Pidashetti Murigendra Mallappa vs Karadi Shrishail Rudraya and Others

Under the provisions of the Karnataka Municipalities Act of 1964 (hereinafter referred to as ''the Act'') and the Karnataka Election of Councillors Rules of 1977 (hereinafter referred to as ''the Rules''), the Tahsildar, Jamakhandi, who had been appointed as the Returning Officer for holding elections to the Jamakhandi Town Municipal Council (hereinafter referred to as ''the T.M.C''), on 23-4-1979 issued the calendar of events. Before the time and date appointed for receipt of nominations, the petitioner, respondent Nos. 1 to 9 filed their nominations from Ward No. III of the said T.M.C. which were accepted as valid. On 27-5-1979 poll was held to ward No. III and the other wards of the TMC. At the counting of votes on 28-5-1979 while the petitioner secured 678 votes, respondent Nos. 1 and 7 secured 679 and 938 votes respectively and therefore the Returning Officer has declared them as duly elected to the two general seats and respondent No. 9 as duly elected to the reserved seat. Evidently after the completion of the counting of votes, the petitioner moved the Returning Officer to recount the votes, between him and respondent No. 1 by stating as under:

"To

The Returning Officer, Jamkhandi.

Sub: Recounting of votes of Ward No. III.

Sir,

Kindly arrange to recount the votes of Division No. III since there is only one vote difference in between II and IIIrd.

Thanking you sir,

Date 28th May 1979 Yours faithfully,

(Sd.) M.M. Pidshetti, Candidate of Division III"

The said application was rejected by the Returning Officer by stating as under:

"ORDER

The candidate M.M. Pidshetti has given an application to re-count the votes of Division No. III since there is only one vote difference. But under Rule 82 of Election Manual, the Returning Officer may in his discretion re-count the votes either once or more than once in any case in which he is not satisfied as to the accuracy of any previous count. As in this case there are no objections about the accuracy of previous count. The applicant has requested on the ground there is only one different; further nothing in this sub-rule shall make it obligatory to re-count the votes more than once. Hence it is rejected.

(Sd.) xxx 6-30 p.m. 28-5

Tahsildar, Jamkhandi and Returning Officer,

Election of Councillors to the Town Municipal

Council, Jamkhandi."

Again the petitioner made another application for recount of votes stating the following reasons:

"Counters of polling station No. 11 were counting the votes who (swastik marks) were touched above and below the lines of symbols.

Counter was not alert at that time of counting and he was changing the serial numbers and this thing was brought to his notice thrice time.

When we raised our doubts for symbols i.e. incorrect way of noting and he did not take any notice for the same.

Our polling agent was not present upto Ser. No. 9 counting of votes serial number.

Second elected member is leading simple by one vote.

I request your honour in connection with the above reasons recounting may please be arranged."

On the same day, the Returning Officer rejected the said application by stating as under:

"ORDER

The application received from M.M. Pidashetti is after thought i.e. after taking decision on the first application he has given. Once decision taken on the previous application. Hence it is filed.

(Sd.) x x 7-15 p.m. 28-5

Tahsildar, Jamkhandi and Returning Officer,

Election of Councillors to the Town Municipal Council, Jamkhandi."

On 5-6-1979, the petitioner has filed these writ petitions under Art 226 of the Constitution challenging the orders of the Returning Officer and has sought for a mandamus to him to recount the votes for the III Division. He has challenged the validity of the proviso to sub-rule (1) of Rule 61 of the Rules.

Apart from re asserting the allegations made by him in his second application seeking for re-count (Ext. A), the petitioner has asserted that certain persons who are not eligible to vote have voted, that the three ''tendered votes'' should also have been counted and the action of the Returning Officer not to count them was illegal. He has also alleged various other irregularities in the scrutiny and counting of votes by the Returning Officer. But, at the hearing of these writ petitions, Sri G.B. Raikar, learned counsel for the petitioner, did not urge any of those contentions and addressed his arguments on the bass that all the votes cast in favour of the petitioner and others were valid votes. He also did not address any arguments as to why the proviso to sub-rule (1) of Rule 61 of the Rules is invalid. I will therefore proceed to examine the case of the petitioner as presented by Shri Raikar at the hearing of the case.

Shri Raikar contended that having regard to the difference of only one vote between the petitioner and respondent No. 1, the Returning Officer was under a legal obligation to recount the votes and on his failure to exercise that power, it is a fit case in which this Court should direct the Returning Officer to recount the votes. He maintained that the relief of recount sought by the petitioner cannot be adjudicated in an Election Petition by the Election Tribunal and therefore the only remedy availlable to him for that relief is under Art. 226 of the Constitution and therefore it is a fit case in which this Court should exercise its extraordinary jurisdiction in favour of the petitioner.

Shri W.K. Joshi, learned counsel for respondent No. 1, refuted the contentions of Shri Raikar and urged that an Election Tribunal under the Act has the power to order recount and with the completion of the elections, it is not open to the petitioner to bypass the remedy of an Election Petition available under the Act.

On 28-5-1979, the Returning Officer has declared the results of the elections to the T.M.C. The entire process of elections to the TMC. has been completed on 31-5-1979 and the petitioner has approached this Court only after the elections have been completed to the TMC. S. 21 of the Act expressly provides for the remedy of an Election Petition before an Election Tribunal constituted under the Act. The Supreme Court and this Court have consistently taken the view that when once the election is over, the only proper and effective remedy for challenging the election is by means of an Election Petition. Shri Raiker did not rightly dispute this legal position. But he contended that under the Act, it is not open to the Tribunal to order the recount that has been refused by the Returning Officer.

S. 21 of the Act provides that an election held under the Act can be called in question by an Election Petition before an Election Tribunal by a candidate or by a voter. Sec. 22 of the Act provides the reliefs that can be sought by an election petitioner before an Election Tribunal. Under this section, it is open to an election petitioner to seek for a declaration that the election of all or any of the returned candidates is void; vide clause (a) of sub-section (1). In the same petition, it is also open to the petitioner to seek for a further declaration that he himself or any other candidate has been duly elected, vide clause (b) of sub-section (1). Section 23 of the Act enumerates the grounds on which an election can be declared void. S. 25 of the Act specifies the powers of an Election Tribunal in an Election Petition presented before it. Under S. 25 of the Act, it is open to an Election Tribunal (i) to declare that the election of all or any of the returned candidates is void and (ii) to declare that the petitioner or any other candidate has been duly elected; vide clauses (b) and (c) of sub-section (1). Clause (a) of subsection (2) of S. 25 of the Act in express terras empowers the Tribunal to declare the election petitioner if he has received the majority of the valid votes as duly elected. S. 26 of the Act provides for the procedure to be followed where two candidates evidently after recount secure equality of votes. On a combined reading of all these provisions, as it should be, I am clearly of the view that an Election Tribunal constituted under the Act has undoubtedly the power to order the recount of votes and the attempt made by Shri Raikar reading S. 23 in isolation, contrary to all the canons of interpretation of statutes, is not sound.

The provisions of the Act for adjudication of election disputes are almost analogous to the provisions made for adjudication of election disputes under the Representation of the People Act, 1951 (Central Act No. 43 of 1951). In interpreting the provisions of the latter Act, the Courts in India have consistently taken the view that the Election Tribunals have the power to order for recount. Even before the enactment of the Representation of the People Act, 1951, Courts in this Country had consistently taken the view in interpreting analogous or similar provisions that the Election Tribunal has the power to order for recount. I do not see any good reason as to why that power recognised by the Courts in this Country under the Representation of the People Act. 1951 and the earlier enactments should be denied to an Election Tribunal constituted under the Act. In this view also I find it difficult to accept the contention of Shri Raikar and I therefore reject the same.

An Election Tribunal cannot mechanically order for recount of votes. The legal principles on which Election Tribunals can order for scrutiny and recount of votes is concluded by the ruling of the Supreme Court in Jitendra Bahadur Singh v. Krishna Behari, AIR. 1970 SC. 276 and the Full Bench ruling of our High Court in T.K. Abdul Sattar v. The Court of Munsiff, Kolar, (1979) 1 Kar. L.J. 240 FB.

Earlier, I have pointed out that elections to the T.M.C. including Division No. III have been completed and therefore the only proper and effective remedy for challenging the elections is by means of an Election Petition under S. 21 of the Act. Even assuming that the period of limitation for filing an Election Petition is over, that cannot be a ground for exercising the extraordinary jurisdiction conferred on this Court under Art. 226 of the Constitution. For all these reasons, I hold that the rule issued in these cases is liable to be discharged

Rule discharged.

In the circumstances of the cases, I direct the parties to bear their own costs.

While issuing rule nisi, I directed respondent No. 10 not to publish the results to Ward No. III in the Karnataka Gazette for a period of four weeks from that date. With the dismissal of these writ petitions, there is no impediment for respondent No. 10 to publish the results of Ward No. III. In order to enable him to take further steps in that behalf, I direct the office to communicate a copy of this order to respondent No. 10 within 3 days from this date.