Karnataka High Court

The Chief Electoral Officer And ... vs Suryakanth on 30 August, 2023

Bench: Mohammad Nawaz, Rajesh Rai K

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                                                   NC: 2023:KHC-K:6885-DB
                                                          WA No. 200095 of 2023




                                IN THE HIGH COURT OF KARNATAKA,

                                        KALABURAGI BENCH

                             DATED THIS THE 30TH DAY OF AUGUST, 2023

                                              PRESENT

                           THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
                                                 AND
                              THE HON'BLE MR. JUSTICE RAJESH RAI K

                             WRIT APPEAL NO.200095 OF 2023 (GM-RES)

                      BETWEEN:

                      1.   THE CHIEF ELECTORAL OFFICER & EX-OFFICIO
                           SECRETARY TO GOVT.
                           NIRVACHANA NILAYA, SHESHADRI ROAD,
                           BENGALURU - 560 001.

                      2.   THE DEPUTY COMMISSIONER
                           AND DISTRICT ELECTION OFFICER
                           BIDAR - 585 401.
                      3.   THE ASSISTANT COMMISSIONER
                           AND ELECTION OFFICER -50, BIDAR
                           TALUK & DISTRICT : BIDAR - 585 401.
Digitally signed by
KHAJAAMEEN L                                                       ...APPELLANTS
MALAGHAN
Location: HIGH
COURT OF
                      (BY SRI. D. P. AMBEKAR, ADVOCATE)
KARNATAKA
                      AND:

                      1.   SURYAKANTH S/O LATE GURUPADAPPA
                           NAGAHARPALLI
                           AGED 54 YEARS,
                           R/O OF HOUSE NO.66-161
                           NEAR MEDICAL COLLEGE,
                           KHE COLONY TALUKA AND DISTRICT
                           BIDAR - 585 401.

                                                                 ... RESPONDENT
                      (BY SRI. JAIRAJ K. BUKKA, ADVOCATE)
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                                    NC: 2023:KHC-K:6885-DB
                                          WA No. 200095 of 2023




      THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO CALL FOR THE
RECORDS AND SET-ASIDE THE IMPUGNED ORDER DATED
07.06.2023 PASSED BY THE SINGLE JUDGE OF THIS HON'BLE
COURT ALLOWING THE W.P.NO.201574/2023 (S-REG) AS
PRAYED FOR AND ETC.,

      THIS APPEAL COMING ON FOR ADMISSION, THIS DAY
MOHAMMAD NAWAZ J., DELIVERED THE FOLLOWING ::


                          JUDGMENT

This writ appeal is directed against the order dated

07.06.2023 passed by the learned Single Judge in

W.P.No.201574/2023, whereby a certiorari was issued

quashing the endorsement dated 30.05.2023 at Annexure-

E issued by respondent No.3 namely the Assistant

Commissioner and Election Officer-50, Bidar Tq & Dist:

Bidar. Further a mandamus was issued directing

respondent No.3 to consider and issue the documents

sought including 17-A register, by 09.06.2023.

02. The relevant facts which may be necessary for

disposal of this writ appeal are as under:-

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Respondent herein is an unsuccessful candidate from

a certain party in the election held for Bidar (North)

Constituency-50. Vide Annexure-D to the writ petition, he

sought for issuance of 17-A register by filing necessary

application before respondent No.3 therein. The said

application was rejected vide endorsement dated

30.05.2023 as per Annexure-E to the writ petition, stating

that the same cannot be issued in view of Rule-93 of

Conduct of Elections Rules, 1961.

03. The learned Single Judge while allowing the writ

petition observed that Rule-93 would only apply in respect

of ballot papers used and unused and certain other items

and not in respect of 17-A register which is required for

the petitioner to file election petition and therefore, he

cannot be deprived of the copies of the same.

04. It is relevant to extract Rule-93 of the Conduct

of Elections Rules, 1961, which reads as under:-

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93. Production and inspection of election papers.-

(1) While in the custody of the district election officer or, as the case may be, the returning officer-

(a) the packets of unused ballot papers with counterfoils attached thereto;

(b) the packets of used ballot papers whether valid, tendered or rejected;

(cc) the printed paper slips sealed under the provisions of rule 57C;

(d) the packets of the marked copy of the electoral roll or, as the case may be, the list maintained under sub-section (1) or sub-section (2) of section 152; and

(dd) the packets containing registers of voters in form 17-A;

(e) the packets of the declarations by electors and the attestation of their signatures;

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Shall not be opened and their contents shall not be inspected by, or produced before, any person or authority except under the order of competent Court.

[(1A) The control units sealed under the provisions of rule 57C and kept in the custody of the district election officer shall not be opened and shall not be inspected by, or produced before, any person or authority except under the orders of a competent Court.]

(2) Subject to such conditions and to the payment of such fee as the Election Commission may direct, -

(a) all other papers relating to the election shall be open to public inspection; and

(b) copies thereof shall on application be furnished.

(3) copies of the returns by the returning officer forwarded under rule 64, or as the case may be, under clause (b) of sub-rule (1) of rule 84 shall be furnished by the returning officer, district election officer, chief electoral officer or the Election Commission on payment of a fee of two rupees for each copy."

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05. As rightly contended by the learned counsel

appearing for appellants, Rule-93 (dd) pertains to the

packets containing registers of voters in form 17-A.

Therefore, restrictions imposed under Rule-93 would apply

to 17-A register as well. Hence, the learned Single Judge

was not right in observing that the said Rule would only

apply in respect of ballot papers used and unused and

certain other items and not in respect of 17-A register.

06. It is relevant to extract Para Nos.10, 11 and 12

of the Judgment of the Hon'ble Supreme Court in the case

of Fulena Singh vs. Vijay Kumar Sinha and others,

reported in AIR 2009 SC 2247 :-

"10. Rule 93 of the said Rules mandates that election papers mentioned in the said Rule shall not be opened and their contents shall not be inspected by, or produced before, any person or authority except under the orders of a competent court. It is fairly well-settled and needs no restatement at our hands that inspection of election papers mentioned in detail in Rule 93 (a) to (e) is not a matter of course. Inspection of

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those papers cannot be ordered and parties cannot be permitted to inspect the same for the purposes of making a roving enquiry in order to fish out the materials and to derive support to one's own case. It is equally well settled that a clear case is required to be made out for ordering the production and inspection of election papers by the parties.

11. It is true that the election petitioner adduced evidence on his behalf by examining seven witnesses. The learned trial Judge observed that all the witnesses "have supported the allegation of double voting at more than one booth by relations and supporters of respondent No. 1. Some of the witnesses have specifically given the names of such voters whose names appear in voter's list at more than one place." That is all the discussion about the evidence and material available on record. Learned trial Judge did not assign any reason whatsoever in support of his conclusion permitting the parties to inspect the registers of voters in Form 17A. The learned trial Judge allowed the application as a matter of course. We find it very difficult to sustain such laconic and unreasoned order which may have a

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serious bearing on the questions that arise for consideration in the main election petition which is still awaiting trial and disposal.

12. We do not propose to minutely examine the nature of evidence and express our opinion as to whether any case at all is made out for permitting the parties to inspect the packets containing registers of voters in Form 17A; for such an exercise on our part may cause unintended prejudice to either of the parties in the main Election Petition which is still awaiting adjudication. Be it noted the prayer in the Election Petition is to set aside the election of the appellant and declare the respondent/election petitioner to have been duly elected from 172, Lakhisarai Assembly Constituency after scrutiny, inspection and recounting of ballot papers. Similar is the prayer in the application disposed of by the learned trial judge resulting in passing of the impugned order. The grant or refusal of the prayer in the election petition to a large extent depends upon the decision as to whether parties have to be permitted to inspect the registers in Form 17A. It would be appropriate to decide the main election petition in order to finally resolve the lis between the parties.".

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07. In view of the above, the order passed by the

learned Single Judge quashing Annexure-E to the writ

petition and directing respondent No.3 therein to consider

and issue 17-A register cannot be sustained. Accordingly,

the order insofar as directing respondent No.3 to issue 17-

A register has to be set-aside.

08. The learned counsel appearing for the

respondent has contended that certain other documents

were also sought to be issued and they are not issued.

09. In this regard, the learned counsel appearing

for appellants would submit that Annexure-D to the writ