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2012 DIGILAW 362 (KAR)

Onkaramma, Nijalingappa v. Election officer

2012-04-16

ASHOK B.HINCHIGERI

body2012
ORDER ASHOK B. HINCHIGERI, J.—The petitioner has called into question the orders, dated 6.8.2011 (Annexure-E) allowing I.A. No. 1 for amendment and the order, dated 6.8.2011 (Annexure-F) passed on I.A. Nos. 3 and 4 calling for summoning the ballot papers of the elections held to Kalledevarapura Grama Panchayath and for recounting them. 2. The facts of the case in brief are that the petitioner and the respondent No. 3 sought the election from Bennehalli constituency of Kalledevarapura Grama Panchayath, Jagalur Taluk. The elections took place on 8.5.2010. Both the petitioner and the respondent No. 3 belong to the category of General Woman [G(W)]. The petitioner was declared elected in the said election. Alleging the irregularities and unfairness in the counting of the ballot papers, the respondent No. 3 filed Election Petition No. 3/2010 in the Court of the Civil Judge (Jr. Dn.) JMFC, Jagalur. In the said proceedings, the respondent No. 3 filed I.A. No. l for correcting certain errors, which have crept into the description of the respondent No. 2. Instead of correctly showing the name of Grama Panchayath as ‘Kalledevarapura’, it was shown as ‘Hiremallanahole’. The Returning Officer’s address was shown as ‘Office of the Tahasildar, Jagalur instead of correctly showing it as Taluk Panchayath. Jagalur’. The Civil Judge, by his order, dated 6.8.2011 allowed the said I.A. 3. The respondent No. 3 filed I.A. No. 3 for summoning the ballot papers and I.A. No. 4 for recounting them. The same were allowed by the Civil Judge, by his common orders, dated 6.8.2011. These orders are called into question in these petitions by the elected member of the said local body. 4. Sri M.Rajashekar, the learned counsel for the petitioner submits that the election petition has to be filed within 30 days from the date of the declaration of the result of the returned candidate. He submits that the date of declaration of the result of the election was on 17.5.2010 and that the election petition was filed on 15.6.2010. Any application for the amendment can be filed only within one month from 17.5.2010. In the instant case, the application for amendment is filed on 3.8.2010, beyond the period of limitation prescribed for filing the election petition. 5. Any application for the amendment can be filed only within one month from 17.5.2010. In the instant case, the application for amendment is filed on 3.8.2010, beyond the period of limitation prescribed for filing the election petition. 5. Sri Rajashekar submits that the provisions of CPC are not applicable for considering the election petition filed under Section 15 of the Karnataka Panchayat Raj Act, 1993; the election petition cannot be permitted to be amended as if it is a plaint filed under Order 7, Rule 1 of the CPC. He sought to draw support from this Court’s decision. In the case of Khadarsab vs. Munsab and others, reported in ILR 1997 Kar 3402. He read out the Head Note, which is as follows: “Karnataka Panchayat Raj Act, 1993 (Karnataka Act No. 14 of 1993) Section 15, Clause 2A —While challenging the election of the petitioner respondent Nos. 1 and 2 did not implead all the contesting candidates in the election petition. Subsequently they filed an application for impleading them and it was allowed by the Munsiff. This order was challenged on two grounds —Firstly provisions of Civil Procedure Code are not applicable to the Election Petitions and secondly on the ground of limitation—Held the order of the Munsiff allowing the impleading application is illegal and cannot be sustained.” 6. Nextly, the learned counsel brought to my notice this Court’s decision in the case of Amir Ali vs. Ahmed Patel and others, reported in ILR 2003 Kar 2437, wherein it is held that the amendment of the cause-title of the election petition is not permissible, if the amendment application itself is filed beyond the period of limitation prescribed for instituting the election petition. In the said case, there was no reference to the Returning Officer of Kadadoor constituency in the cause title or in the averments. The Tahsildar of Chittapur Taluk was erroneously shown as the Returning Officer. The Civil Judge’s order permitting the election petitioner to make the Returning Officer of Kadadoor constituency as a party for the first time was set aside by this Court. 7. On the order on I.A. Nos. 3 and 4, the learned counsel for the petitioner submits that such an order ought not to have been passed in the pre-trial stage. The Civil Judge’s order permitting the election petitioner to make the Returning Officer of Kadadoor constituency as a party for the first time was set aside by this Court. 7. On the order on I.A. Nos. 3 and 4, the learned counsel for the petitioner submits that such an order ought not to have been passed in the pre-trial stage. When no case is made out for the summoning of the ballot papers, the Civil Judge ought not to have mechanically accepted I. A. Nos. 3 and 4 and called for the summoning of the ballot papers and for recounting them. 8. Sri Mahesh, the learned counsel for the respondent No. 3 submits that the facts of the cases of Khadarsab and Amir Ali (supra) and the facts of these cases are different. He submits that the name of the Grama Panchayath is correctly shown in paragraph No. 2 of the election petition. In the case of Amir Ali (supra), the averments in the petition were also unclear. Drawing support from the Apex Court’s judgment in the case of Gore Lal Shakya vs. Maharaj Singh Yadav and others, reported in (1995) Supp (3) SCC 407, Sri Mahesh submits that in the said reported case, the Apex Court has held that the invalidating of the election petition by the High Court on the ground of a mistake in the array of parties and that too when it was by a typographical error, is making a mountain out of a mole hill. 9. The learned counsel also sought to draw support from the Apex Court’s judgment in the case of Vadivelu vs. Sundaram and others, reported in (2000) 8 SCC 355 , wherein it is held that if a Court is satisfied of the truthfulness of the allegations, it can order the recount of the votes. 10. Sri N. B. Vishwanath, the learned Additional Government Advocate appearing for the respondent Nos. 1 and 2 would support the impugned orders and pray for the dismissal of these petitions. 11. The submissions of the learned counsel have received my thoughtful consideration. As far as the order on I.A. No. l allowing the amendment application is concerned, it has to be noticed at the outset that no objections whatsoever came to be filed by the petitioner to the third respondent’s I.A. for amendment. 11. The submissions of the learned counsel have received my thoughtful consideration. As far as the order on I.A. No. l allowing the amendment application is concerned, it has to be noticed at the outset that no objections whatsoever came to be filed by the petitioner to the third respondent’s I.A. for amendment. My perusal of the objections filed by the petitioner to the main petition reveals that no specific objections were taken regarding the misdescription of the respondent No. 2. The Civil Judge cannot be held to be at fault for considering the point, which was not raised before him. 12. The Grama Panchayath in question, namely, Kalledevarapura is mentioned in the memorandum of the election petition. It clearly finds a place in the averments contained in paragraph No. 2 of the election petition. There is reference to the second respondent Returning Officer in the memorandum of the election petition. Only his office address is shown as the ‘Office of the Tahasildar’, though it should have been shown as ‘The office of the Taluk Panchayath’. The two errors appear to be typographical errors. The respondent No. 3 herein (election petitioner) does not appear to be knowing English. The vakalath filed on her behalf shows that she has signed in Kannada. 13. In the case of Gore Lal Shakya (supra) the Apex Court did not approve of the High Court’s order invalidating the election petition on the ground of a mistake in the array of the parties. 14. Considering all these aspects of the matter, I am not inclined to set aside the Civil Judge’s order, dated 6.8.2011 passed on I.A. No. l allowing the amendment application, which is only for correcting the typographical errors. 15. In the result, I dismiss W. P. No. 43313/2011. 16. I am now left with the examination of the order, dated 6.8.2011 passed by the Civil Judge on I.A. Nos. 3 and 4. Rule 78 of the Karnataka Panchayat Raj (Conduct of Election) Rules, 1993 provide for the production of the ballot papers before the competent Court, if it so orders. 17. The said provision empowers the Civil Judge to call for the ballot papers. However, the question is not over the power of the Civil Judge to call for the ballot papers. The question is whether sufficient grounds are made out for their summoning. 17. The said provision empowers the Civil Judge to call for the ballot papers. However, the question is not over the power of the Civil Judge to call for the ballot papers. The question is whether sufficient grounds are made out for their summoning. The ballot papers cannot be summoned on the ipse dixit of the election petitioner. Further, they cannot be summoned holding that no prejudice would be caused to any party, if they are summoned. Such an approach is not permissible in the trial of the election petitions. 18. Unless the parties lead cogent evidence making out a case for summoning of the ballot papers, they cannot be routinely, rotely and mechanically summoned. On the placing of the relevant oral and documentary evidence on its record, the Civil Judge has to examine the pleadings and evidence and has to satisfy himself that a party has made a case for summoning the ballot papers. Such a situation or stage has not yet arisen in this case. The trial has not yet begun. The parties have only filed their pleadings. As the respondent No. 3 is yet to show that there was improper acceptance of invalid votes and improper rejection of valid votes, the very filing of the I.A. Nos. 3 and 4 cannot but be held to be premature. The Civil Judge’s order allowing them is quashed and the said I. As. are dismissed as premature. 19. In the result, W.P. Nos. 3399/2012 and 9897/2012 are allowed. 20. Liberty is reserved to the respondent No. 3 to make the I.As. for summoning the ballot papers and for recounting them at appropriate stage, if she is so advised. If such I.As. are filed at appropriate stage, the Civil Judge shall consider the same in accordance with and uninfluenced by his earlier orders. 21. No order as to costs.