Siddappa Yellappa Kundargi vs The Election Officer and Another

Bopanna, J.—The only point for consideration in this appeal is whether the learned single Judge was right in declining to exercise his jurisdiction under Article 226 of the Constitution of India in an election dispute when the entire process of election had been completed and there was an alternative remedy by way of an election petition.

The undisputed facts giving rise to this appeal are: The appellant, who was the petitioner before the learned single Judge, and the second respondent herein, had filed their nominations for being elected to a vacant seat in the Panchayat of Akkatangerahal. That seat had been reserved for a member of the scheduled caste/scheduled tribe. Their nomination papers which were in Form No'' 2-A prescribed under Rule 8 of the Rules framed under the Karnataka Village Panchayats and Local Boards Act, .1959 (in short, ''the Act'') contained the necessary declaration that they belonged to the scheduled tribe, namely, Nayak community. At the time of scrutiny of the nomination papers by the Election Officer (the first respondent in this appeal), the second respondent produced a certificate of caste issued in his favour by the Block Development Officer as also the transfer certificate issued by the Head Master of the school wherein the appellant had studied, describing him as ''Hindu, Berad''. On the strength of this transfer certificate, the second respondent raised an objection before the Election Officer that the appellant was not a member of the scheduled caste/scheduled tribe and therefore was not eligible to contest for the reserved seat. This objection was upheld by the Election Officer, with the result, the appellant''s nomination paper was rejected and the second respondent being the only candidate in the field for the reserved seat, was declared as elected unopposed.

Before the learned single Judge, it was conceded by the learned counsel for the second respondent that the appellant and the second respondent were members of the same caste, but he, however maintained that the appellant''s remedy was by an election petition u/s 13 of the Act since the entire process of election had been completed. Further, he pleaded that Art. 226(3) of the Constitution was a bar for this court to entertain an election dispute when he had an. alternative remedy. The first of these contentions found favour with the learned single Judge who held that the dispute being a post-election dispute, as held by the Supreme Court in Nanhoo Mal and Others Vs. Hira Mal and Others, , the only remedy for challenging the election was by means of an election petition.

The learned counsel for the second respondent reiterated the above contention in this appeal.

The pronouncement of the Supreme Court in Nanhoo Mal''s case as to the jurisdiction under Art. 226 of the Constitution to decide the validity of an election after it is over, is not an unqualified pronouncement, as can be seen from the following passage in the judgment of, the Supreme Court:

"Whether there can be any extraordinary circumstances in which the High Courts could exercise their power

Article 226 in-- relation to elections it is not now necessary Amendment to the Constitution.

For these reasons, we allow this appeal, reverse the order of the learned single Judge, allow the writ petition and quash the order of the Election -Officer rejecting the nomination paper of the appellant and the order dated 1-5-1979, declaring the second respondent as having been elected to the said reserved seat. We further direct the Election Officer to accept the nomination paper of the appellant and hold a fresh election for the aforesaid seat after issuing a fresh calendar in respect of events subsequent to the acceptance of the nomination papers: No costs.

Appeal allowed.