Karnataka High Court
Sri A N Ajaykumar vs The Election Officer on 17 July, 2023
Bench: R Devdas
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NC: 2023:KHC:24836
WP No. 21679 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE R DEVDAS
WRIT PETITION NO. 21679 OF 2022 (LB-ELE)
BETWEEN:
SRI A N AJAYKUMAR
S/O NAGARAJU
AGED ABOUT 35 YEARS
R/O AREHALLI VILLAGE
HOSKERE POST
HAGALAVADI HOBLI,
GUBBI TALUK 572 222
TUMAKURU DISTRICT
...PETITIONER
(BY SRI. V B SIDDARAMAIAH., ADVOCATE)
AND:
Digitally signed 1. THE ELECTION OFFICER
by JUANITA
THEJESWINI HOSAKERE GRAMA PANCHAYATH
Location: HIGH GUBBI TALUK
COURT OF
KARNATAKA TUMAKURU DISTRICT 572 222
2. SRI. NATARAJU
S/O NANJEGOWDA
AGED ABOUT 54 YEARS
R/O AREHALLI VILLAGE
HOSAKERE POST,
HAGALAVADI HOBLI,
GUBBI TALUK 572 222
TUMAKURU DISTRICT
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3. SRI.B.K. MAHESH
S/O KAPANNA
AGED ABOUT 41 YEARS
R/O AREHALLI VILLAGE
HOSAKERE POST
HAGALAVADI HOBLI,
GUBBI TALUK 572 222
TUMAKURU DISTRICT
4. SRI. JAGADEESH
S/O SIDDAPPA
AGED ABOUT 57 YEARS
R/O SHIVANEHALLI VILLAGE
HOSAKERE POST
HAGALAVADI HOBLI
GUBBI TALUK 572 222
TUMAKURU DISTRICT
...RESPONDENTS
(BY SRI. NITHYANANDA K.R., AGA FOR R1 & R11
SRI. M.R. NAGABHUSHANA, ADVOCATE FOR R2
SRI. M. CHAMARAJ, ADVOCATE FOR R3)
R4 SERVED-UNREPRESENTED
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE JUDGEMENT DATED 16.09.2022 PASSED BY THE
PRINCIPAL SENIOR CIVIL JUDGE AND JMFC GUBBI,PASSED IN
ELECTION PETITION NO.1/2021 VIDE ANNEXURE-F FILED BY
THE R2 VIDE ANNEXURE-A AND ETC.,
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
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WP No. 21679 of 2022
ORDER
R.DEVDAS J., (ORAL):
The petitioner is aggrieved of the impugned
judgment dated 16.09.2022 passed by the learned
Principal Senior Civil Judge & JMFC, Gubbi (Election
Tribunal for short), in Election Petition No.1/2021.
2. The private respondents herein participated in the
elections of the Gram Panchayat of Shivanehalli
constituency of Hosakere Gram Panchayat. There were 19
posts of the members of the Gram Panchayat. The
petitioner had contested in the General category.
Amongst the General category, when the results were
declared, it was declared that the petitioner obtained 296
votes, while the second respondent Sri Nataraju obtained
295 votes. The petitioner was declared the winning
candidate. Being dissatisfied with the declaration of
results, the second respondent filed an Election petition
before the Election Tribunal. The prayer made by the
second respondent in the Election Petition was to declare
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the election held to the Gram Panchayat in Block No.V,
Shivanehalli constituency of Hosakere Gram Panchayat, as
void and to declare that the petitioner therein as the
returned candidate, after recounting of votes. A prayer
was also made to direct the Election Officer to produce all
the ballot papers and other documents for verification and
for recounting. The Election Petition was allowed and the
results declared by the Returning Officer were held to be
void and illegal. Consequently, the second respondent
herein was declared the elected candidate for the
Shivanehalli constituency in the General category.
Aggrieved the petitioner has come before this Court.
3. Learned Counsel for the petitioner had submitted
during the course of these proceedings that although the
second respondent herein had sought for recounting of
votes and thereafter to declare the election petitioner as
the returned candidate, nevertheless, the Tribunal allowed
the election petition and declared the election petitioner as
the returned candidate, even without any recounting. It
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was also submitted that the ballot papers were not
produced before the Tribunal, although there were a
direction. Having accepted the submissions made at the
bar, this Court by order dated 26.06.2023 directed that
the Tahsildar, Gubbi Taluk, shall take the assistance of the
Election Commission and hold the recounting on
06.07.2023 in the presence of the petitioner and all the
contestants. The Tahsildar was directed to submit a report
regarding the number of votes cast in favour of each of
the candidates and to show the number of votes held in
respect of each of the candidates and to submit the results
in a sealed cover. Accordingly, a sealed cover was
submitted by the Tahsildar on 12.07.2023. On opening of
the sealed cover, this Court found that the petitioner had
obtained 300 votes, while respondent No.2 had secured
295 votes. However, learned Counsel for respondent No.2
had submitted that earlier the Returning Officer had said
that there were four invalid votes and however, nothing is
said regarding the invalid votes. It was also pointed that
one of the candidates i.e., S.S.Jagadeesh-respondent No.4
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herein had earlier secured 54 votes and now it is seen that
only 50 votes were polled in favour of S.S.Jagadeesh. The
Tahsildar, Gubbi Taluk, was therefore directed to file an
affidavit in this regard.
4. The learned AGA has today filed an affidavit of the
Tahsildar. On going through the affidavit it is clear that
the votes polled in favour of the second respondent herein
has remained at 295 without any change. However, there
is a difference of four votes in favour of the petitioner, two
votes in favour of Smt.Geetha M. There is no change
insofar as respondents No.3 and 4 are concerned.
However, it is seen that in the recounting there has been
changes in respect of three other candidates and the
benefit has gone to the petitioner and one other candidate
viz., Smt.Geetha M.
5. Learned AGA submits that the entire proceedings
were video recorded as directed by this Court and there
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cannot be any scope for doubting the proceedings of
recounting.
6. Having regard to the factual findings that have
been received by this Court in terms of the directions
earlier issued, this Court is of the considered opinion that
although there is slight change in the numbers,
nevertheless, the petitioner who had earlier declared to
have secured 296 votes has in fact secured 300 votes and
the second respondent who had filed the Election petition
has received 295 votes. The main grievance of the second
respondent was that the counting was not held properly.
Now that the recounting was held in the presence of the
parties as per the directions issued by this Court, there
can be no further grievance left with the second
respondent. Regarding invalid votes, it is clarified that at
no stage it was declared that there were any invalid votes.
It now appears that four votes were wrongly counted in
favour of three other candidates.
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7. Consequently, the writ petition is allowed. The
impugned judgment passed by the Election Tribunal in
E.P.No.1/2021 dated 16.09.2022 is hereby quashed and
set aside. The original declaration made by the Returning
Officer is upheld. The petitioner shall continue as a
member of the Gram Panchayat in terms of the original
declaration made by the Returning Officer.
8. At this juncture, learned Counsel for the petitioner
submits that after the judgment was passed by the
Election Tribunal, the second respondent has taken charge
as the member of the Gram Panchayat. However, a
meeting notice has been issued by the Returning Officer
on 10.07.2023 in the matter of electing Adhyaksha and
Upadhyakha of the Gram Panchayat, in the meeting
scheduled on 18.07.2023, i.e., tomorrow.
9. The Returning Officer is therefore directed to
permit the petitioner herein to cast his vote in the
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elections to the post of Adhyaksha and Upadhyaksha
which is scheduled to be held on 18.07.2023.
The learned AGA is directed to communicate the
operative portion of the order passed by this Court to the
concerned Returning Officer.
Sd/-
JUDGE
JT
