-compliance of Section 53 of the Act, in terms of Section 45(2) of the Act, the only proper remedy for the aggrieved party would be to call in question the result of such non-compliance in an Election Petition. In C. Subrahmanyam v. K. Ramanjaneyullu [(1998) 8 SCC 703.] the Apex Court was seized of an order of the Andhra Pradesh High Court passed under the Andhra Pradesh Panchayat Raj Act, 1994 to the effect that a Writ Petition was maintainable against an order directing repoll made during the process of election. Dealing with the said issue, the Apex Court observed:

"In our opinion, the main question for decision being the non-compliance of a provision of the Act which is a ground for an election petition in Rule 12 framed under Act, the Writ petition under Article 226 of the Constitution of India should not have been entertained for this purpose."

To similar effect is the decision in Umesh Shivappa Ambi v. Angadi Shekar Basappa [(1998) 4 SCC

529.] where the Apex Court settled the law as to the proper remedy that a party aggrieved by an election result has to pursue in the following terms:

"Once an election is over, the aggrieved candidate will have to pursue his remedy in accordance with the provisions of law and the High Court will not ordinarily interfere with the elections under Article 226. The High Court will not ordinarily interfere with the elections under Article 226. The High Court will not ordinarily interfere where there is an appropriate or equally efficacious remedy available, particularly in relation to election disputes. In the present case, under Section 70(2)(c) of the Karnataka Co-operative Societies Act, 1959 any dispute arising in connection with the election of a President, Vice-President, Chairman, Vice-Chairman, Secretary, Treasurer or member of Committee of the Society has to be referred to the Registrar by raising a dispute before him. The Registrar is required to decide this in

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accordance with law. This was, therefore, not a fit case for intervention under Article 226."

In Vekataramaiah v. Chief Election Commissioner [ILR 1995 Kar 1821.] this Court had occasion to examine the question as to which is the right forum for calling in question the declaration of an election result under the Act. Dealing with the issue at para 8 of its order, the Court held:

"The election of the members of the Zilla Panchayat are held under the Karnataka Panchayath Raj Act, 1993. Section 19 of the Act provides the grounds for declaring the election void. A petition questioning the election can be filed before the Munsiff having jurisdiction. If there is any non-compliance with the provisions of the Act or any Rules or orders made thereunder, the Munsiff shall declare the election of the returned candidate to be void. It is therefore clear that the forum is constituted or questioning the election of the candidate under the Panchayat Raj Act."

Thus, the case law on the point also leaves nothing to doubt that where the statute provides for an effective alternative remedy, the party aggrieved cannot invoke the Jurisdiction of the High Court under Article 226 of the Constitution.

5.6. Relying on the above, she submits that any

dispute in terms of sub-section (2) of Section

45 of Gram Swaraj Act would include the

election to the post of Aadhyaksha or

Upadhyaksha. The acceptance or rejection of a

nomination would also be encompassed within

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the phrase any dispute requiring the petitioner

to only approach the efficacious remedy of an

election petition under subsection (2) of Section

43 of the Gram Swaraj Act.

5.7. She relies upon the decision of the Coordinate

Bench of this Court in the case of

B.D.Manjuanth and others vs. State of

Karnataka and others3 more particularly

Paras 29 and 30 thereof which are reproduced

hereunder for easy reference:

29. There is some substance in the submission made by the learned Counsel for the petitioners that, similar matter has come up for consideration before this Court in the case of K. Channaiah v. State of Karnataka (Supra 4), wherein it is held that

"The direction is given by the impugned Notifications clearly violate the provisions of the Act. Postponement of elections without any power under the statute cannot be resorted to by mere directions under Section 30B. I have already stated that it is not permissible to postpone elections as the law clearly contemplates that elections should be held before the expiry of the period of the committee There is no power under the Act to enable the Registrar or the Government to postpone the election. I have referred to all the

ILR 2005 KAR 927

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relevant Sections which deal with the mandate of the statute not to postpone the elections. Therefore, it is not known how directions can be given by the Government under Section 30B to postpone the elections. The judgment referred to by the learned Advocate General which upheld the directions given to the banks not to go on for further appointments of staff was clearly within the purview of Section 30B and was in public interest However, in this case, there is no public interest involved in postponing the election contrary to the statutory provisions of the Act."

We now come to the next question. The vexed question is whether once the calendar of events is in force and the election comes to a grinding halt because of interruption and when the interruption is lifted, whether the election should continue under the same calendar of events or under the fresh calendar of events.

Further, it is held that:

"The pronouncements of the Courts clearly indicate that whenever the election is interrupted by an interim order of the Court and finally the petition is dismissed the election must proceed from the stage at which it was interrupted. This in my opinion is the correct position of law."

The ratio of the law laid down by the Supreme Court and this Court as referred to above has the direct bearing on the facts and circumstances of the instant cases also.

30. In the instant case, it is not in dispute that the election process has already been commenced and some of the members have filed their nominations to the respective Banks/Societies/Unions and except in three cases, already decision has been taken and draft calendar of events has been kept ready and after spending huge sum of money for the preparations has been done and in the pursuance of the Notification issued by the Government on 20th August 2004, the election

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process should be completed on or before 30th September 2004. In the Notification dated 20th August 2004, in crystal clear manner, it has been clarified by the Government that:"the election is not postponed in respect of the Societies where the calendar of events has already been issued" in the Clarification Notification issued by the Government on 1.9.2004, without mentioning any reasons the elections to other Banks/Societies/Unions are postponed, contrary to the object and reasons mentioned in the preamble of the earlier Notification. Therefore, in my considered view, at any stretch, the impugned Notification dated 1.9.2004 cannot be made applicable to the Societies where the election process has already been commenced and set in motion, in view of the clear mandatory provisions of the Co-operative Societies Act and Rules and also in view of the well settled law laid down by the Apex Court and this Court in hosts of judgment referred above.

5.8. Relying on the above, she submits that once a

calendar of events is in force, the election

cannot be interfered with and/or when there is

an interruption to election for other reason

otherwise than the reason of the Court then the

election would proceed from the stage that it

was interrupted.

5.9. She relies on Rule 14 (1) of Karnataka

Panchayat Raj (Election of Adhyaksha and

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Upadhyaksha of Grama Panchayat) Rules, 1995

(Kannada), which reads as under:

14. ZÀÄ£ÁªÀuÁ Cfð-(1) AiÀiÁgÉÃ ¸ÀzÀ¸ÀågÀÄ 8£ÉÃ ¤AiÀÄªÀÄzÀ ªÉÄÃgÉUÉ ZÀÄ£ÁªÀuÉ ¥À°vÁA±ÀªÀ£ÀÄß WÉÆÃ¶¹zÀ ¢£ÁAPÀ¢AzÀ (ºÀ¢£ÉÊzÀÄ ¢ªÀ¸ÀUÀ¼À) M¼ÀUÁV CzsÀåPÀë CxÀªÁ ¸ÀAzÀ¨sÁð£ÀÄ¸ÁgÀ G¥ÁzÀåPÀëgÀ ZÀÄ£ÁªÀuÉAiÀÄÄ ¹AzsÀÄvÀéªÀ£ÀÄß AiÀiÁgÀ C¢üPÁgÀ ªÁå¦ÛAiÉÆ¼ÀUÉ UÁæªÀÄ ¥ÀAZÁ¬ÄwAiÀÄÄ §gÀÄªÀÅzÉÆÃ [D ¹«¯ï dqïÓ (¹Ã¤AiÀÄgï r«d£ï) ªÀÄÄAzÉ (E£ÀÄß ªÀÄÄAzÉ "¹«¯ï dqïÓ, ¹Ã¤AiÀÄgï r«d£ï" JAzÀÄ G¯ÉèÃT¸À¯ÁVzÉ)] ªÉZÀÒUÀ½UÁV E£ÀÆßgÀ LªÀvÀÄÛ gÀÆ¥Á¬ÄUÀ¼À oÉÃªÀuÉAiÀÄ£ÀÄß ¨sÀzÀævÉUÁV ElÄÖ ZÀÄ£ÁªÀuÁ CfðAiÀÄ£ÀÄß ¸À°è¸ÀÄªÀ ªÀÄÆ®PÀ ¥Àæ²ß¸À§ºÀÄzÀÄ.

5.10. Lastly, she relies upon the decision of the

Hon'ble Apex Court in the case of

N.P.Ponnuswamy vs. Returning Officer,

Namakkal Constituency and others4 more

particularly Paras 25 and 29 thereof which are

reproduced hereunder for easy reference:

25. The conclusions which I have arrived at may be summed up briefly as follows:

(1952) (1) SCC 94

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(1) 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.

(2) In conformity with this principle, the scheme of the election law in this country as well as in England is that no significance should be attached to anything which does not affect the "election"; and if any irregularities are committed while it is in progress and they belong to the category or class which, under the law by which elections are governed, would have the effect of vitiating the "election" and enable the person affected to call it in question, they should be brought up before a Special Tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress.

29. The points which emerge from this decision may be stated as follows:

(1) The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it.

(2) Strictly speaking, it is the sole right of the legislature to examine and determine all matters relating to the election of its own members, and if the legislature takes it out of its own hands and vests in a Special Tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it.

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5.11. Relying on the above, she submits that any

claim as regards any fact vitiating the election

should be brought only before the Special

Tribunal by means of election petition and not

be made subject to a dispute before any Court

while the election is in progress. The election

having commenced, the calendar of events

having been issued, the election being in

progress and as such, this Court ought not

intercede in the matter.

5.12. On the above basis, she submits that if at all

the petitioner is aggrieved by non-acceptance

of nomination, he can only question in terms of

sub-section (2) of Section 43 read with sub-

Rule (1) of Rule 14 of Rules 1995.

6. Sri.Y.D.Harsha, counsel who appears for respondent

No.5 who has now been subsequently impleaded and

who is the candidate whose nomination has been

accepted, adopts the submission of learned AAG.

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7. Sri.Somayaji, learned counsel for respondent No. by

relying upon Article 243 (O) of the Constitution of

India would submit that no election to any Panchayat

shall be called in question except by election petition

before any authority and as such, he submits that

this Court would not have any jurisdiction to

entertain the above petition.

8. Heard Sri.Kashinath J.D., learned counsel for the

petitioner, Smt.Prathima Honnapur, learned

Additional Advocate General appearing on behalf of

Sri.M.B.Santhosh Kumar, learned HCGP for

respondent No.1 and 2, Sri.B.J.Somayaji, learned

counsel for respondents No. 3, Smt.Vaishali Hegde,

learned counsel for respondent No.4 and

Sri.Y.D.Harsha, learned counsel for respondent No.5

and perused papers.

9. There are several arguments which have been

advanced by the respondents as regards the

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authority or jurisdiction of this Court to intercede in

an election process once the election has

commenced. There can be no dispute with regard to

all the contentions which have been advanced by all

the counsels more particularly learned Additional

Advocate General. The Hon'ble Apex Court and this

Court have in several judgments which have been

cited and several others which have not been so

cited have categorically interdicted the Courts from

interfering with the election process by either staying

the election or postponing the election or passing

such orders, which may have an adverse impact on

the election as such. Those decisions and the ratio

laid down therein are undisputable and this Court

would definitely not have a power to interdict an

election or postpone the election. This Court would

also not has the power where there are interse lis

between the contestants insofar as the situation like

nomination papers are refused or the election has

been carried out in an improper manner or the like

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and all those would have to be considered only in an

election petition and would be subject to a trial of the

parties to the election petition placing both

documentary and oral evidence to establish their

contentions.

10. Having considered all the decisions which have been

relied upon by the learned Additional Advocate

General, I am of the considered opinion that those

decisions would not be applicable to the peculiar

facts of the present case inasmuch as in the present

case since the issue and lis is not as regards

interdicting the election or postponing the election

inasmuch as the grievance of the petitioner is that

the petitioner's nomination was not accepted though

the petitioner submitted the nomination within time.

The mahazar which has been drawn up by

respondent No.2 is also quite peculiar inasmuch as in

the mahazar, respondent No.2 has not stated as to

at what time the petitioner submitted his nomination

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papers except to state that the nomination papers

were not submitted within given time frame. The

CCTV footage the petitioner sought for to establish

the time of his arrival and submission of the

documents are also stated to be not available since

the recording facility was not working peculiarly for

the last 4 days before the election.

11. The election which was to be held on 07.08.2023 was

infact not held on account of lack of quorum and has

such adjourned to 16.08.2023 since respondent No.2

had meetings and was travelling to Delhi. When in

terms of proviso to sub-section (1) of Section 53 of

Gram Swaraj Act, the Presiding Authority could have

only adjourned the meeting to the following working

day which is not a public day. In the present case,

the election has been postponed by the Presiding

Authority viz., respondent No.2 by a period of one

week on account of lack of quorum as on

07.08.2023. When the election could be postponed

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for a period of seven days, without giving any reason

as to why the date of election is fixed as 16.08.2023

when in terms of proviso to sub-section (1) of

Section 53 of Gram Swaraj Act, it has to be held on

the very next day, I do not see why the Executive

Officer cannot accept the nomination forms

submitted by the petitioner which will not in any way

delay the election beyond 16.8.2023 since once the

nomination form is accepted, it only needs to be

scrutinized for the purpose of acceptance or not and

that would not in any way delay or interdict the

election to take place on 16.08.2023 at 11 00 a.m.

as fixed in the proceedings by respondent No.2.

12. As held by Hon'ble Apex Court in Ponnuswamy's

case at Para 30 thereof, the Hon'ble Apex Court has

not decided the question as to what the powers of

the High Court under Article 226 and 227 and

Hon'ble Apex Court under Article 137 of the

Constitution of India may be but has left that open.

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This probably for the reason that there cannot be a

straight jacket formula which could be laid down to

cater to all situations and this Court vested with the

powers under Article 226 and 227 of the Constitution

of India would be required to exercise its discretion

in such a manner as to render justice in its true spirit

and sense.

13. The non-acceptance of the nomination papers

irrespective of grounds which have been alleged by

the petitioner and without going into the veracity

thereof, would definitely impinge upon the

petitioner's right to contest the election. If the

election had been held on that day or immediate

following day, then this court would have relegated

the Petitioner to the remedy of an Election petition.

However, when the election has not been so held and

the election has been postponed by one week and till

today has not been held any direction issued by this

Court to accept the nomination papers and permit

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the petitioner to contest the election to be held on

16.08.2023 would not in any manner adversely affect

the election process, delay the same or interdict it.

14. Though learned Additional Advocate General would

contend that sanctity of calendar of events is

required to be protected, requiring the candidates to

have submitted their nomination forms within the

time prescribed, and any direction to accept the

nomination form, the sanctity would be disturbed.

What this Court is more concerned is sanctity of

justice and not sanctity in terms of Rules and

procedure which comes in the way of the petitioner

exercising his civil/statutory right to contest the

election so long as the same does not adversely

affect the election process as such. The election now

being scheduled on 16.08.2023, there is enough and

more time for the Respondents to accept the

nomination, scrutinize the same and hold the election

without any delay being caused in the election.

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15. It is a requirement of democracy that elections are

held in a free and fair manner and all persons

wanting to contest are so permitted as also all

persons eligible to vote are so permitted. The

acceptance of the nomination forms of the Petitioner

would only aid the spirit of democracy since, the

same would enable a contest between two candidate,

only one candidate contesting and be declared as the

returning candidate would not be in the interest of

democracy.

16. In that view of the matter, I pass the following:

ORDER

1. The Writ Petition is allowed.

2. Respondent No.2 is directed to receive the nomination papers of the petitioner, if the same is submitted by the petitioner by 11.00 a.m. on 11.08.2023. Scrutiny to be conducted between 12.00 noon to 12.30 p.m. on 11.08.2023. The election shall go on, on 16.08.2023 at 11.00 a.m.

3. At this stage, Sri.Somayaji, learned counsel for respondents No.2 and 3 submits that

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respondent No.2 is not available on 11.08.2023.

4. As such, respondent No.2 is directed to accept the nomination papers of the petitioner if submitted by the petitioner by 11.00 a.m. on 14.08.2023. Scrutiny to be conducted between 12.00 noon to 12.30 p.m. on 14.08.2023. The election shall go on, on 16.08.2023 at 11.00 a.m.

5. Learned HCGP and counsel for respondent No.2 are directed to communicate the above order to respondent No.2, who shall act on the same without awaiting for a certified copy of this order.