H. M. NAGARAJU v. STATE OF KARNATAKA — 1998 DIGILAW 234 (KAR)

CHANDRASHEKARAIAH, J. ( 1 ) THE petitioner who is the elected member of the Duggatti Grama panchayath has filed an election petition in the Court of Munsiff at chamarajnagar in Election Petition No. 1 of 1996 challenging the election of the 3rd respondent to the post of Adhyaksha on the ground that the election of the 3rd respondent is illegal and void as it is contrary to the rules provided for election to the post of Adhyaksha and Upadhyak-sha. The learned Munsiff by his order dated 31st May, 1996, dismissed the election petition upholding the election of the 3rd respondent. This order is called in question by the petitioner in this writ petition. ( 2 ) THE learned Counsel for the 3rd respondent raised a preliminary objection that the Writ Petition is not maintainable under Articles 226 and 227 of the Constitution of India on the ground that the order of the munsiff is revisable under Section 115 of the CPC. In support of this contention, he relied on the decision of this Court in H. V. Venkatesh v election Offtcer-cum-Tahsildar, Mulbagal Taluk, Kolar District and others. This Court in the above decision has held that the Munsiff who has been conferred with a power to decide the election dispute could be equated with the Munsiff Court and therefore, the order passed by the munsiff is revisable by this Court under Section 115, CPC. No doubt the order passed by the Munsiff is revisable under Section 115 of the CPC, but at the same time, it cannot be said that the order of the Munsiff cannot be challenged by way of a writ petition under Articles 226 and 227 of the Constitution of India. The power conferred on this Court under Articles 226 and 227 of the Constitution of India cannot be taken away by the statute except by way of an amendment to the Constitution of India. Therefore, the contention of the learned Counsel for the 3rd respondent that the writ is not maintainable has no substance and accordingly, this preliminary objection raised by the Counsel for the 3rd respondent is rejected. ( 3 ) THE facts of this case are, the 2nd respondent is a person appointed as an Election Officer to hold the election to the post of Adhyaksha and upadhyaksha of the Grama Panchayath. ( 3 ) THE facts of this case are, the 2nd respondent is a person appointed as an Election Officer to hold the election to the post of Adhyaksha and upadhyaksha of the Grama Panchayath. He issued the notice calling for the meeting of the Grama Panchayath for the purpose of election to the post of Adhyaksha of the Grama Panchayath. As per this notice, any member of the Grama Panchayath can file nomination on or before 1. 00 p. m. on 28-12-1995 offering himself as a candidate to the post of adhyaksha. Respondent 3 filed his nomination at 12. 15 p. m. on 28-12-1995. As nobody raised objection to the acceptance of the nomination filed by respondent 3, the election was held as scheduled. In the election, petitioner and 3rd respondent secured six votes each. In view of the equality of votes, the Returning Officer has drawn the lot and declared the 3rd respondent as elected. This election of the 3rd respondent was challenged by the petitioner by way of an election petition as stated above. ( 4 ) THE learned Munsiff, though he recorded the finding that the 3rd respondent has filed his nomination at 12. 15 p. m. on 28-12-1995 and it is contrary to the Rule 3-A of the relevant rules, proceeded to dismiss the election petition on the ground that the nomination filed by the 3rd respondent was not objected to by the petitioner. This finding has been assailed by the petitioner on the following grounds. 4-A. The learned Counsel for the petitioner submitted that under rule 3-A of the Karnataka Panchayath Raj (Election of Adhyaksha and upadhyaksha of Grama Panchayath) Rules, 1995, the nomination is to be filed 2 hours before the time fixed for the meeting. But in the case on hand, the time fixed for the election was 1. 00 p. m. whereas the 3rd respondent admittedly filed the nomination at 12. 15 p. m. i. e. , beyond the time specified under Rule 3-A of the Rules. Therefore, it is submitted that the acceptance of the nomination of the 3rd respondent is improper and is contrary to the rules. In reply to the said contention, learned counsel for the 3rd respondent submitted that in the calendar of events issued by the Returning Officer, the time specified for filing the nomination is before 1. Therefore, it is submitted that the acceptance of the nomination of the 3rd respondent is improper and is contrary to the rules. In reply to the said contention, learned counsel for the 3rd respondent submitted that in the calendar of events issued by the Returning Officer, the time specified for filing the nomination is before 1. 00 p. m. on 28-5-19951 and on the basis of the said calendar of events, the respondent has rightly filed the nomination before 1. 00 p. m. Therefore, it is submitted that there is no illegality or irregularity in the matter of filing the nomination as it has been filed within the time specified by the calendar of events. ( 5 ) ON these rival contentions, the points that arise for consideration are: (1) Is the Munsiff right in dismissing the election petition even though he records the finding that the nomination paper filed by the 3rd respondent is contrary to the Rule 5 of the rules? (2) Is the election valid if it is held on the basis of the calendar of events which is not in conformity with the rules?admittedly, the 3rd respondent has filed his nomination at 12. 15 p. m. on 28-12-1995. The time specified as per the calendar of events, to file nomination is on or before 1. 00 p. m. on 28-12-1995. Rule 3-A of the rules reads as follows. "3-A. Filing of nominations. Not less than two hours before the time fixed for the meeting for the election of Adhyaksha or Upadhyaksha, any member may nominate any other member for being elected as Adhyaksha or Upadhyaksha as the case may be, by delivering to the Assistant commissioner a nomination paper in Form I appended to these rules". As per the above said rule, the nomination to the post of Adhyaksha is to be filed 2 hours before the time fixed for the meeting called for the purpose of holding election. Admittedly, the time fixed for the election (or meeting) is 1. 00 p. m. The nomination filed by the 3rd respondent is at 12. 15 p. m. that means it is beyond the time as provided under Rule 3-A of the Rules. Therefore, the acceptance of nomination paper of the 3rd respondent is improper by the Election Officer. Admittedly, the time fixed for the election (or meeting) is 1. 00 p. m. The nomination filed by the 3rd respondent is at 12. 15 p. m. that means it is beyond the time as provided under Rule 3-A of the Rules. Therefore, the acceptance of nomination paper of the 3rd respondent is improper by the Election Officer. The Supreme Court in case of Harjit Singh Mann v S. Umrao Singh and Others, has held that the delivery of nomination paper after the time specified cannot be said to comply with the provision of Section 33, sub-section (2) of Section 36 of the Representation of People Act. Rule 3-A of the rules is similar to the above said Section. Therefore, acceptance of nomination paper filed by the 3rd respondent after the time provided under Rule 5 of the Rules is improper and therefore, the order of the Munsiff declaring the election of the 3rd respondent as returned candidate is liable to be set aside. ( 6 ) THE Election Officer ought to have issued the calendar of events in accordance with the rules. The calendar of events issued by the Election officer states that the person who is intending to contest the election may file his nomination before 1. 00 p. m. on 28-12-1995. This in my opinion is contrary to the rules. If the calendar of events itself is defective and has misled the candidates regarding time for filing nomination, the whole election process will become invalid. Therefore, the impugned election proceeded on the basis of the defective calendar of events is illegal and bad in law. In the said view of the matter, the election of the 3rd respondent is to be set aside and a direction is issued to the Election officer to hold fresh election to the post of Adhyaksha. In the result, I pass the following order. The writ petition is allowed. (1) The order of the Munsiff dated 31st May, 1996, passed in Election petition No. 1 of 1996 is quashed. (2) The election of the 3rd respondent to the post of Adhyaksha of the duggatti Grama Panchayath is declared as invalid. (3) The 2nd respondent-Election Officer is directed to hold a fresh election in accordance with the provisions of the Act and the Rules as expeditiously as possible to the post of Adhyaksha. --- *** --- .