@ IN THE HIGH coum or KARNATAKA AT BATEI.' *.-.313 .1192. 15% 9;! or -um.-n-u.ua|_ aria. rnuom-.ii'1"i' 1 » A Z THE HOIPBLE MR..ms'r1cE J 7 I-ION'BLI-.'. WRIT APPEAL 1 1*»: G *
AGED Anozrlf 53 YEARS V
r._)c.<:.; AGRlCULf1'U.Ri–'.3_'l*~~ *
PEKMAN 1::1~:*1.tA1T)i31&~~.s;:ss%%':
IwiAi<G}':NAi:<iAL .%P'£}s*;'
L}AvANA<3-a+:1<i::"'1'A1.u1«;
%1'[;5AvANAumR.*sLpltsmeici'
. .. APPELLANT
my s;?1't¢o§ciiEiA;ruNABAsAPPA, SR.ADVO0A'l'E, 1-'on S1-{LG M
_CIIANDR«_'-£51.!-'Ew, ADV. 3
., .. . T}
=1':-11:; TAHSLLDAR AND xerrruxennmu OFFICER
A(}RlCUL'l'URAL PRODUCER i3(.'IIvi1'v'1i'i"i'ii3
I}A'.'ANAGERE
DAVANAGERE DlS'l'RlC'l'
2 THE AGJ:{lCUL'l'URAL PRODUGER MARKETING
C-OMMl'l'l'EE
ul-
8.)
REP BY ITS SECRETARY
DAVANAGERE, DAVANAGERE DlS’l”Rl(‘.}’T’
3 SR1 H K VIRUPAKSI-IAPPA
3,’
AGED ABOUT 66 YEARS .
R/0 HEBBAL A
DAVANAGERE V
DAVAN AGERE DISTRIC-‘1’. » H ‘ – .. _V
4 SR1 H MALLIKARJUNAPPA
3/0 H 0MKARAPPAV.__ –
AGED _ALiQUT 49 YEARS g
R/O ANAGODU AT AM) ms’P,
DAVANAGERE TAL’UK .-ma m’.m1«;Aa:a~R =
D1s*rR1c*1′ *
5 -.l H. – .5.
S/O H V ..
v v9
Afiiiifi 3’§H*:f’:3A:%s 1
R] 0._A1\:A(3ou AT POST,
DAVANAGERE’TAI.L’K’
L)_:A.v.1\_r~:;=.s.r..4.E1~:.I;: p1s’i’R1.~L’.’1′
. . . RESi-’01’V” ‘i:’31’Vi’i’S
j
my H SANGULLI, AGA FOR R an
C.-i¥.P.~%’PIu,. R-2, SR! A.L.PREMAKUM.A.I~3, ..DV.. 9;’
_ _ WRl’l’ FILED US 4 OF THE KARNATAKA HIGH
ACT PRAYING TO SET ASIDE THE ORDER PASSED
‘ 1N “‘!.’V.’-iE’–..\«.l.Il-£”” ‘3″-‘””.!’l(l’l\! Ne.53b’.’.,’ 2-U06 l.)A’l’l*.}!.) 2-6,19,! ‘.-!U’J’.7.
J1 -IJJI-I.
Amu” ” ‘
._fv’AGARAJ_. J. DELIVERED TI IE FOLLOWING:
¢4\’\~f-w…
–
:5
JUDGIJMI ‘
The ‘”‘mum”**1t h”r””1 l”‘s challenged tl’:’- eo’rec,'”ess__o”
the order of the learned Single J11dge,V–elf?
25.9.2007 passed in w.P.5e6_:g;Voe {APMc)e’deeteli;;i1§;g Vltotl»
interfere with the order of the (_Jr.Dn._), T
23-62-2666 di’mis’i1f* 13:2″ No.4/’
that was filed by said order of the
Trial Judge. ht
2. oil’ the appellant as averred in
his mti……n ..1;–;:e. “under . ?t3e-..ion 21. of the léarruetaka
léroduce ____ __lvlarket1’ng (Regulation) Act, 1966
to as “the Actl’) are as under:
H and the respondent Nos.3 to 5 (who
were”respecfively the petitioner and respondents-3
.. I L_ to 5 in the election rnisepetition) contested the
election held on 29.8.2005 to the post of Director of
second respondent APMC, Davanagere, from No.9,
Anuguu’ “*1: c0fi§'”””–*cy . ‘i”‘ne respondent
‘l’e..e*.lder cf t)a’.’er.a% was th — ;”\’:’:1′.i.h”i’iii”fi tlffim
to Le fld election: The nem.inet_ione ef the
A”‘\,
‘Di 3%
V ” candidates.
ti
appellant and the respondent nos.3 to in
order. Elections were held on the said
the supervision of flrst respondent
Officer. ‘
constituency po
~~,A…._…-.J– . 7-1 1L;
~. ~– = 1
v——c’»—-§ . –‘.
V 3530
_ voters :_their’ on the said
date asthma smmgseudns together. After
the ‘number of ballot papers
“those5remalned unused were
lrluly. the concerned officer at each
form No.22 as required under
__Rule”-.30 .oi’. the”~~–1*5lgricultural Produce Marketing
(ifEegniatien)v__l_<juies, (hereinafter to as
E
I'
I'
I
E
' Iirit'-fig 1' V0 .23 was l1el_
.11 31-03-2005 by the
.. Officer in the presence of the
After the ballot boxes from the
respective polling stations were opened counting of
the votes was commenced but the number of ballot
papers recorded in form No.22 were not tallied with
the number of ballot papers recorded in form
No.23.
E ii
cl) From out of total 3530 votes from all
stations, 49 votes were found the 4_
appellant was found secured _128’5–::’.’troizes;.VV
respondent No.3 1282f. .’
u — »-., .t _ so
.-ze.-.;.«~«.r=….g _fi.oe_r_,=.. declaring the
s.ppel£ont;Veiectl2:d,g vrentViiiside___his chambers with 4
east in favour of the
:;,A_t first respondent received
te!ophoiile.._::”co;ll_fi’to the effect that the third
who was supported by
congxsss-i should be declared elected by
” or ‘l’herei’ore firt rsrrndent
another form No.23 mentioning ..here.__
that 35% %ot pamrs found from all
ht-Jlot mxes, resulting in shortage of 4 ballot
” _ E’.’.9.f.’|.’151’EL
2 V» ‘J 4,:-.\ lmmediately aiter noticing the some the appellant
filed his protest petition at about 12.30 p.m. on
that day itself before the first respondent Returning
Officer requesting him to recount the votes in
terms of the votes found in form No.22. The first
respondent, on receipt of the said pefifion, instead
C’:-‘~*–‘-“”\—-
6
of resorting to Rule 37 of the Rules, took othltaform
No.23 which was earlier prepared
therein the total number of ballot papers 4_
the ballot boxes as 3530… and .
another form No.23 ”
number of ballot papers asp_’35’2′:6 sifioirv’ingV 4
baiiot papers were
I—l
mmediately on n-ti:L.a_;:, acts of the tirst
-‘.’9
ree,_ee1eet, his agent filed
_ rotest’ day but the first
not ‘consider the same but
see-.e er the elections illegally
declariI1g._ respondent was elected.
~1*1_1ererez+e, A3[tbe*~ ..:apI;1ellant ‘filed the said Election
Mise.t_’etiti–on~._: No.4/05 before the Triai Judge
D
~ __pAseelcin’g”*~the_A declaration that the eiection of ti’
I…
_ third~.e1’espond’nt LU the post of mrecmr of $99..
I3.
” ;-‘.P.*.’l(.1 from «Nu!-‘st’;-‘ Amen.-lu
.~co_n;stit=.ieney is t.r..i_ and, that the appellant be
it elected to the said post.
The first respondent-Tahsildar-Returning Officer filed
T writ.en objections to the election petition and the second
respondent AFMC adoperd the same. ‘. he contenti-ms .1’ she
fiI’St respondent in the said objections are as under:
C””<T"–L.–«…–
7
– 1) in all the 9 polling stations totally 35§.3{):.:”vote1’s
cast their votes and the details in the
same were mentioned in Form 4_
of each polling station,_,at I
required under Rule 30.__of V
votes was held in
Er-ea,
of Rules 35 and 3′?”~eo “me eaid’ i~£ul_ee;g The ‘mm-“et
boxed fie” all th” etatlene wen fine-.1
“‘1 the Kefi ‘t..e.p[e,;11r.l..datee and
a.ge1’1t.,_ that was put to
papers from each
Totally 3526 ballot e
~~~~ all the ballot boxes.
ii) ml the :§;eaae ballot papers were taken into
eeesmeeattentes provided under Rule 35(4) of’ the
l{L1lesat.1d.i-‘onn No.23 was prepared mention
ll the of ballot papers feund in
A uau t mr*alnir.5; in respective pellmg
+ 11
~ :lete..tie… ….ne….1…ne- 11.). .a h- copy of’lv’orm No.23.
No mi_t_alce occurred as alleged by the petitioner
iii) Counting was held legally and impartially. From
out of 3,526 votes the Appellant N.G.PuttaswaIny
was found secured 1,281 votes and the other two
candidates namely 4* respondent
(—‘$”‘”g—
8
Mallilcaljunappa and 5″‘ respondent
Kumar were found secured
615 votes and 49 votes were p_
Since the 3″” respondent; ” »
one vote more than
the former was declared eleeted. V. hp
at para 5 of the tl’1″‘V’
results of tile» Afirgst talked
iv) ‘l’t;wont_.;ia sought for recounting, his
>\!1 V :’ npotilconsidered because, as per the
mgujlesmts, ppneitner the candidate nor his agent
during the counting of
the” xms. l’=Aoc’o1dingly first respondent issued
Ll- _A.
___eI1_dorsement. Annexures-2 to 1’2 establish U181″.
Vt.he’~fi_1’st respondent i’oli”*ed th” 9 mrisions of
1
‘iii 37 at’ the l-miss in J3… process of
_ flee votes. ‘1’.h._. _.rst respondent never
‘~ V “:.collud..d ,,-_.- t__e respondent as alleged by
V) Though 3,530 ballot papers were given to the
voters at the polling stations only 3,526 ballot
papers were found from all the ballot boxes taken
together. Therefore, 4 voters, after receiving the
C”r\~/'”1______
9
ballot papers might not have put them
respective ballot boxes.
4. in order to substantial.
petitioner got examined himself and
as l-‘.\.l!a.1 t- :3: Renpondentsl didwnotdhtahocasge on’
their behalf any evldenc-*,– .°itl’1er-~er?”* .6 .. “need.
on the oral evidence of PLWSQ’ the documents
l2)xs.l’1 to me the uedggJ%_by*~erdcr dated: 23-02-
2006, dismisaedif-the”3V’–.._ of the appellant.
Aggie’-.re… ..h,§-:5, oi’ “cilmissal the appellant filed
learned Court by order dated 2o.9.’2(‘)()7’
the did not exhaust the alternative
‘ appellwt hasdellall-enged in .his. writ Ann? I __th the orders
provided under the Act. Therefore the
2.
” single Judge and the learned l-‘r-l.{..’i’v’il {u’r.Ln.},
5. We have heard the arguments of Srl
“l{.olCham1abasappa, the learned Senior Counsel for the
appellant, Srl tlarfladhar Se-.ngo….. the lesmed ALIA
wr-
10
representing respondents-1, Sri C.S.Patjl{
S1*’i.A.L.i-‘reirnaimrnar, the learned ad.–_1.a..es f _r;””:espoiid__e11t
Nos.2 and 3 respectively. Respondeht 1’V’6S:.”-‘i-~ .– :é;1d”~.::5«. A
remained absent. In View of the ‘
learned counsels for the followings’
our c..1’_I.._idemtion:
HP
2
CI
|-mi
EE
‘at’
52′
S:
5}
CD
:a
6′
1 J
E
P
I
id-
=3
U’
:7
. ofAPMC Act *9
…. “ruleM_is issued by this Court in
the writ petition whether the same is
V -_ to decided on merits?)
mm: _ V_W.hethef:the findings recorded by the Civil
” ” ‘ Jiidge [dr.Dn.) in the impugned order are
either erroneous or-error in law?
Poirxt’ Whether the appeliant has made (rt :1
.. .. +
Our findings on these points are in the ‘aIfirmuflvev?.Vitor.the
following it it
s. ‘r”o'”1t No. 1: At the outset, sn lg§;engnnabaa¢appea,’
the learned Senior Counsel for .the_uapp’el_haint *
the learned Single Judge was not in the
writ petition of the appellant ” declining to
interfere with t…e ..rdr3_~.r o*’ the–d.’Is’lr;isfsal of petition by
th- learned the appellant did
not avail the _ provided under the
Act. Per coicvttrat: order of the learned
single Judge, al-.. t..e learned coon-sis
_i1_fVr*fe”-ring to Section 26 of the Act
the”~3es1ned Single Judge was quite justified in
L’ dismissing on the said ground.
.V 7. 26 of the Act provides that any person
; by tiny decision or any order of the l’.’lu..*1si.’i’ 5 *rw’
-Jtgdge {dr.l}n.} } passed under ‘Sections 20 to 23 or 25
. .1najr; 30 days from the date of such deqision or order,
to the District Judge within whose territorial
r–..(–“””””‘\__.-‘
ii
jurisdiction the market area concerned is situate
decision of the L): trict -Ju an en sue. ==m~=–‘ .
and c'”riu’i”e. Thus ‘t is ciear from previsioiiv ” ” V
appellant herein had an alternative of
the impugned order passed dledae ”
dismissing the election petition of under
4
n5;
rt
*9-
SeoLl_n 20 .1′ he Aet but the .4 Vet’ avaiihig th”
same, apfinaehed this petition.
8. On the appellant in
his election :’ Judge and also in
the writ petition; ‘i that serious allegations -1’
–..I…., mate.l.a!.._’i;.egelity’A._anf£’ faveuriti-sin “”v’v’ards ‘u”r 3:
cl.
respondent against the first respondent Tahsildar
was Ofiicer and under whose supenrisiondzhe
of votes took place. Further, it
also a1legee.tag;§inst him that he hurriedly and fi’a_u..nl_.n_y
,.v.;l’e… led.” 1’es””I1de’fit es the rettir-‘1″‘ eandidrte ‘3? a
l of single vote in gross violation of the relevant
éj of the Act and the Rules thereunder, without
.eonsidering the request of the appellant candidate for
fl–.g-Y””–“‘—‘–I
..’
ll\
13
recounting the votes when 4 votes (ballot papers)
shown as sh..rt,ln1′.s ma. Besides this it is
appellant candidate that the l-{eturnirg the d
original form No.23 with a new
showing that there was shonagefiniissing of ‘V ,
tron: one ballot box and one 1 another ballot
box ‘pertaining m A”i+al11va1’thi polling
stations respectiveiy. .ng .eu_I1d that
the appellant and the third
respondent ” said four votes were
–an_L1l_.ntly the said ballot boxes just
to d”‘lare as .._ected by majority of ‘one
~V.lf’vv..ti1e«~.i:above allegations made by the appellant
candidate first respondent Returning Officer, who
— eras req_1iredv to act fairly and impartially in conducting the
counfiigg of the sates, are .eund pm-wed, it has to be held that
first respondent, being a resporrihl” “fiiwr, acted in
fgross violation of principles of natural justice and also quite
unfairly towards the appellant. It is the settled principle that
C’-._|’-“\I–\…..——
it’:
in a case where there is violation of the principles of:
justice and where the statutory authorities do hot
u:t”:II”§ c’:’I.u.u unu Uuu ‘ E ‘V”l,.Vl.1i$, this»
availability of alternative and eiiicaeiousl* ,-the l’
petitioner by way of statutory-…_appeall”for
legality and correctness of an fundamental
and sta,t,t-ry rights, 1l1_t:;”a;j –r we (_3o.__rt _-
……-4.L.i.,_.._….JA ……§~_.IVJ-…L.3…l ‘ A..A..1_.I_. :1-
iufi”””}”‘jtu’l:5u1L:_ _u t_i1″1t’iv:1’ tuxuunc ‘ £6 at’
..1…_. 34…
UKUFUIBU l.
is:
E».
supervisory of the Constitution
of India. by the Hon’ble Supreme
Court at’;pa::.’a Vtlilo’.w3:-.. ,»its:’j11dglment in the case of Durga
—-vw—u’u–u v-uwv-.– , _.- -v-_—. –v–5 — — -uuaw’-v-nuw -u——ya; ——-my
AV’relied*’upontby..lthe_learned Sr. Counsel for the appellant, as:
“‘l*i2eACi-iigh Court, having entertained the writ
petition, which pleadings were also complete,
V ought to have decided the case on merits instead
.. of relegating the parties to a civil suit.”
the Division Bench of this Court has observed in the
‘Q of Karnataka State Road ‘1’rans_port Coqnoration,
“Banana:-Inn; an annllnnu nu Fauna!-melon films’; Wfiunnannui
53$’ “‘3 if KITFII1′ TI II-KC ITKIIK HTKQC JIKUWYIU
C-$\’–“‘-v”
i5
Authority and another reported in AIR 1984 as
under:
l_+)”*’1 ‘v’v’i’i6T'” an eqnaiiy effieaeions _
remedy exists, where, however, *.fun.da1neni
rights are affected; where rukes of ‘justice ;~
are violated; or where there is on the ”
of the authority concerned«.___to confine itsce: i
we bounds of its ieg’;t.imate”vj,mdsdie’uiion”or
there is a failure to exercise ._a jurisdiction vested
in it or where thexeis ofiaw apparent on
the face of the reeo”rd,’–_a
invoke the extraordinary jvuiisdietiopn of this Court
under Afi.’235) witt1out:”refete-nee “any remedy
however efiiear.-ious it “The___e’;tistence of an
alternatives _d__oc_§ not oust the jurisdiction
of the iIigh”,£’oI.i1t .Art’.v,9.-26. The rule ti’I.at
the “does, not.__ entertain a petition under
Art,;226″ ‘ sé»hen3″:,4 there” is an efr”ieaeions_
alternative “eis”‘not’ a rule of law; but is a
principle the ,_have evolved for the guidance
of their ”
4
.if’oiio§vinug_-_ithe aioresaid, judgments, we are of the considered
” learned single Judge was not justified in
disinissing petition of the appellant on the ground
_ did not exhaust the alternative remedy of appeal.
10. Point Nosxg and Having heid that the iearned
V , jjsingle Judge was not justified dismissing the writ petition of
the appellant, we have now to examine whether the learned
c.._!’\r”:.–~..—-
16
Trial Judge was justiiied in dismissing the election petviijoo ‘f
the appellant. As to merits of the
Kdchannabasappa, the learned Senior
appellant, strongly contended that ..*lfillll\Iie*.I.rp_ 9 T. l
. ed :lr’sl+.:e_.
fem, that in mtal, 3,530 ha rs nran’-av’-5i*.V_=-re.
voters at all the 9 polling
ballot papers were polled”‘a_s ll’}l)l:VsV7;’P’1ll to P9 the
forms No.22, were with the
11 1.ri.___ne. sf big, Vtheilttresidm Ofiioer of
r ll after the Miling
and, in l’residing Officer as to the
incident ‘away of any of the ballot papers
issued the at “of the 9 polling stations during the
geese in View of the fact that before
“‘:11″i_f-1;’ ‘*” tn” vetes, the E-{et-.-..-new bi’E.w.
that was put to each ballot box by the
W H ‘T of the respective polling station was intact
tee’ such there was no tampering of any of the ballot
9 feexes, Lhfle. could M no r_xnce._ _n 0 the sfieged or
(‘\.f’*~”””‘-“”
1′!
missing, of any ballot paper from any ballot box as contended
by the Returning Officer.
.6
1 1, _-_ .K.o..}b.9.nnabasappa, learned
wntfiided that even it is assun1ed…that eiaslmissmgllof
four ballot papers, it was for 1 mg J
Officer to ascertain from the respective of the
respective polling stations c-tint the
votes a- to h.;. when those
ballot papers ‘be ‘boxes, but it was
not for the While contending
so, he being positive evidenc-
of P.Ws§zI_ to cf’ the apmllant tl”*t the first
res,oonde:1.Q” after having found that the
.-appei_la:nt 1,285 votes and the nearest rival
AV’r;a:adidate.__i;~eg,vrespondent No.3 had secured 1,282 votes, in
order. declare the 3rd respondent elewed, the
‘ l~r:etu1’x1in_gv”{¢)flicer hops a-…de without taking into account 4
halllogpamrs ‘”otes) which were cast in favour of the
and prepared a false form No.23 showing therein
. V 4 ballot papers were found short/missing from the said
i (“H-1,.-k;_.–I
C—–
18
ballot boxes, the learned Trial Judge comrnitted seriojs erro
L; …_._._n :1. ‘;,-_q;
tuc pcutiil V *
‘1 U4 mi 1 L11 l”””””1 “‘l’.l’fi’i’1 ‘f
considering this important and relevant 4_
determines the real controversy tl1at–has this ‘
12. As against the above
nnelll . ll=..~:a1~n.r gist;
or t. e _ .. …_,,_…t,.,. ..
the learned counsels for respondents urged
that the Writ Petitjonlllll is not
Inaintainable .. remedy of
appeal Under” l but the same is not
a Qilfl ‘1’ an ‘ 1’7 ‘ l”lt’5~”‘*i1v’I”‘I1″n’|.r’rr1a’-Ir’l ntflnr -Imnnunrl I-nr
1-luv-ul-.naI.o\a. -|.|..I.IJ..r ea: ‘1 as 9111.: All-l1ll..aI5l.l\.l\-I \lL\.I\dl Ill’-ilk’-I§\.I’\4l II’,
the learned lsinlglel and valid. They furth er
contended ,V_:’the’.*~appeliant failed to establish that all the
werelflfound from all the ballot boxes taken
‘ 1 |’)QFA\’.,\’I-1-:1-1:1:-.::|Il3*i’.’.~:AV’.1 _ -ruacu-\.r-n-1rI:.n-sf had my-nnuy-I
J.’£¢lJ\l ‘:0 tI.l.l.u. tr
finding that the appellant had secured
” respondent falsely prepared form No.23 showing therein
of 4 ballot papers (votes), only with a view to declare
respondent elected and therefore the learned Trial
A” dludge riytly dismissed the election petition of the appellant,
Wx
In
19
13. The facts that the Appellant and I’espondents’;3to 5
validly contested the election to the post of _
4. n u A …………I… ………4-.14.. gs,
….J…. ears 9…”… LI… :1 ..’ .._a~…” …. _ ‘
IIUCIJL I”LI’.I.V.I.LI IIUIH IVU-7, nuuguuu D I..l.’.-i.l.t.i’l__I.”.r.y’p_ ‘II. I ‘~
r””‘”*
was held on 29.8.2005 and that at of
the said constituency polling wasaheldll >
accordance with the relevant of ‘ and the
b2.I_1__.._ and ..lse t.,.a_. w,_en Lhe t”_m!l;’t.’_~n:;;es e.x_a_n_1_in.ed
Dy the fit iespcndent presence ef an
the agents before
on 3 1.08.2005 the seal
put to each intact are all not disputed.
.’u…her, it is hat ‘n No.’-2
of stations, was duly prepared, as
30 of the Rules, by the Presiding omcer
station immediately after the polling
over. that date of polling mentioning therein the
I-unllnf 1-so-n91-vs rnnnixrnr-I I-nu I-In |Jnna§rI-in-In (‘fl3Hnbt- ‘I-I11:
1.. Harman
all I-0’3»!-Ill I-\.aS.I’\.aI.I.V\o\.l. ll)’ l..I.I\.: J l.\JI1cl»\-I.-I-I ‘L.IlJ~-I\d\-I-I, I-I-l\.v
of ballot papers remained unused and also the
of ballot papers that were issued to the voters.
Exs.P1 to P9 produced by the appellant are the authenticated
fl’)
Photostat copies of form No.22 prepared by the V
Officer of the respective polling stations and theisi
L
…….. ….4- ‘:01
U I. L 1
4 ‘C-mourns!!!’ 1;-3|»-n a-‘nu -I-I-unsung urgdup __ ~ _uu
I U . 4
In-11-‘-cu
1 1: LC 1
€
relied upon by the above respondents ‘l’h¢’: ”
these documents at Exs. P. 1 toP.9_ cstfimish met
ballot papers were issued to Iroters st the 9 polling
ft. e (.2 ns.
I’I , ‘I! .. !\f\
14. r.’x.P1i)_Ais_. “f 1r fin 5\io.Ao
which contains found at the time
of ” hoxes pertaining to the
respective /. -‘reveals that total number of
belle. pa”°,..rS4._4fOund. 9… the.” time .1’ mmztipa m N
the 9
~ ‘together.._W.§s 3,526 resulting in shortage/’missing
def’ which were polled. On comparing the
contents of with contents of Exs.Pl to P9 (Forms No.
22) it this that as mentioned in Ex.P-6, pertaining to
use |..;.;;,…:-11.:
._ 1.!
ru.nIH1-an cl-ct:-I-inf: 0’75} hnlinf nannvn tin’-Ivvn iflaltnrl fn
Puuu ElI.au.II..L\l.u., JIILI uuuuu tiuywsw nu-nu nwuuuu. nu
V’ .___”‘theV’;voters and the some were polled, but, as mentioned in
;.i.4)xtPl0, only 277 ballot papers were found, at the time of
counting, from the ballot box pertaining to the said polling
g-‘–1″”-“‘\—“I
Similarly as mentioned in i:3x.’r’-ii, the form No.2′). _’}eif*._’ai_.I..ng
to Kandanakovi polling station, 462 ballot papers
to the voters and the some were »
1-;;t,i=1o form No.23, only 459 ballot
tine of co’ont.iI-1% from the it
polling station resuiting stionts;-_–ge;illfnis-*ing=.. 3 ‘-..-.-.!1-.:!-.
papers. Thus it is are shown in
l!’.x.P.1O Form the ballot box
ports-.i-.ing t- station and 3 from the
‘Da.’liot polling ._t_.t_ion.
15\ 5c«.to “f the “id 4
ballot papersa”‘it.V_:Vis of the appellant candidate, as
also by him and his witnesses viz.,
evidence, that the first respondent
l'””v’ing found ..h.-‘-.1- thi.. nppellant had
~ 1:285 votes and the nearest contesting candidcte i.e.,
A ihespondent had secured 1,282 votes, with a view to
the third respondent elected, directed by the leaders
” ll of the Congo-:.ss l–po_rty over phone, kept aside 4 votes which
6*-C””‘-“‘\…—–“”‘
25’.
were cast in favour of the appellant and prepared a new form
l\!e.’.J.3 showing t..e. _.in t._r.a. . t…ere were totally 3,52e votesmily
_ 1:-……… i…..”.«.
cs, 0 u 1.11 tut: -‘ s..-l._m,
resulting in shortage,’ missing of 4 ‘v’
pertaining to Kandanakovi polling __station snail
ballot box pertaJnin’ g to l-laluvarthi puumg mun
reduced the number of votes lbyithe L’
“35 ta 1 A
1
1,’! }
2.31 and .hen;_.decls.fr;dVV:the”£§#fl meager ele…t_ed_
by a. majority of ‘one voi:a’.’ h p .
16. None of to adduce any
evidence, oral; the above case of
the appellant saieeiridence of P.Ws. 1 to 5. it
…:…….I..:~.,_4…* V’ ‘
is an 1 e_ta’éd ‘a)3u’~«t.Li’:e’*mg…_p’ ” :1)
the election 3,536 ballot papers were
“given yotes’ at——«the polling stations, at the time of
ballot papers were found from all the
eeivtogether and the said shortage might be for the
~ –« jg w Téfifififl ul
;.L..;* …a…_, …_
lv’ HIE 1
put them into the ballot boxes at the respective
. ‘f stations, which is not the case of the Presiding Officers
the said above polling stationstlxcept this vague statement in
(_,§r-\–‘_______\_?
“23
the said objections no other material is produced
of the respondents, including the firt
Officer, exp.ainiP” a H: h”w, ,
circumstances there could be the l’
4 bauotpapers. i ‘ i
17. Rule 24 of the polling
that inilnediatellyi. of the poll the
Presiding to the contesting
ct-indidateis,’ ‘persons as may be, present at
the polling bo.. is e1np.,=’ and shaii then
toxthe with the number, any,
in the constituency; serial number and name of
number of the box and the date of
the box and seal it with his seal the
; he
I:n,
‘.i’~.t.-.. oontwting -::.=.=.nd.id.=–.-.tes er tuir Meat” ii’ tiry so
at,
the said seal shall be affixed in such a manner
‘V V it is not possible to open it without breaking it. Sub–rule
(4) of Rule 24 further provides that thereafter the sealed ballot
C
,___Vr”~u–\.-4-7
_..__….l_|__ “nu- _A_l _V-‘._’-VIVIVI-V’l’_I\\ –1.’ A_I_ _ A _A_ .fl____A.I_ _._ __.____!.I_ _ A_I._ -4. L9 _
-pulilsmzgil zeecuon –a.;:_l_4;_o1 we act Iuruler provlues max 11 Inc
all
1-‘!
box shall be placed in mu view of the Presiding 0liieer._Vand
the agents of the candidates. Sub-rule Q9) of
nnifirl -. ‘I-I’M-3+ I-l-I IA!-A (\|l’I -I-tutu:-hrii-1 I-Inn I-Q.-..Al
‘f\ ‘LC 2 I 1’ _ IT _ _ W . (I
!Jl.|..lI’1\l\.Ji3 I-I.l.a.L I..I.I\4 Vllllul, U11 l.\.l\.a-\1-I.V.I-I15 Iull-‘M “Jul
forthwith proceed to the polling up’:in’*-the’ l
station and there, make a marl:-on theeha llot:
instrument supplied for the of the
%,I1(i1dl.i.1;t_! or candidates L vete and then
|..1 u. …-..J .1… .-…._’a., :4; 11…’… 1-‘Ii.-‘._..’I.}-‘-…..”:i…
1U. L11 U. ,I.l.l.BI7.I,I.. IL I. W L115 IJ£91.I.l
‘-b
3
3
I….II..4. ……….,,
U L 4- an
(‘F
El’
18. Furthe_r,. of provides that any
person, Who, at takes or attempts
to take polling station; or willfully aids
gf. 9… .- he” be 1’1
-7 –u—-_.– — It-p—–v
amts t._;a
_::.I..t.ed. and
I
0-:
A_I_
the polling station has reason to believe
committing or has committed the act of
_ ppfraudtilentlgg taking away of the ballot paper, such omoer may
‘ ‘LL!-II–‘\J\J\I-l”‘IJ.ll.\-0 u.
iifnahl? nrnnu 1′ A ucrirl nnrunn nr (HI-nnf n nnlinn nffinnr fn
V’ him before such person leaves the polling station and
it _l4_4l’inay also search his person or cause such search to be made
by the police officer. Section 35(3) of the Act fulther provides
(–._<\"'_\—-""'
25
that, if any ballot paper is found on the person of such:
.. s….,….ed, t..e same shall m kept in safe cus”to<'.y'.' ~'-*–.'.h"e,
Presiding Unicer. ' ' '
19. Thus, it is quite clear
Rule 24 and Section 35 of the Act–~that” as e
the contesting candidates at ” by the
.. …… I.-.”.:.. -19 _.-|u._._ L- _|_-
1’1UBl.\.l.l.l,Jg {}$”s.2’c’;1 bfifuuzi tn “T .Ll1Ll_.1l.’£l.|.?u’C out 0.]. ml ti t ‘ 1
ballot box which’_:isv__ to be g the ballot
papers(votes) by_en1ptyt jtsnau be locked and
sealed with as-pipléxesiclingoorricer and those of the
gt —_-1 1-; 91% in ft…
It is clear from the said provisions that
‘receiving the ballot paper for the purpose of
the ballot paper into the ballot box after
5-»
E-«-
(‘I
andidate
as oiee and after folding it, and ifrauciuientiy takes
or attempts to take away the said ballot paper, such an
it of the voter would certainly be witnessed by the Presiding
Olficer and also the polling agents of the respective contesting
F’f\”.’./”
Jig.’
£0
candidates and other persons and, in that event the
Officer sh…” ha.e 1:. proceed to arrest such voter;”and’.reooiier-
from his posses*’*n s””-h ballot page it is to z1.’.’tcp
that it is not the case of any of the i:espo1ideizts’.ti’1at~ at ‘
1-laluvarthi polling station or
occurred such an i11(:ide1it of with him
“‘|-.
C
C
“er any hallo. paper i_;.3.1L.__ L. la;n” ._for the purpose of
voting. Further, adrr1i’tex’i’i”‘»,. to t..e-se
two polling it the ballot papers
that were put into the respective
ballot boii;es’~at stations.- Therefore, the
vag”e ‘”‘”l%’:aticnV’ by the fi_rst. respondent in his
..- wiittenfiobjections eic(“:””1 ‘”tiu”i’i {Whi”h are adopted
‘by the. respondent) that the said 4 votes which were
alleged’ to found short/missing at the time of
have been taken away by the voters instead of
pfitti:-kg th-“- into the halls. was a. 1:……ir re_pect_ive polling
” ..,_”V”sta1é:ions is based on no facts besides being “ntrary ‘” the
V admitted and undisputed facts and as such the same cannot
be accepted.
27
20. As to the allegged shortag, _r xnissing oi’
.._…_.I:._J_L
…_!L,t papers, the apmliant uiuulu Le, * t_§sides”–.
necessary averments in his electio_n….peflfie1″1} _
clear terms at para 6 of his it this
examination-in–chief as P.W. tiled’
I0
F
from out of 3,530 votes {:9 oftt._.d;–»..i..vslid,v-.,.e» it’
all 1,235 votes, the ti””‘d 1,282 votes and
the other two ueandida.tes:’ it and 615 votes
respectively fae.t_IespondenL instead of
declaring him (appease; candidate, declared
third $,as. ..:…her stated mm-sin ti–t
at ti”-‘t time o1″iicer who was subordinate to first
iiiside…the chambers of the first respondent
{vitI1.:.4″ wherein the voters had cast their votes in
e»…__._favoi1r:”of ‘jafqoellant and that on seeing the sense he
questio__ed t:,.e ….id ..f!’im as to he’ ‘””s taking the baiiot
F”-?_*rsi””‘jto the chambers of’ the first respondent but he told
aappellant that he was so taking them for getting’ the
V _eenfl1mafion as to the validity of the said votes. He has also
stated at the same paragraph that while hirnsel_f F.,l..1’1f.’! ot..er
r–5.
T—.._n–\._r-‘-5.,
,-
“50
All
agents of the parties were in the chambers of
respondent, the latter received a telephone call
Congress (1) party should be elected bydaotaki
accordingly first respondent r
showing therein that 3,525 votes rmijcliin the ballot
boxes and removed. the _4’l–Vvotes” were cast in his
favour and the’ t1″rrcm””
requesting the .first the votes in term’ s
of the votes hut the first respondent
did not cdnsider.liis’j’;1equest’.. ‘ 5
21. =.’.)n.._4 ” pa-;i.’~’a_.$!. ” t_h_ cross-examination of
11′.’
*’P,W.1fi-ilppeliant) ‘nIade__o:1 behau of the r””‘”‘*1dents it could
seen –v.A_vti’1e*4.lfiehove evidence of the appellant in his
has remained totally unchallenged
«was though the learned counsel for the first
.__respondent has ..ugge-sted to the eppellarit that the first
” …_”res1jéondent foiiowed aii the pmedures and me rules ‘.’.’hile
V jdeclaring the third respondent elected, he has not made any
further suggestion as to the said evidence in exa:mination~in-
(‘g§’\’\——-\
chief. The evidence of PM s. 2 to 5 reveals that it fully
and it
fl-‘\_J\.L1
t._ . mess-
alse on the same line as in respect__o£ “‘
neither the first respondent againstV;”Wh:)n1iV
allegations were made by the ajapleilantiner L’
I \JI2ltl\.I.IJ \.1J.JuIJ -I-ital’ I-l\4I In ,’!I C
=-==mnr-em-+-= en » ee “fitness.–.;.’.x”fe§r d is-vina :. A .-= id.
evidence of i3.Ws. 1 to evidence.
Therefore we have’ have not
discharged their” theirueontentions in their
objections. **** .
,’ _ menu. ‘ u
.rL..i …..egi it *em..”_I.i e-. e tn . i.
d f _neriy
.—-..—- — 1..- _r _-
a preciflijflge. the ;.*9sitivex’ eiiidenee of the appellant and his
‘sritriesses i;e., Paws. 1’ in the background of the fact that
seem not choose to adduce any evidence of
men»-ee-e geetieeig the evidence of 1-‘.Ws. 1 to 5, the Trial
Judge has her findings based on some admissions
iiiade ‘T by z the appellant and the said witnesses in their
as to seine facts not relevant to the case of the
and dismissed the eieetion petition. 1 L ‘s
.-.a.
50
admitted during his cross-examination the suggesfionslput to
turn.
him that hi agents wih1es___g Lhe __..- ._
_ — 1..
– S J !
l”l’CSl(l
was – —‘”- “fi’ns; er
‘t th puluug 5
Officer, one officer appointed by l
and his agent were sitting i1:-rside the-._
persons belonging to the contesting Vtéandidates
we.
polling, the to all the
agents of the is empty; he has
no objection, _Aéts_:”to;,:_ to P-10; before
commencementAV.Voi’V of the votes himself, his
and other wmneemed
–o.fiieers’ the seals that were put to the ballot
Lwere after another in their presence and the
in the presence of himself and persons; i
thehvtotal of the votes secured by the contesting
….z…. …..a
1 J utcu
tn” votes ‘yrs 3,5-“6
…_’\’§l?.asV’coI1’ect. He has also admitted in his cross-examination
, that the entire process of election was conducted in
accordance with law. However, he has denied the suggestion
4
sir
” Q > the 4- . it
3}
that the total number of votes (ballot papers) found
the ballot boxes were only 3,526. PWs.2 to _
’23. Since it is not the case___ of
P0111118 was not held in K irelevant
provisions of the Act the required
nrmednree W re no…_oll.o’.-.=’….–veit.,.;er_h:,’ ‘the”rreeidir” 0ffie*-va
,.-..- … …..
a’ the polling by the Returning
Officer before of the votes.
Therefore the of-‘PWs- 1 to 5 in their cross-
examination the main a_llegatlo__e _f t.._e
‘ ‘V ‘ ‘ no ……………..|__. – -_.-._ ..
..,,.,.u..u..p,_.=_+:$*-.?.!’.IGl’ifl that Vl’.;”i” 1″ 1 uu. ut – Rctmufin
prepared one Form 23 mentioning therein
the ‘fhallot papers found from all ballot boxes
“nae having found that the appellant had
c votes more the votes secured. W the 3”
‘ .mS}_7mI1uou’u’., tu”if. R tin 13 Uuluzr, 1.11 uer to
— that the 3’6 respondent was elected by majority of one
ifvote, took out four votes that were cast in favour of the
\
F_&
it L insane. d
32
appellant and then falsely prepared another h’o1nf1:\l\lo.23
showing shortage of four votes (ballot papers)
boxes. As already observed by us snprat;..,1Lli.7 ‘ armature
V .– —4-vrvn–1’—-now!
has also deposed in his evidence as dtolthese it
the evidence of PWs.2 to 5 evidence of ‘
the appellant and the “to 5 as to_
these allegations made againet. ,”_rst.,pre_,-_d1”.!;iL..;.ei1t has renr,I..r-.iined
“”um””” “1:’::’1sllefi;—A?:i/;tn. ~’4,,’,’.;:1is Judge
committed serious ftliis positive evidence on
V . . ‘ . ,’ film’ r:”L
, AV – u,,v,__,__,_-_.,…o
record and recording her’ the mac: points that
,-.r–..r—
arose for consideration holding that the appellant-
petitioneg’ f’_.il_x_i ;.>__,.sta…iish ..is ..a-…. by e.*’.*.’ering explanation
, ex’ rd Vljnissing of four ballot papers. Further’, the
observationsef tlfielleamed trial Judge in her impugned order
that v’–g§a’s”.V_no impediment for the appellant-petitioner to
hips objections soonafter the declaration of election;
.113 .9, he is n
“o:nm’record, inasmuch as, E’x.P.i5 is the representation
submitted by the appellant before the first respondent
.;——…F\—-~——-7
33
requesting him to verily the alleged shortage of
nu-name: n-nrl k_’,v D 1 ‘I -la 1- n ant-Inrannan-nf 1-rhn=rnI’ ,V’I-ha” .. 15:11′
Raw’ 3, C’-II’-I -I-I-(‘OI O J- 1 J’-I ‘II-I’-5 ‘J-I’-\«I\JL ‘WEI-I-I.I.\JlI-J’: y’\J”_5~ II:
respondent to the appellant inmwres rise..’ffm”fEx.i?,”l’5.
representation. Therefore, this 3 the it
Judge is not sustainable.
2.4. Further, Rule 37(1) of that after
Returning Officer the result of the
election in number of votes
with the 23 and then declare the
it Tgffi votes as duly elected.
9 -4′ +I….. +…4….I
1 Lu I. I311
” ofirotes Nos.22 and 23 while preparing Form
by Oflicer before declaring the results of
mean a mere perusal of the number of
the l-5ei:u11nn'””””g Oficer finds any di
V’ …_44.A’.he..’§11nies in Form No.22 prepared by the Presiding Officers
at the respective polling station and the entries in form
No.23 prepared by himself before eommencing the counting of
c—._(‘-‘K-/’KI!
34
‘fi'”J
the votes, he has to verify the discrepancv and a__e.» -.t..e
cause for such discrepancy and also bring it toihe’
the contesting candidates or their agents ‘present V’ ‘
and time of counting. in the instant no’
placed on record by the l<etu11ii.Iu:1'g..Qifieer__asp did' ~ it
after noticing the shortag.3__ or ._._.ur . if
it were to be :';r"e ti"t noticed shortage
of four ballot pertaining to
l-laluvarthi the ballot box
pertaining station and he entered the
same in mm to tb.e–.._-.n__.wle..ge of all the canteen
ca-ndid"es inciiicling-__ tl1e'«…appeiiant and their respective
:_agents,._':g_j'§'he shonld' have made all the efforts, before
of the votes, to ascertain as to how
conldv 'shortage of the said ballot papers when
polling stations were properly entered in the
it Form 22 (i.e., Exs.P-1 to Ex.P-9) and when there
no instance of tampering with any of the ballot boxes or
the instance of any voter at any of the polling smne__s ta…-.g
A *.9;!'t_r=;r.
35
away with him / her the ballot paper issued to him [her for
casting vote. This being so, in the backmoundplénfp “Afsct
the. the Ltd respondent was declared elected by a jtnejefity of…
single vote as agaiirt tue a”pe.i=g..’1t-}’;s:ttitio.-;e–_ “alle’ged7__
missing of four ballot papers e.S_sumeti_sLii ‘
” r§ .. ‘.-.-goI-n’1i1u-I£-
épiin. V1 gu
25. As rightly submitted’
the learned Sr. if the four
fiat Mpers ‘.t.r…., the duty of the
lat responderit _ ..nd out, before
es to how and under wi-“t
circumsmnc.-s be missing of the said ballot
papers the to the said two polling
_ s'”tt'{ns.t’~ l+”erther, it was his duty to explain before the
learneddtrielztfiudge by entering into the witness …..x as t- t_h__
FO-
of the said ballot papers. Since the is
respondentfidid not do so, the evidence of PWs.1 to 5 that
found that 1,285 votes were secured by the
appellant as egalns. 1,232 votes secured by the 3″!
ll respondent the first respondent — R’turr'”” Oifleer @l£ .1..-
four ballot papers wherein the votes were cast in favour o the
’13:
av
appellant and then falsely prepared another P’OI’iIl”»pl’lO.23
showing therein shortage of four votes (ballot to
reduce the nurmeer of vote mmw. by the.
1,285 to 1,281 so that he could the’: it
elected by majority of a single. vote,v_i”whic.h~
unchallenged, ought to have Judge.
‘l’.herei’ore, we of the— that the learned
o”ghtv to hove -i1’eld- that iapmllantemtitioner
has made o1n;..{h¢ ‘to the grant of reliefs
sought forh__i_n_ we answer both th –
point Nos.2~. iefflrinntlve’.
26. Be,.”.re e;l-‘;i:. our judgment we are constrained to
Tahsildar – the returning officer, being a
dealt with the matter during counting of
the while announcing the results of the election
mrti. jmting in the proceedings
.31: also as .0 his wndu..- i.
LWIAI
.___”‘before the iearned ma: ..i”dg’ when 1 u s aiiegau”””ons
it xrere made’ against him by the appellant-petitioner; From the
records of the case it is quiet apparent that while counting
W
3:?
the votes and declaxfi the results of the election he
undue favouritism towards the 3ffL1esponder1tT’_5g
Such conduct of such a responsible
obligation to act fairly and suchiajsituxnlion as
.3′
.h -14 s_A.af,:puhfi_. r it.
_._.I_ __
1.-
IIHIT.
at.
th’ d V
soul of democratiesysteltfi Republic lndia.
27. deprecate such conduct of
such offioer lite it “fithe same would not be
hoI._..r.l
4–it-1.-u.–u—- – – ….x-.’. -4-. V-poo-r -ru— u.-nun
renent .l_’__l1g mg _ we-,1-i fh ngg
be inve_stigated and the erring ofiicers shouici be
in accordance with law. Hence we direct the
to Government of Karnataka, Revenue
conduct thorough enquiry in the matter and
tdimota t. -i*4=r’ifl’*fin”r 0” M’ ‘ to take such d.sci.plinsry
as is permissible in law against all the concerned
oificers and to submit to this Court his compliance
~ freport as expeditiously as possible, preferably within six
months from the date of receipt of this judent. l+’urther_. we
c’-“””‘””‘–“‘
I-
38
direct the State Election Commission and the
P’
‘euictary “‘ Governinent oi ..i=-.r.n.at..=i…a, l<!..–,..hu._. ijepament,
that Sri I-i.M.Revanasiddappa, who, FE
Davanagere Taluka, was the Returnirigi' first '
respondent) shall not be entirnsted
..ithe- 1.- he eapaeity of the ibfliioerfor in any
similar capacity in **"'iti'i='ii'eriie?diéate'i-effect. 011 %count
of fraudulent act" of ' in cieciann' 'pg
unsuccessful; respondent herein, as duly
elected _2**'i.' — APMC, the Appellant,
msidos oiiiiisasiotntory rim of being declared
elected, nos' oonn–~=i4ii i~=-~ *- '"'pI'GaCh the son… and
" m_atter;' process respondent No.3, being
V.Vii1eiigible:'v–eandidete, has been allowed to functions as the
Vi$ll"M(3 for more than two years. Therefore the
sii..ii be sa_dled with the costs to the
for having deprived of i""~ valuaul" s'"tu*'*ry r''''1t
. for having incurned unnecessary costs on the litigations.
28. in View of our foregoing discussion, we are of the
considered View that this appeal deserves to be allowed and
M
4*-*’-‘
V’ to this declaration, fOi”‘1’.1″i”‘i’|’.1
3′?
the impugned order dated 26.9.2007 in
w.P.No.58o2.,’L’.e {A.”l’Jl{.., by ..he .%e.. smgle -_…1iit.1′.g.;._~ *Ll1_i».s
Court dismissing the writ petition deserves; to» fie? –
Accordingly» We allow this writ we ‘
impugned order of the learned’ >
we allow the said writ petition, asitle the– order
II?) f flllli
.l..J-_..I L. _
U. L U £0-£-QUUU V. I.-_llI-£V’_ L\a’Iil-li_ __ V
as
“”ssed”~ ti” ‘***-=*’ Prl. (311.11! -|I..I…g..
Ill
(dr.Dn.) Davangere; disntiseing 2005
and allow the. petition with costs
of Rs. 2:s,ooo;;l be paid by the said Sri
who thenwas the Tahsildar
of Davanagere.~”Returr'”g Officer and we ..m,L§,r
” election….ot’« the 3″! respondent to the post of
VhL)i_reetorA of:_’&!¥¥¢V’:respondeI1t — APMC void and further declare
thattlie figment herein has. been duly elected to the said
Jae ‘concerned _mr_=ere of 2114 respondent — APMC shall
..l”‘
29. Registry shall send a copy of this judgment to the
Principal Secretary to Government of Karnataka, Revenue
Department, Bangalore, and also to the State Election
‘
1!
40
1!
. n I I -.._ …u- Inna, _ ,1′
commission, naxtsmvwa
directions issued at para No.27 0″ t.’r1isj”d cut.