C Prem Kumar vs Puttaswamy & Others

Prasanna B. Varale, CJ

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.

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 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.

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 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.

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.

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.

Heard Sri. D.R.Ravishankar, learned Senior counsel appearing for Sri. Showri, H.R, learned advocate 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.

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 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).

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.

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 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.

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.

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 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.

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.

The allegations of respondent-authorities deliberately preventing the respondent No.1/ petitioner from filing nomination papers within time, postponement 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.

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 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 be caused to the appellant if the respondent No.1/petitioner is allowed to contest the election cannot be countenanced.

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.