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1975 DIGILAW 22 (KAR)

GUNJAHALLI NAGAPPA v. STATE OF KARNATAKA

1975-02-06

CHANDRASHEKARAIAH, VENKATACHALAIAH

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( 1 ) THE above petition is the third in a series of petitions relating to the election to Gangavathi Town Municipal Council. The facts of the case are briefly these: The term of the Municipal Councillors of the Town Municipal Council, gangavathi, expired in the year 1972. Instead of holding an election for the purpose of reconstituting the Municipal Council, the State govt appointed an Administrator to manage the affairs of the Municipality. ( 2 ) THE Govt. also constituted an Advisory Council, in order to assist the Administrator. The appointment of the Administrator and the constitution of the Advisory Council were questioned by one of the residents of gangavathi in writ petition 2405 of 1973 before this Court. At the hearing of the above writ petition, an undertaking was given on behalf of the State govt that steps would be taken to reconstitute the Municipal Council by holding the election within a reasonable time. In terms of the above undertaking, the above writ petition was disposed of on 6-2-1974. On 25-2-1974, the Asst Commr of Koppal Sub-Divn (respondent 4) was appointed as the returning Officer for the purpose of holding the election to the Municipal council. Before he could issue the calendar of events for the election, the notification which had been issued earlier by the State Govt under S. 13 of the Karnataka Municipalities Act 1964 (hereinafter referred to as the 'act'), was rescinded by the State Govt. Consequently, the calendar of events could not be issued. Immediately thereafter, writ petition 2715 of 1974 was filed by the same person who was the petitioner in writ petition 2005 of 1973, for the issue of a direction to the State Govt to take immediate steps to hold the election. The above writ petition was disposed of on 7-3-1974 by this Court directing the State Govt to hold the elections within four months. On an application filed in the above petition subsequent to its disposal, this Court has extended the time to hold the election till 8th March 1975. After the above writ petition was disposed of by this Court the State govt issued a Notification under S. 13 of the Act, on 3-12-1974, determining the territorial divisions for the purpose of holding of the election. On 7-12-74, the Retuming Officer issued the calendar of events for the election. After the above writ petition was disposed of by this Court the State govt issued a Notification under S. 13 of the Act, on 3-12-1974, determining the territorial divisions for the purpose of holding of the election. On 7-12-74, the Retuming Officer issued the calendar of events for the election. In the meanwhile, the Tahsildar of Gangavathi who is the designated authority under S. 14 (2) of the Act, split up the electoral roll which was maintained for the Karnataka State Assembly Election in respect of Gangavathi Town, into parts, each part consisting of voters in a division as stated in the notification under S. 13 of the Act. In accordance with the calendar of events, nomination papers were filed on behalf of some persons including the petitioners and they were scrutinised by the Returning Officer. Thereafter, the list of contesting candidates was published on 21-12-1974. According to the calendar of events, the poll had to take place on 10-1-1975. It would appear that after the designated authority under S. 14 (2) of the Act had authoriticated the voters list, certain persons claiming to be voters at the Town Municipal election made representation to the Deputy Comnar, raichur, in the month of Dec, 1974, that the splitting up of the electoral roll of the Assembly constituency relating to Gangavathi into voters' lists of the divisions of that town was not in accordance with law. On the basis of the above representation and the recommendation made by the local authorities, the State Govt cancelled the calendar of events published by the peturning Officer and directed him to issue a fresh calendar of events for the purpose of the election. It also directed him to get the voters' list split up by the designated authority in accordance with law for the purpose of the election to be held on the basis of the fresh calendar of events. ( 3 ) THE petitioners who are some of the contesting candidates have questioned in this writ petition the validity of the above Govt Order. They have prayed for the quashing of the Govt Order d. 30th Dec 1974 referred to above and for the issue of a writ in the nature of mandamus to the authorities concerned to hold the election of Councilors to the Town Municipal council, Gangavathi. They have prayed for the quashing of the Govt Order d. 30th Dec 1974 referred to above and for the issue of a writ in the nature of mandamus to the authorities concerned to hold the election of Councilors to the Town Municipal council, Gangavathi. on the basis of the list of contesting candidates published on 21-12-1974, by fixing a convenient date for the election. Inter alia, it is also urged in the course of the writ petition that the Returning Officer should hold the election on the basis of the list authenticated by the designated authority under S. 14 (2) of the Act, before the Govt Order was issued and that the authorities should be prohibited from making any alterations in or additions to it. ( 4 ) THE above petition is contested by the State Govt and the Returning officer. Some of the candidates whose names were included in the list of contesting candidates for election, have been impleaded on their application as respondents 6 to 26. When the above petition came up for hearing before Jagannatha Shetty, J. , he referred the same to a Division Bench for disposal. That is how the above petition is before us. In this petition, two important questions arise for consideration. They are: (1) Whether the State Govt has power to cancel the calendar of events issued by the Returning Officer and to diret him to issue fresh calender of events; and (2) Whether the State Govt has the power to issue a direction to the returning Officer to get the voters' list split up in accordance with law by the designated authority. ( 5 ) THE impugned Govt Order purports to have been issued by the Stat, govt in exercise of the powers conferred on it by Rule 75 of the Karnataka municipalities (Election of Councillors) Rules, 1965 (hereinafter referred to as the 'rules'), which reads as follows : " 75. Power of Superintendnce and control.-Notwithstanding anything contained in these rules, the State Govt and subject to the general cr sprcita1 orders of the Govt, the Commr, shall have the power" of superintendence, direction and control of the conduct of elections under these rules, and may make such orders as it or he deems fit for ensuring that the elections are held in accordance with the provisions of the Act. " ( 6 ) IT is seen from the Rule extracted above that the State Govt is empowered by it to issue directions for the proper conduct of th elections under the Rules. The Rule does not confer any power on the State Govt to cancel a calendar of events validly issued by the Returning Officer. Rule 28 of the Rules specifically deals with the circumstances in which the election proceedings can be adjourned or postponed. It authorises the presiding Officer of a polling station to adjourn the poll to another date when the election proceedings are interrupted or obstructed by any riot or open violence, or if at an election it is not possible to take the poll at any polling station on account of any natural calamity, or any other sufficien cause. Sub-rule (2) of Rule 28 requires the Returning Officer to report the circumstances under which a poll is adjourned, to the Govt and to fix a day for the purpose of poll with the previous approval of the Government. Rule 24 of the Rules authorises the Returning Officer to countermand the poll on the death of a candidate before the poll. Apart from Rules 24 and 28, there is no other provision in the Rules which authorises any person or authority to postpone the polling date, much less, is there any provision to cancel a calendar of events validly issued by the competent authority. The power of superintendence, direction and control conferred on the State Govt by Rule 75 cannot in our opinion, be construed as including the power to cancel a calendar of events validly issued by the Returning Officer or to issue direction to adjourn the date of poll. The impugned order, to the extent it purports to cancel the calendar of events issued by the Returning Officer on 7-12-1974, has therefore, bo be set aside. ( 7 ) IN the last paragraph of the impugned order, the State Govt has directed the returning Officer to issue a fresh calendar of events after the voters' list is split up by the designated authority in accordance with the Rules. When once it is held that the State Govt has no power to cancel the calendar of events issued by the competent authority the question of directing the competent authority to issue a fresh calendar of events, would not arise. When once it is held that the State Govt has no power to cancel the calendar of events issued by the competent authority the question of directing the competent authority to issue a fresh calendar of events, would not arise. That direction issued by the State Govt necessarily has to be set aside. Sri K. A. Swamy, learned Counsel for the petitioners, is also right in contending that the direction issued by the State Govt in the impugned order to the Returning Officer to get the voters' list split up by the designated authority is not warranted by the Rules. Naither the Act nor the rules require the Returning Officer to get the voters' split up by the designated authority. He has only to hold election in accordance with the list authenticated by the designated authority under S. 14 (2) of the Act. The state Govt therefore had no authority to direct the Returning Officer to perform an act which is not one of his duties or functions under the Act or rules. Hence, the above direction also has to be set aside. ( 8 ) IT is represented that after the impugned Govt Order was passed, the returning Officer has returned the election deposits made by some of the candidates, whose names are found in the list of contesting candidates. This does not present any difficulty because the Returning Officer can call upon such candidates who have taken back the deposits to re-deposit the same. In the course of the arguments, Sri K. A. Swamy, learned Counsel for the petitioners, contended that it was not permissible to any authority to, make any alteration in, or addition to the list of voters authopticated by the designated authority under S. 14 (2) of the Act read with Rule 3 of the rules after the last date prescribed for receipt of nominations. Sri K. S. Puttaswamy. learned Govt Advocate and Sri Murlidhar Rao. learned advocate for some of the respondents contended that it was open to the authorities concerned to rectify any mistakes as to splitting of the voters list under S. 14 (2) of the Art read with Rule 3 of the Rules. On the above question we express no opinion as it is unnecessary to do so for the purpose of this case. ( 9 ) IN the result we quash the impugned Govt Order d/. On the above question we express no opinion as it is unnecessary to do so for the purpose of this case. ( 9 ) IN the result we quash the impugned Govt Order d/. 30-12-1974 and direct the Returning Officer to hold the election in accordance with law from the stage at which it was interrupted by the impugned Govt Order, after fixing the convenient dates for the remaining events so that the election may be completed before 8th of March 1975 as directed by this court in writ petition 2715 of 1974. He is further directed to call upon the contesting candidates who have withdrawn the amounts deposited by them to re-deposit such amounts before the date of the poll. Let copies of this order be sent to the Returning Officer and the Govt advocate, within five days from today. --- *** --- .