Karnataka High Court
Sri C Prem Kumar vs Sri Puttaswamy on 14 August, 2023
Bench: Chief Justice, M.G.S. Kamal
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WA No. 946 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF AUGUST, 2023
PRESENT
THE HON'BLE MR PRASANNA B. VARALE, CHIEF JUSTICE
AND
THE HON'BLE MR JUSTICE M.G.S. KAMAL
WRIT APPEAL NO. 946 OF 2023 (LB-ELE)
BETWEEN:
SRI C PREM KUMAR
S/O LATE C. CHANNAPPA,
AGED ABOUT 45 YEARS,
MEMBER KOWDLE GRAMA PANCHAYATH
RESIDENT OF KOWDLE VILLAGE,
KOPPA HOBLI, MADDUR TALUK,
MADNYA DISTRICT-571 425.
...APPELLANT
Digitally signed (BY SRI. SHOWRI H R.,ADVOCATE)
by AMBIKA H B
Location: HIGH
COURT OF AND:
KARNATAKA
1. SRI PUTTASWAMY
S/O GOWDAIAH,
AGED ABOUT 62 YEARS,
MEMBER,
KOWDLE GRAMA PANCHAYATH,
R/O TARAMANAKATTE VILLAGE,
KOPPA HOBLI, MADDUR TALUK,
MADNYA DISTRICT-571 425.
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WA No. 946 of 2023
2. THE DEPUTY COMMISSIONER
MANDYA DISTRICT
MANDYA-571401.
3. THE EXECUTIVE OFFICER AND
DESIGNATED OFFICER TO
KOWDLE GRAM PANCHAYATH
ADYAKSHA AND UPADYAKSHA ELECTION,
TALUK PANCHAYATH,
MADDUR TALUK, MADDUR,
MANDYA DISTRICT-571 425.
4. PANCHAYATH DEVELOPMENT OFFICER
KOWDLE GRAMA PANCHAYATH,
KOWDLE, MADDURU
MANDYA DISTRICT-571 425.
5. KARNATAKA STATE ELECTION COMMISSION
NO.6, 2ND FLOOR,
BELLARI ROAD, SADASHIVANAGARA,
BENGALURU-560 080
REPRESENTED BY ITS COMMISSIONER.
...RESPONDENTS
(BY SRI. KRISHNATH J.D ADVOCATE FOR C/R1;
SRI. H.V. MANJUNATH, PRL. GOVERNMENT
ADVOCATE FOR R2)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO a)SET-ASIDE THE
ORDER DATED 10/08/2023 PASSED BY THE LEARNED SINGLE
JUDGE IN WP NO.17450/2023 AND DISMISS THE WRIT
PETITION.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING,
THIS DAY, CHIEF JUSTICE, DELIVERED THE FOLLOWING:
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JUDGMENT
This writ appeal is against the order dated
10.08.2023 passed in W.P.No.17450/2022 (LB-ELE) by
which while allowing the writ petition, learned Single Judge
directed the third respondent -Executive Officer and
Designated Officer to receive the nomination papers of the
respondent No.1 herein and has further directed that if the
nomination papers are submitted by 11.00 a.m. on
14.08.2023, scrutiny to be conducted between 12.00 noon
to 12.20 p.m. and to proceed with the election on
16.08.2023 at 11.00 a.m.
2. The above writ petition is filed by the
respondent No.1 herein contending inter alia that he is an
elected representative of Kowdle Grama Panchayat- the
respondent No.4 herein. That pursuant to a Notification
dated 14.06.2023 issued by respondent No.2- Deputy
Commissioner, the respondent No.3 was appointed as a
designated officer to conduct the election for the post of
Adhyaksha and Upadhyaksha. A notice of the meeting was
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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 time for
submitting of nominations was fixed between 10.00 a.m.
and 11.00 a.m. of the said date, at the Office of Village
Panchayath. The scrutiny of the nomination papers was
scheduled between 1.00 p.m. to 1.15 pm.. Withdrawal of
the nomination was scheduled between 1.15 p.m. 1.25
p.m. and the election was held to be thereafter.
3. The grievance of the respondent No.1
/petitioner is that though on 07.08.2023 he went to the
Panchayath Office at about 10.30 a.m. to submit his
nomination papers as there was huge crowd in front of
Village Panchayath, he was prevented from entering the
office and that he was finally able to submit his nomination
papers at 10.50 a.m., which was however refused to be
received by the respondent No.3 designated officer on the
grounds of delay. It is further contended that
subsequent to rejection of nomination, meeting could not
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be held on the same day and was adjourned to
16.08.2023 for want of quorum. That since the meeting is
adjourned, the respondent No.1/petitioner sought for
direction to the respondent-authorities to receive his
nomination papers to contest the election. That the
alternate remedy by nature of election petition is not an
efficacious remedy. Hence, filed the writ petition.
4. The writ petition is resisted by the State on its
maintainability as the process of election having already
been commenced, no order could be passed that would
impinge upon the election process. That the alternate
remedy being available under the statute invocation of
jurisdiction of this Court under Article 226 and 227 of the
constitution of India was improper. It was also contended
that even if the election is postponed the law warrants
that the process has to be re-started from where it was
stopped.
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5. Learned Single Judge considering the factual
aspects of the matter opined that since the election which
was to be held on 07.08.2023 was not held for lack of
quorum and was adjourned to 16.08.2023 without any
reasons while proviso to sub-Section (1) of Section 53 of
the Gram Swaraj Act requires it to be held on the very
next day, there would not be any impediment in accepting
the nomination papers of the respondent No.1. That
accepting the nomination of respondent No.1/petitioner
will not in any way delay the election beyond 16.08.2023,
as 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. On these reasoning learned Single Judge allowed the
writ petition by the impugned order. Aggrieved by the
same, the present appeal.
6. Heard Sri. D.R.Ravishankar, learned Senior
counsel appearing for Sri. Showri, H.R, learned advocate
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for appellants, Sri. Kashinath J.D, learned advocate for
respondent No.1 Sri. H.V.Manjunath, learned Principal
Government Advocate for respondent No.2 and perused
the records.
7. It is settled principles of law that once election
is set in motion by issuing calendar of event judicial
intervention in the process of election is not permitted.
That if the Government or any other authority passes an
order postponing the election after issuance of calendar of
events and if such an order is without authority of law, the
election process shall take-of from where it was
interrupted by the order passed without authority of law.
That non-observance of provisions of Act and Rules made
thereunder would amount to "any dispute" and only proper
remedy for the aggrieved party would be to call in
question the result of such non-compliance, is by way of
an election petition. (K.Channaiah and others vs. State
of Karnataka -ILR 2000 KAR. 2572, S.N.Manjunath
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and others vs. State of Karnataka and others -ILR
2002 Kar. 3978, N.P.Ponnuswamy vs. Returning
Officer Namakkal Constituency and others -(1992) 1
SCC 94).
8. It is not in dispute that in the instant case
election to the post of Adhyaksha and Upadhyaksha of
respondent No.4 -Panchayat was scheduled on
07.08.2023. Time for submission of nomination papers
was fixed between 10.00 a.m. to 11.00 a.m. and that the
respondent No.1/petitioner could not file his nomination
papers and that the meeting has been postponed to
16.08.2023 for want of quorum.
9. The contention of respondent No.1/petitioner,
however is that he was prevented deliberately by persons
with vested interest from entering the office but he was
able to reach at 10.50 a.m. That his nomination was
rejected for not filing the same within time. The said
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rejection is mala fide only to assist and support the
appellant herein. That the mahazar drawn with regard to
these incidents is defective. That there was no CCTV
footage as the same has not been functional since four
days. That postponement of meeting to 16.08.2023 is
also deliberate apart from being opposed to provisions of
Section 53 of the Panchayat Raj Act, 1993.
10. These are the disputed facts, particularly the
allegations of malafide on the part of the respondent-
authorities which cannot be gone into in a proceedings
under Article 226 and 227 of the Constitution of India.
11. Section 45(2) of Panchayat Raj Act, 1993
provides that any dispute relating to validity of election of
a Adhyaksha and Upadhyaksha of Gram Panchayath under
Section 45 of the Act, shall be decided by designated
Court having jurisdiction over the Panchayath area or the
major portion of Panchayth area whose decision thereon
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shall be final. That apart, Rule 14 of the Karnataka
Panchayath Raj (Election of Adhyaksha and Upadhyaksha
of Grama Panchayat) Rules, 1995 provides that any
member within 15 days from the date of announcement of
results of election under Rule 8 may question the validity
or otherwise of the same before jurisdictional civil Judge
(Sr.Dn) . The remedies available are also provided under
the said Rule 14.
12. Merely because the election in the instant case
is postponed from 07.08.2023 to 16.08.2023, that alone
would not give raise to any right or opportunity in favour
of the respondent No.1/petitioner enabling him to file his
nomination papers as directed by the learned Single Judge
in the impugned order.
13. The allegations of respondent-authorities
deliberately preventing the respondent No.1/ petitioner
from filing nomination papers within time, postponement
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of the meeting on want of quorum from 07.08.2023 to
16.08.2023 and the entitlement of respondent No.1
/petitioner to contest the election are all the issues
required to be gone into in the properly constituted
election petition contemplated under sub-Section (2) of
Section 45 of the Karnataka Grama Swarja and
Panchayath Raj, 1993 and Rule 14 of the Karnataka
Panchayath Raj (Election of Adhyaksha and Upadhyaksha
of Grama Panchayat) Rules, 1995. There are no special
circumstances brought on record which would justify
interdicting in election process or granting opportunity to
the respondent No.1/petitioner to submit his nomination
papers as done in the impugned order.
14. Adverting to the observation of the learned
Single Judge at paragraph 14 of the impugned wherein it
is stated that "the court is concerned about the sanctity of
the justice and not about the sanctity in terms of Rules
and Procedures which come in the way of petitioner in
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exercising his civil /statutory right to contest the election
so long as the same does not adversely affect the election
process as such", the learned Senior counsel for the
appellant submits that allowing the respondent
No.1/petitioner to submit his nomination papers to be
considered would adversely affect the right of the
appellant as he is the only candidate whose nomination
papers has been accepted and not withdrawn before the
stipulated period. He refers to sub-Rule (5) of Rule 8 of
the Karnataka Panchayat Raj (Election of Adhyaksha and
Upadhyaksha of Grama Panchayat) Rules, 1995. The said
sub-rule (5) provides that if after expiry of time prescribed
for withdrawing the nomination and if the nomination of
only one candidate which is in order and not withdrawn
before the prescribed time, the designated officer shall
declare such candidate as elected to the post of
Adhyaksha or Upadhyaksha as the case may be. Thus, in
the light of this provision, as rightly contended by learned
Senior counsel for appellant, the submission on behalf of
respondent No.1/petitioner that no adverse affect would
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be caused to the appellant if the respondent
No.1/petitioner is allowed to contest the election cannot be
countenanced.
15. In the circumstances, we are of the considered
view that the appellant has made out ground for
interference. No justification to depart from the settled
principles of law concerning the process of election.
Accordingly, reserving liberty to the respondent
No.1/petitioner to raise his challenge to the election with
all contentions raised in the writ petition, if so advised, the
present appeal is allowed. Impugned order passed by the
learned Single Judge is set aside.
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
ru
