Karnataka High Court
Sri. Malappa S/O Krishnappa ... vs Sri. Ramappa S/O Laxmappa ... on 23 August, 2023
Bench: S.R. Krishna Kumar, G Basavaraja
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WA No. 100041 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 23RD DAY OF AUGUST, 2023
PRESENT
THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
WRIT APPEAL NO. 100041 OF 2022 (LB-ELE)
BETWEEN:
SRI. MALAPPA S/O KRISHNAPPA TUBACHI
AGE. 41 YEARS, OCC: AGRICULTURE,
R/O. CHINAGUNDI, TALUK: JAMKHANDI,
DIST. BAGALKOT, PIN 587301.
...APPELLANT
(BY SRI. SHIVARAJ P MUDHOL, ADVOCATE)
AND:
1. SRI. RAMAPPA S/O. LAXMAPPA KALLIWADDAR,
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O. CHINAGUNDI, TQ: JAMKHANDI,
DIST: BAGALKOT-587301.
2. SMT. SHIVALEELA W/O. RAMAPPA GURAV,
AGE: 30 YEARS, OCC: HOUSEHOLD WORK,
R/O: CHINAGUNDI, TQ: JAMKHANDI,
ROHAN DIST: BAGALKOT-587301.
HADIMANI
T 3. SMT. PREMA W/O. JAGADISH PALLED,
AGE: 42 YEARS, OCC: HOUSE HOLD WORK,
Digitally signed
by ROHAN R/O. CHNAGUNDI, TQ: JAMKHANDI,
HADIMANI T NOW AT NEAR DANAMMA TEMLE,
Date: 2023.08.29
12:00:55 -0700 KUNCHANUR ROAD, JAMKHANDI,
TALUK. JAMKHANDI, DIST. BAGALKOT,
PIN 587301.
4. SMT. HEMALATHA W/O CHINNAPPA KADAKOL
AGE. 35 YEARS, OCC. HOUSE HOLD WORK,
R/O. KUNCHANUR, TQ. JAMKHANDI,
NOW AT KUNCHANUR ROAD, JAMKHANDI,
DIST. BAGALKOT-PIN. 587301.
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5. SMT. LAXMI W/O PARAPPA KOHALLI
AGE. 32 YERS, OCC. HOUSE HOLD WORK,
R/O. CHINAGUNDI, TQ. JAMKHANDI,
DIST. BAGALKOT, PIN. 587301.
6. SRI. SHANKAR S/O MARUTI KAMBALE
AGE. 42 YEARS, OCC. AGRICULTURE,
R/O. CHINAGUNDI, TQ. JAMKHANDI,
DIST. BAGALKOT, PIN 587301.
7. SRI. LAXMAN S/O ANNAPPA KAMBALE
AGE. 28 YEARS, OCC. AGRICULTURE,
R/O. CHINAGUNDI, TQ. JAMKHANDI,
DIST. BAGALKOT PIN 587301.
8. SRI. SANJU MADAR
AGE. 28 YEARS, OCC. AGRICULTURE,
R/O. KUNCHANUR, TQ. JAMKHANDI,
DIST. BAGALKOT, PIN 587301.
9. THE ELECTION OFFICER
NO. 14 KUNCHANUR GRAM PANCHAYAT TAHASILDAR
OFFICE, MINI VIDHAN SOUDHA,
KUDACHI ROAD, JAMKHANDI,
DIST. BAGALKOT-PIN 587301.
...RESPONDENTS
(BY SRI.GIRISH A YADAWAD, ADVOCATE FOR C/R1)
(SRI. G.K. HIREGOUDAR, GOVT. ADV. FOR R9)
(R2 TO R8-NOTICE DISPENSED WITH)
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH
COURT ACT, 1961, PRAYING TO SET-ASIDE THE JUDGMENT AND
ORDER DATED 07/12/2021 IN WRIT PETITION NO.104845/2021
PASSED BY LEARNED SINGLE JUDGE BY ALLOWING THIS APPEAL, IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS WRIT APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, S.R. KRISHNA KUMAR J., THE COURT DELIVERED THE
FOLLOWING:
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WA No. 100041 of 2022
JUDGMENT
This intra Court appeal is directed against the impugned
order dated 07.12.2021 passed in Writ Petition
No.104845/2021, whereby the said petition filed by the
appellant/writ petitioner was dismissed by the learned Single
Judge.
2. Heard the learned counsel for the appellant; learned
counsel for caveator respondent No.1 and learned Government
Advocate for respondent No.9/State and perused the material
on record.
3. The material on record discloses that in an election
held to Kunchanur Gram Panchayat on 22.12.2020, result of
the elections were declared on 30.12.2020 declaring that the
appellant was successful candidate and the 1st respondent was
one of the unsuccessful candidates. Aggrieved by the said
result of the election, 1st respondent filed election petition in
E.P.No.1/2021 before the trial Court challenging the election of
the appellant and for declaration that the 1st respondent was
the successful candidate by directing recounting of his votes.
The said election petition was contested by the appellant
herein, who filed his statement of objections.
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4. During the pendency of election proceedings and
before commencement of trial, respondent No.1 filed an
application seeking summoning of Ballot boxes for recounting
of votes, which were involved in the dispute. The said
application having been allowed by the trial Court vide order
dated 7.10.2021, the appellant preferred writ petition in WP
No.104142/2021, which was dismissed by this Court confirming
the order of the trial Court to summon ballot boxes and for
recounting of the votes. Subsequently, on 27.10.2021, sealed
boxes containing ballot papers were brought to the trial Court
and an order came to be passed noticing that they were
recounted in the presence of the parties and their respective
counsel as well as Tahsildar. As per the said recounting
conducted before the trial Court, 69 votes were held to be
invalid/rejected votes. Subsequently, respondent No.1 herein
filed a memo dated 18.11.2021 specifically stating that out of
the aforesaid 69 invalid/rejected votes, only 17 votes were
valid and remaining votes were invalid/rejected votes and
respondent No.1 gave details of the said 17 valid votes along
with ballot paper numbers. So also, the appellant herein filed a
memo dated 20.11.2021 contending out of 69 invalid/rejected
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votes, 21 votes were valid and gave details of ballot papers
along with ballot paper numbers and the matter was adjourned
to 26.11.2021.
5. In the meanwhile, on 17.11.2021, the appellant had
filed an application seeking permission to adduce his evidence
as well as evidence of respondent No.9/Election Officer. By
order dated 26.11.2021, the trial Court rejected the said
application and on the very same day i.e. on 26.11.2021, the
trial Court proceeded to pass the impugned order allowing the
Election Petition holding that trial was not necessary in the
facts and circumstances of the case. Aggrieved by the
impugned order passed by the trial Court, the appellant
preferred instant writ petition i.e. WP No.104845/2021, which
was contested by respondents. After hearing both sides,
learned Single Judge proceeded to pass the impugned order
dismissing the petition on the sole ground that the appellant
had participated in the recounting, which was done in his
presence and consequently, question of permitting him to lead
evidence would not arise. Aggrieved by the impugned order of
the trial Court as well as order passed by the learned Single
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Judge, the appellant is before this Court by way of present
appeal.
6. We have given out anxious consideration to the
rival submissions and perused the material on record.
7. Before adverting to the material on record, it would
be relevant to extract Section 17 and 18 of the Karnataka Gram
Swaraj and Panchayat Raj Act, 1993 (for short, 'Act of 1993'),
which reads as under:
17. Trial of election petition.- (1) the Designated Court
shall dismiss an election petition which does not comply
with the provisions of Section 15.
Explaination.- An order the Designated Court
dismissing an election petition under this sub-section
shall be deemed to be an order made under clause(a) of
sub-section(1) of Section 18.
(2) Where more election petitions than one are
presented to the Designated Court in respect of the
same election the Designated court may, try them
separately or in one or more groups.
(3) Any candidate not already a respondent shall,
upon application made by him to the Designated Court
within fourteen days from the date of commencement of
the trail and subject to any order as to security for costs
which may be made by the Designated Court, be entitled
to be joined as a respondent.
Explanation.- For the purpose of this section, a
trail of petition shall be deemed to commence on the
date fixed for the respondents to appear before the
Designated Court and answer the claim or claims made
in the petition.
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(4) the Designated Court, may upon such terms
as to costs and otherwise as he may deem fit, allow the
particulars of any corrupt practice alleged in the petition
to be amended or amplified in such manner as may in
his opinion be necessary for ensuring a fair and effective
trail of the petition, but shall not allow any amendment
of the petition, which will have the effect of introducing
particulars of a corrupt practice not previously alleged in
the petition.
(5) The trail of an election petition shall, so far as
is practicable consistently with the interest of justice in
respect of the trail, be continued from day to day until
its conclusion, unless the Designated Court finds the
adjournment of trail beyond the following day to be
necessary for reasons to be recorded.
(6) Every election petition shall be tried as
expeditiously as possible and endeavor shall be made to
conclude the trail within six months from the date on
which the election petition is presented to the
Designated Court for trail.
(7) Subject to the provisions of this Act every
election petition shall be tried by the Designated Court,
as nearly as may be in accordance with the procedure
applicable under the Code of Civil Procedure, 1908
(Central Act 5 of 1908) to the trial of suits:
Provided that [the Designated Court] shall have
discretion to refuse for reasons to be recorded in writing,
to examine any witness or witnesses if he is of the
opinion that their evidence is not material for the
decision of petition or that the party tendering such
witness or witnesses is doing so on frivolous grounds or
with a view to delay the proceedings.
(8) The provisions of the Indian Evidence Act,
1872 shall subject to the provisions of this Act be
deemed to apply in all respects to the trail of the
election petition.
(9) Notwithstanding anything in any enactment to
the contrary, no document shall be inadmissible in
evidence at the trial of the election petition on the
ground that it is not duly stamped or registered.
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18. Decision of the Designated Court.- (1) At the
conclusion of the trail of an election petition the
Designated Court shall make an order,
(a) dismissing the election petition; or
(b) declaring the election of all or any of the
returned candidates to be void; or
(c) declaring the election of all or any of the
returned candidates to be void and the
petitioner or any other candidates to have
been duly elected.
(2) At the time of making an order under sub-
section (1) the Designated Court shall also make an
order,-
(a) where any charge is made in the petition of
the corrupt practice having been
committed at the election, recording.-
(i) a finding whether any corrupt practice has
or has not been proved to have been
committed at the election and the nature
of that corrupt practice; and
(ii) the names of all persons, if any, who have
been proved at the trail to have been guilty
of any corrupt practice and the nature of
that practice; and
(b) fixing the total amount of the costs payable
and specifying the person by and to whom
costs shall be paid:
Provided that a person who is not a party to the
petition shall not be named in the order under sub-
clause (ii) of the clause (a) unless,-
(i) he has been given notice to appear before
the Designated Court and to show-cause
why he should not be so named; and
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(ii) if he appears in pursuance of the notice, he
has been given an opportunity of cross
examining any witness who has already
been examined by the Designated Court
and has given evidence against him, of
calling evidence in his defence and of being
heard.
8. A plain reading of Section 17 and 18 of the said Act
of 1993 will clearly indicate that it is necessary and essential for
the Court to conduct a trial in the election petition and the
provisions of Code of Civil Procedure, 1908 are applicable to
such trial in election petitions. The proviso to Section 17(7)
enables the Court to exercise its discretion to refuse permission
to any party who intends to examine any witness or witnesses
for reasons to be recorded in writing that the evidence of the
proposes witness or witnesses was not material for adjudication
of the petition or that the party was doing so on frivolous
grounds or with a view to delay/protract the proceedings.
However, neither the proviso to Section 17 nor the other
provision of Section 17 or 18 enables or empowers the Court to
altogether dispense with or waive the procedure/requirement of
conducting a trial or to do away with the said procedure in an
election petition, particularly, when the same is contested by
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the parties and involves disputed questions of fact and law
which would require adjudication only after a full-fledged trial.
9. In the instant case, a perusal of the order dated
26.11.2021 passed by the trial Court rejecting the application
filed by the appellant for permission to adduce evidence of
himself and respondent No.9 will clearly indicate that no
reasons are forthcoming as to why the said proposed evidence
was not material or relevant or that the appellant was seeking
to adduce the said evidence only on frivolous grounds or to
delay the proceedings. So also, in the final impugned order
dated 26.11.2021, no reasons are assigned by the trial Court
as to why the procedure and requirement of conducting a trial
by refusing to grant permission in favour of the appellant as
required under the proviso to Section 17(7) of the said Act of
1993. In other words, in the absence of any reasons recorded
by the trial Court in writing thereby dispensing with the
requirement of conducting trial in election petitions as required
under Section 17 and 18 of the said Act of 1993, we are of the
considered opinion that the order and impugned order, both
dated 26.11.2021 whereby the trial Court proceeded to allow
the petition filed by respondent No.1 without conducting trial is
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clearly contrary to the said provisions as well as material on
record and same deserves to be set-aside.
10. The material on record also discloses that after
recounting of votes took place on 27.10.2021, the appellant
herein filed an application seeking permission to adduce
evidence of himself and the respondent No.9/Election Officer.
Subsequently, respondent No.1 filed a memo dated 18.11.2021
specifically contending that out of 69 invalid/rejected votes, 17
votes were valid and he mentioned the specific ballot paper
numbers of the said alleged valid votes. Similarly, the
appellant also filed a memo dated 20.11.2021 contending that
out of 69 invalid/rejected votes, 21 votes were valid and he
mentioned the specific ballot paper numbers of the said alleged
valid votes. These undisputed facts and circumstances are a
pointer to the fact that there was a serious dispute between the
parties as regards the numbers and details of the valid votes
even after recounting was done by the trial Court on
27.10.2021 and the said dispute as well as other disputed
questions of fact and contentious issues that arose in the
election petition would necessarily have to be adjudicate only
after conducting trial and consequently, the trial Court
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committed an error in placing reliance only upon the recounting
without providing an opportunity to the parties to adduce oral
and documentary evidence in support of their respective claims
and on this ground also, the impugned orders passed by the
trial Court deserve to be set-aside.
11. It is well settled that when one statute/law provides
that an act should be done in a particular manner, it has to be
done in that manner only and in any other manner as held in
several judgments of the Hon'ble Apex Court including
Ramchandra Keshav Adke (Dead) By LRs & Others Vs.
Govind Joti Chavare & Others1 and Babu Verghese &
Others Vs. Bar Council of Kerala & Others2. It is equally
well settled that the requirement of conducting trial in election
dispute by following principles of natural justice and adhering to
the principles of justice and fair play has to be strictly
construed and sufficient and reasonable opportunity has to be
provided to the parties to establish their rival contentions
during trial particularly, when several contentious issues and
disputed questions of fact and law arise for consideration
between the parties as held by the Hon'ble Apex Court in Jyoti
(1975) 1 SCC 559
(1993) 3 SCC 422
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Basu & others Vs. Debi Ghosal & Others3; Kalyan Singh
Chouhan Vs. C.P. Joshi4 and Sadashiv H Patil Vs. Vithal D
Teke & Others5.
12. In the instant case as stated supra, neither valid
and cogent reasons are assigned by the trial Court in order to
come to a conclusion as to why requirement of conducting trial
was dispensed with and consequently, recounting of votes and
results thereof by the trial Court on 27.10.2021 which were
disputed by both parties could not have been made the basis
by the trial Court to come to the conclusion that the trial was
not required in the instant case which is clearly contrary to law
as well as the material on record, which conclusively establish
that it was incumbent upon the trial Court to conduct a trial and
provide sufficient and reasonable opportunity to both parties to
substantiate their contentions by adducing their oral and
documentary evidence and on this score also, the impugned
order passed by the trial Court deserves to be set-aside.
13. A perusal of the impugned order passed by the
learned Single Judge will indicate that the sole ground on which
1982 (1) SCC 691
(2011) 11 SCC 786
(2000) 8 SCC 82
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the claim of the appellant was rejected is, since the appellant
had participated in the recounting process, he is estopped from
seeking to adduce evidence on the ground of votes are valid or
invalid. In our considered view and in view of law laid down by
the Hon'ble Apex Court referred to supra coupled with facts and
circumstances obtaining in the instant case, which is clear that
an opportunity ought to have been granted in favour of the
appellant to put-forth his defence by conducting trial, learned
Single Judge has misdirected himself in dismissing the writ
petition on the sole ground that there is an acquiescence on the
part of the appellant and consequently, the impugned order
passed by the learned Single Judge deserves to be set-aside.
14. In the result, we proceed to pass the following:
ORDER
a) The appeal stands allowed.
b) The impugned order dated 7.12.2021 passed
by learned Single Judge in WP
No.104845/2021 and the order dated
26.11.2021 passed in EP No.1/2021 by trial
Court are hereby set-aside.
c) The matter is remitted back to the trial
Court for reconsideration afresh with a
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direction to conduct trial and pass
appropriate orders in accordance with law.
d) Liberty is reserved in favour of both parties
to adduce oral and documentary evidence in
support of their respective claims.
e) All rival contentions are kept open and no
opinion is expressed on the same.
f) Both the parties are directed to appear
before the trial Court on 25.09.2023 without
expecting further notice from the Court.
g) The Trial Court shall dispose of the election
petition within a period of three months from
the date of appearance of both the parties
i.e. 25.09.2023 and not later than
21.12.2023.
h) However, since respondent No.1 has
assumed office pursuant to the order of the
learned Single Judge, it is made clear that
the said assumption of office by respondent
No.1 would be subject to final outcome of
the election petition and respondent No.1
shall not claim any equities in this regard.
i) It is further directed that in the event,
election petition filed by respondent No.1 is
ultimately dismissed by the trial Court, the
trial Court shall also issue further directions
including directing the respondent No.1 to
handover the charge to the appellant by
passing appropriate orders in this regard in
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the final judgment to be passed in the
election petition.
Pending applications, if any, do not survive for
consideration and accordingly, they are disposed off.
Sd/-
JUDGE
Sd/-
JUDGE
RH/JTR
