SIDDAIAH v. RETURNING OFFICER, BANGALORE — 1987 DIGILAW 10 (KAR)

P. A. KULKARNI, J. ( 1 ) THIS is a revision by the petitioner against the order dated 10-12-1985 passed by the 17th Addl. City Civil Judge, Bangalore in Election Petition No. 495/1983 holding that the petition had abated on account of the death or respondent-2, and as a consequence thereof dismissing the election petition. ( 2 ) IT is undisputed that the present revision petitioner and respondent-2 Krishna and others had contested from Division No. 31 in the election held on 7-8-1983. It is also undisputed that the deceased Krishna (R-2) was the successful candidate. ( 3 ) THE revision petitioner contested the election of the successful candidate (deceased Krishna R-2) on the ground that respondent-1, the Returning Officer committed serious irregularities in the counting and he prayed for setting aside the election of respondent-2 and also for a declaration that he was the duly elected candidate. ( 4 ) RESPONDENTS 1 and 2 resisted the petition. ( 5 ) AFTER the petitioner led his evidence and has closed his evidence, respondent-1 led his evidence. When the matter was posted for the cross-examination of respondent-1, a memo was filed stating that the returned candidate Krishan (R-2) has died on 30-9-1985 but notwithstanding the same, the court can grant the relief prayed for in the election petition. It was resisted by respondent-1. ( 6 ) THE trial court held that the petition had abated on account of the death of respondent-2 and consequently dismissed the petition. Hence the revision by the revision petitioner. ( 7 ) SRI. T. N. Ragupathy, learned counsel for the petitioner relied on a decision of the Supreme Court in Mallappa Basappa v. Basavaraj Ayyappa, AIR 1958 SC 698 in support of his contention that the death of respondent-2 in the Election Petition did not result in the abatement of the Election Petition and that the Election Petition should continue for the benefit of the Constituency which is interested in the result of the Election Petition. It reads as follows :"an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and the court possesses no common law power. An election petition is not a matter in which the only persons interested candidates who strove against each other at the elections. It reads as follows :"an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and the court possesses no common law power. An election petition is not a matter in which the only persons interested candidates who strove against each other at the elections. The public also are substantially interested in it and this is not merely is the sense that an election has news-value. An election is an essential part of the democratic process. An election petition is not a suit between two persons but is a proceeding in which the constituency itself is the principal party interested. It is this interest of the constituency as a whole which invests the proceedings before the Election Tribunal with a characteristics of their own and differentiates them from ordinary civil proceedings. Once this process has been set in motion by the petitioner, he has released certain forces which even he himself could not be able to recall and he would be bound to pursue the petition to its logical end. The provisions of Sections 108 to 110 and 112 to 117 show that the election petition once presented continues for the benefit of the whole constituency and cannot come to an end merely by the withdrawal thereof by the petitioner or even by his death or by the death or withdrawal of opposition by the respondent but is liable to be continued by any person who might have been a petitioner. " ( 8 ) THE Supreme Court laid down the said proposition with reference to Sections 108 to 110 and 112 to 117 of the Representation of the People Act. Section 116 of the R. P. Act reads as follows :"116. " ( 8 ) THE Supreme Court laid down the said proposition with reference to Sections 108 to 110 and 112 to 117 of the Representation of the People Act. Section 116 of the R. P. Act reads as follows :"116. Abatement or substitution on death of respondent.- If before the conclusion of the trial of an election petition, the sole respondent dies or gives notice that he does not intend to oppose the petition or any of the respondents dies or gives such notice and there is no other respondent who is opposing the petition, the High Court shall cause notice of such event to be published in the official gazette and thereupon any person who might have been a petitioner may, within fourteen days of such publication, apply to be substituted in place of such respondent to oppose the petition and shall be entitled to continue the proceedings upon such terms as the High Court may think fit. " ( 9 ) BEFORE discussing the effect of Sec. 116 of the Representation of the People Act, the Supreme Court has laid down in para 10 on page 701 as :-"it is necessary at the outset, therefore, to understand the nature and scope of an Election Petition. As has been observed by us in the judgement just delivered in Kamaraja Nadar v. Kunju Thevar, Civil Appeals Nos. 763 and 764 of 1957 and Civil Appeal No. 48 of 1958 (A) : "an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the court possesses no common law power. ". . "an election petition is not a matter in which the only persons interested are candidates who strove against each other at the elections. The public also are substantially interested in it and this is not merely in the sense that an election has news value. An election is an essential part of the democratic process. ". "an election petition is not a suit between two persons, but is a proceeding in which the constituency itself is the principal party interested. The public also are substantially interested in it and this is not merely in the sense that an election has news value. An election is an essential part of the democratic process. ". "an election petition is not a suit between two persons, but is a proceeding in which the constituency itself is the principal party interested. " ( 10 ) THE Supreme court has stated in para 11 as :-"the whole constituency is thus alive to the fact that the result of the election duly declared is questioned on various grounds permitted by law with the likely result that the election of all or any of the returned candidates may be declared void and the petitioner or any other candidate may be declared duly elected, in place and stead of the returned candidate. The constituency may have an interest in either maintaining the status quo or if perchance the election of the returned candidate is set aside, in seeing that some other deserving candidate is declared elected in his place and stead and not necessarily the petitioner or any other candidate sponsored by him whose election could be challenged on any of the grounds mentioned in Sec. 100 (1 ). It is this interest of the constituency as a whole which invests the proceedings before the Election Tribunals with a characteristic of their own and differentiates them from ordinary civil proceedings. Once this process has been set in motion by the petitioner he has released certain forces which even he himself would not be able to recall and he would be bound to pursue the petition to its logical end. It may be that he may not be able to substantiate his claim for a declaration that the election of all or any of the returned candidates is void. In that event he would of course fail and no question would arise of his obtaining a further declaration that he himself or any other candidate has been duly elected. All the grounds urged in the Election Petition against the returned candidates under Sec. 100 (1) of the Act would fail and the election would stand. The voters would thus be vindicated. All the grounds urged in the Election Petition against the returned candidates under Sec. 100 (1) of the Act would fail and the election would stand. The voters would thus be vindicated. If the petitioner, however, succeeds in establishing his first claim and the election of the returned candidate is declared void, the question would necessarily arise when such a further declaration has been claimed by him whether he himself or any other candidate should be declared duty elected. In that event, the occasion would arise for considering whether the petitioner himself or any other candidate, sponsored by him should be declared duly elected. If the election of the petitioner or such other candidate could have been challenged on any of the grounds mentioned in Sec. 100 (1) such election would certainly have been void if he had been a returned candidate and the petition had been presented calling in question his election," ( 11 ) FURTHER whenever the petitioner asks for a declaration that he or any other person should be declared as having been duly elected, recrimination statement would be filed. ( 12 ) IN para 12, the Supreme Court has stated as :-"this is the purpose of a recrimination and the right to file a recrimination accrues to the returned candidate or any other party to the petition the moment an election petition is presented containing a claim for a further declaration that the petitioner himself or any other candidate has been duly elected. The proviso to Sec. 97 (1) merely enacts conditions for the exercise of such right of recrimination and states that the returned candidate or such other party is not to be entitled to give such evidence unless he has, within fourteen days from the date of commencement of the trial, given notice to the Tribunal of his intention to do so and has also given the security and the further security referred to in Secs. 117 and 118 respectively. "the Supreme Court has further stated in para 13 as :-"if once such a right has accrued to the returned candidate or any other party to the petition, can that right be affected by the petitioner seeking to withdraw or abandon that part of his claim viz. 117 and 118 respectively. "the Supreme Court has further stated in para 13 as :-"if once such a right has accrued to the returned candidate or any other party to the petition, can that right be affected by the petitioner seeking to withdraw or abandon that part of his claim viz. , a claim for a further declaration that he himself or any other candidate has been duly elected ?" ( 13 ) IT is no doubt true that a provision similar to Sec. 116 of the Representation of the People Act is not to be found in the Karnataka Municipal Corporation Act or the Rules framed thereunder. But as already stated above, the principles have been laid down by the Supreme Court as to why an election petition would not stand abated or cannot be withdrawn. The simple absence of a provision similar to Sec. 116, in the Karnataka Municipal Corporation Act, does not take away the wholesome principles laid down by the Supreme Court in the said decision. ( 14 ) THE court below has relied on Sec. 2 (3) of the Karnataka Municipal Corporation Act which. defines a casual vacancy and a casual election. It reads as :-"'casual vacancy' means a vacancy occurring otherwise than by efflux of time in the office of a councillor or in any other elective office and 'casual election' means an election held to fill a casual vacancy;"in the ordinary course if a councillor dies, the death would create a casual vacancy and for such a casual vacancy a casual election can be held. But, in this case, the election petition has been filed and stay of holding of further elections has been granted by this Court. Therefore the effect of casual vacancy which might have occurred by the death of respondent-2 Krishna, gets postponed by the stay granted by this Court. Therefore the question of holding of a casual election so long as the stay granted by this Court operates, does not arise at all. ( 15 ) RULE 81 of the Karnataka Municipal Corporations (Election) Rules, 1979, reads as :-"the provisions for the election of Councillors, Mayor, Deputy Mayor, Members of the Standing Committees and Chairman of the Standing Committees shall mutatis mutandis be applicable for the purpose of filling up casual vacancies of the Councillors, Mayor, Deputy Mayor, Members of the Standing Committees and Chairman of the Standing Committees. "merely because Sec. 2 (3) defines what is a casual vacancy and what is a casual election and merely because Rule 81 prescribes the procedure for filling up such vacancy, it does not follow or mean that whenever a vacancy arises, the Karnataka Municipal Corporations Act contemplates only a casual election. Rule 81 only prescribes as to how a casual vacancy should be filled up. Therefore the court below, in my opinion, by relying on Sec. 2 (3) read with Rule 81, committed an error in holding that there was no other alternative but to hold an election in the case of a casual vacancy. ( 16 ) LET us assume for a moment that no stay is granted in such cases and a casual election as contemplated by Sec. 2 (3) and Rule 81 is held and a particular person is returned as a councillor. If the election petition is allowed and if the petitioner or any one else is declared as a successful candidate, there would be two councillors for the same Constituency, and it would result in chaotic condition and almost drive the parties to fight out their place in the Corporation. Therefore in order to avoid such an unpleasant situation, the Court must put such a construction so as to avoid the possible conflict. Therefore even if stay is not granted, it is in the public interest that the casual election must be postponed till the result of the election petition. Whatever it is, stay has been granted in this case. Once the stay is granted, the question of occurrence of a casual vacancy for the purpose of holding an election, gets postponed. Therefore the trial court committed an error in holding that the election petition had abated. ( 17 ) FURTHER the election has been questioned by the petitioner on the ground that respondent-1 the Returning Officer has committed serious irregularities and illegalities in the counting of votes and that on a recounting, according to the petitioner, he would be getting more valid votes than the ones secured by the deceased respondent-2. Therefore the cause of action for the election petition is more or less against respondent-1 the Returning Officer. Therefore the cause of action even in spite of the death of respondent-2 Krishna survives. Once it survives, the petition will not get abated at all. Therefore the cause of action for the election petition is more or less against respondent-1 the Returning Officer. Therefore the cause of action even in spite of the death of respondent-2 Krishna survives. Once it survives, the petition will not get abated at all. ( 18 ) IT was brought to my notice also that corrupt practices had alleged against respondent-2. It is a matter of evidence in order to have pure and fair election, it is absolutely necessary that the Court dealing with the election petitions, should go into that question. Therefore even viewed from broader interest of the Constituency, the Court should broader reluctant to hold that the election petition has abated. ( 19 ) THE learned counsel Shri Chithappa submitted that as respondent-2 is no more, it would be very difficult to substantiate these allegations. Ultimately these allegations may fail for want of evidence. But it does not mean that the Court should hasten to hold that the election petition abated. ( 20 ) THUS, in the result, the order impugned in the revision is set aside. The revision is allowed. The election petition is restored to file and the trial court should proceed with the election. The learned counsel Shri Raghupathy for the revision petitioner and Shri Chithappa for Shivaprakash for respondents-1 and 18 are directed to keep their clients or their local advocates present in the court below on 27-2-1987. The court below should issue court notices to the other parties or their local advocates and after service of court notice on them, it should proceed with the matter. ( 21 ) NO costs in this petition. Revision allowed. --- *** --- .