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2013 DIGILAW 375 (KAR)

Govindegowda v. Deputy Commissioner, Mysore

2013-03-21

B.V.NAGARATHNA, D.H.WAGHELA

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Judgment :- Nagarathna, J. 1. This writ appeal assails the order dated 20/02/2013, passed in W.P.No.2588/2013. By the said order, the learned Single Judge has dismissed the writ petition but has reserved liberty to the petitioner to file an Election Petition within 15 days from the date of receipt of a copy of the said order. 2. It is the case of the petitioner that respondent Nos.6 to 18 are the members of Meluru Grama Panchayath and that a notice for meeting was issued fixing the date of 21/12/2012 at 12.00 noon for holding the Election to the Post of "Chairperson" or "Adhyaksha". The nominations for the said post from eligible candidates had to be filed two hours prior to the Election time. The petitioner had filed his nomination at 9.40 a.m. The respondent No.6 had filed the nomination at 10.10 a.m., which was after the prescribed time of two hours prior to the meeting. However, the Returning Officer had accepted the nomination of Respondent No.6, which is contrary to Rule 5 of the Karnataka Panchayath Raj (Grama Panchayat Adhyaksha and Upadhyaksha Election) Rules, 1995 [hereinafter, referred to as the "Rules"]. Therefore, the petitioner had contended that the Returning Officer ought to have rejected the nomination of the Respondent No.6, in which event, the petitioner would have been the lone contestant and was entitled to be declared elected unopposed as the Adhyaksha. As the nomination of the Respondent No.6 had been accepted and the meeting had been adjourned, the petitioner had filed Election Petition No.1/2012 before the Court at Mysore, seeking a declaration that he is the successful candidate for the post of Adhyaksha to the Meluru Grama Panchayath and also to declare the nomination of Respondent No.6, as null and void. No interim order had been granted in the said Election Petition. While assailing the same, the petitioner had also sought a declaration in the writ petition that he was the unopposed candidate for the post of Adhyaksha. The writ petition was opposed by Respondent No.6. 3. Learned Single Judge found that there were disputed questions of fact, which could not be resolved by mere affidavits with regard to the precise time when the nomination of the Respondent No.6 was accepted. The writ petition was opposed by Respondent No.6. 3. Learned Single Judge found that there were disputed questions of fact, which could not be resolved by mere affidavits with regard to the precise time when the nomination of the Respondent No.6 was accepted. Therefore, a declaration could not be given in the Writ Petition and that a properly constituted Election Petition ought to be filed assailing the alleged improper acceptance of nomination of Respondent No.6 and also the result of the Election as the Respondent No.6 had succeeded in the Election. Hence, learned Single Judge had permitted the petitioner to file a properly constituted Election Petition within 15 days from the date of receipt of a copy of his order, which has been assailed in this writ appeal. 4. We have heard learned counsel for the parties. 5. It was contended on behalf of the appellant that normally, in order to assail the Election of a successful candidate, an Election Petition before the appropriate forum is the proper remedy. In the instant case, having regard to the facts, what has been sought is a declaration that the acceptance of the nomination of the Respondent No.6 is illegal and in violation of the Rules. In order to seek such a declaration, it would not be necessary to contest the matter by way of an Election Petition, as what is assailed is an act even prior to the holding of the poll. Elaborating that contention, it was argued that, in terms of the Rules, the nomination had to be filed before the prescribed time of two hours prior to the election. In other words, nominations of the candidates have to be filed two hours prior to the time fixed for the poll. According to the appellant, it has been admitted that the nomination of the Respondent No.6 was filed within two hours from the time fixed for poll and therefore, the nomination was ex facie invalid. There was no other candidate to oppose the petitioner. Therefore, the petitioner ought to have been declared as the successful candidate. The Returning Officer, by accepting the nomination of the Respondent No.6 illegally, decided to hold a poll. Hence, the Election of Respondent No.6 has to be declared null and void and the petitioner must be declared to have been elected unopposed. 6. Therefore, the petitioner ought to have been declared as the successful candidate. The Returning Officer, by accepting the nomination of the Respondent No.6 illegally, decided to hold a poll. Hence, the Election of Respondent No.6 has to be declared null and void and the petitioner must be declared to have been elected unopposed. 6. The aforesaid contention is countered by the respondents' counsel by stating that any dispute relating to the validity of the Election of Adhyaksha and Upadhyaksha of a Grama Panchayath, can be assailed by filing an Election Petition before the Civil Judge (Jr.Dn.), having jurisdiction over the Panchayath area, which is a separate Forum to decide such matters. In fact, the petitioner has filed an Election Petition after the holding of the poll. It was not admitted by respondent No.6 that his nomination was filed within two hours prior to the meeting held for the election. But, the petitioner has not pursued his Election Petition, as when an interim order was not granted therein, he filed a writ petition, which was not maintainable. Drawing our attention to the Rules, it was contended that when an alternative remedy is available under the statute, the writ jurisdiction of this Court cannot be invoked. It was therefore, submitted that there is no merit in this appeal. 7. Under the Karnataka Panchayath Raj Act, 1993 [hereinafter, referred to as the "Act"], Election to the office of Adhyaksha and Upadhyaksha of a Grama Panchayath is as per Section 44. Section 44 of the Act deals with the procedure for Election of the Adhyaksha and Upadhyaksha. Sub-section (2) of Section 45 states that any dispute relating to the validity of the Election of Adhayaksha and Upadhyaksha of a Grama Panchayath shall be decided by the prescribed Judicial Officer, having jurisdiction over the Panchayath area or the major portion of the Panchayath Area. 8. Under the Rules of 1995, Rule 14 provides for an Election Petition in respect of a dispute relating to the Election of Adhyaksha and Upadhyaksha, which could be filed before the Munsiff Court, i.e., Civil Judge (Jr.Dn.), within fifteen days from the date of the Election, seeking a declaration that the Election of the successful candidate is invalid. 9. 8. Under the Rules of 1995, Rule 14 provides for an Election Petition in respect of a dispute relating to the Election of Adhyaksha and Upadhyaksha, which could be filed before the Munsiff Court, i.e., Civil Judge (Jr.Dn.), within fifteen days from the date of the Election, seeking a declaration that the Election of the successful candidate is invalid. 9. Therefore, a full-fledged alternative statutory machinery is provided for assailing an Election and the same would encompass within itself, right to challenge an illegal acceptance of a nomination of a candidate and consequently, election of such a candidate itself, incase he is declared to be the successful candidate. The petitioner being aware of this has, in fact, approached the trial Court by filing Election Petition No.1/2012, which is apparent from Annexure "D". The order passed in that Election Petition, while issuing notice to the respondents was not to grant a stay of the meeting to be held on 27/12/2012. That order is also assailed in the writ petition. It is under these circumstances that learned Single Judge, while dismissing the writ petition, has given liberty to the petitioner to file a properly constituted Election Petition within fifteen days from the said date. The order of the learned Single Judge would not call for any interference in view of there being an alternative statutory remedy available to the petitioner to assail the election of Respondent No.6 on the premise that his nomination was illegally accepted. The petitioner has in fact, filed an Election Petition. It is only because the trial Court did not grant an interim order staying the meeting to be held on 27/12/2012 that the writ petition was filed seeking the prayers which were made in the Election Petition and also for assailing the order dated 27/12/2012 passed in the Election Petition. The order of the Election Tribunal as also the order of learned Single Judge would not call for any interference. In fact, learned Single Judge has permitted the petitioner to file a properly constituted Election Petition within fifteen days from the date of the said order without any reference to the limitation contemplated under the Act. The order of the Election Tribunal as also the order of learned Single Judge would not call for any interference. In fact, learned Single Judge has permitted the petitioner to file a properly constituted Election Petition within fifteen days from the date of the said order without any reference to the limitation contemplated under the Act. Since the Election Petition has already been filed by the petitioner on 26/12/2012 i.e., after the Election of Respondent No.6 to the post of 'Adhyaksha' on 21/12/2012, the direction of the learned Single Judge has to be understood as one permitting the petitioner to amend the Election Petition, if necessary. Therefore, the dismissal of the writ petition by the learned Single Judge would not call for any interference in this appeal and it is accordingly dismissed.