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2016 DIGILAW 420 (KAR)

YASMEEN v. STATE OF KARNATAKA

2016-06-07

VINEET KOTHARI

body2016
ORDER : 1. The petitioner Smt. Yasmeen has filed the present writ petition before this Court seeking quashing of the election proceedings in respect of the election of Adhyaksha and Upadhyaksha of Grama Panchayath, Gonikoppa, Virajpet Taluk, Kodagu District and to direct the respondent-Assistant Director to allow the petitioner to participate in the said election process and accept her nomination for the said post. The petitioner was elected to the said panchayat in the election held on 20.4.2016 vide the electoral certificate issued by the Returning Officer on 20.4.2016. 2. It is the case of the petitioner that in pursuance of Annexure-B, notice issued for summoning the first meeting for the election of Adhyaksha and Upadhyaksha on 19.5.2016, the time frame given for submitting the nominations was before 11.30 AM on 31.5.2016. But when her nomination was intended to be filed, one of her supporters Sri. B.N. Prakash was informed by the designated officer vide Endorsement Annexure-C dated 31.5.2016, the translated copy of which is placed on record, that ‘for conducting election and receiving nomination and also to conduct meeting, 50% members should be present and hence this information given to you’. 3. According to the writ petitioner vide averments made in paragraph 4 of the writ petition, in view of the said endorsement or communication Annexure C, the petitioner left the office of the second respondent and returned well in advance i.e. before 11.30 AM to file her nomination paper and she filed the nomination paper before 11.30 AM on 31.5.2016. 4. The meeting scheduled to be held for electing the said Adhyaksha and Upadhyaksha could not be held on the said date 31.5.2016, since the quorum for said meeting was not available and thus the meeting stood adjourned and which is now scheduled to be held on 8.6.2016. 5. Sri. Basavaraju S, learned counsel for the petitioner, urged before this Court that the said Endorsement Annexure-C dated 31.5.2016, addressed to Mr. 5. Sri. Basavaraju S, learned counsel for the petitioner, urged before this Court that the said Endorsement Annexure-C dated 31.5.2016, addressed to Mr. B.N. Prakash one of the supporters of the petitioner vide Annexure-F, a declaration purportedly made by 12 members of the said Grama Panchayat that they were supporting the candidature of Smt. Yasmeen for the post of Vice President of the said Grama Panchayath, was a deliberate attempt of respondent No.2 to reject her nomination even prior to the holding of the meeting and since the majority of the members supported her candidature, she would have stood elected to the said post of Upadhyaksha, if her nomination was accepted. This was not done in view of the Endorsement Annexure-C dated 31.5.2016. He therefore, submitted that the writ petition deserves to be allowed and needful directions may be given to the second respondent-Assistant Director to allow the petitioner to participate in the election process. 6. On the other hand, Mr. V. Sreenidhi, learned AGA appearing for the respondents-State submitted that the nomination of the petitioner was not filed in time before 11.30 AM on 31.5.2016 and as per the original record available with him of 31.5.2016, the petitioner filed her nomination belatedly at 11.45 AM on 31.5.2016 after the stipulated time i.e. before 11.30 AM. He also submitted that the Endorsement Annexure-C dated 31.5.2016 was addressed to one Sri. B.N. Prakash, who is not candidate himself for the said post of Vice President, was not addressed to the petitioner Smt. Yasmeen herself and even Annexure-F, document purportedly emanating from the said 12 members of Grama Panchayat supporting the candidature of the petitioner Smt. Yasmeen, is neither addressed to any of the respondents, nor the same bears the place and date of submission. 7. Further, he seriously disputes the averments made in paragraph 4 of the writ petition that the nomination of the petitioner was filed before the cutoff time of 11.30 AM on 31.5.2016. He also submitted that the time for filing of the nomination for the said post cannot be extended by respondent No.2 under any circumstances. 8. I have heard the learned counsels at length and perused the averments made in the writ petition and the documents placed on record. 9. He also submitted that the time for filing of the nomination for the said post cannot be extended by respondent No.2 under any circumstances. 8. I have heard the learned counsels at length and perused the averments made in the writ petition and the documents placed on record. 9. It is true that the Endorsement Annexure-C is addressed to one B.N. Prakashmember of the said Grama Panchayat and not to the petitioner Smt. Yasmeen, is not happily worded not even very happily and very correctly translated also. But it appears to be given on a misconstruction of the relevant provisions of law by the said Authority. 10. The Karnataka Panchayat Raj (Election of Adhyaksha and Upadhyaksha to Grama Panchayat) Rules, 1995 are akin and in parimateriawith Rules 3A, 3B and 3D of The Karnataka Panchayat Raj (Election of Adhyaksha and Upadhyaksha to Taluk Panchayat) Rules, 1994 and do not give any discretion or power to the Election Officer to extend the time fixed for receiving the nominations from the various candidates for the post of Adhyaksha and Upadhyaksha of the concerned Grama Panchayat. The actual election or poll for the election, if necessary as per the notice of the meeting requires presence of the quorum for the meeting but no quorum of the members is necessary as far as the process of filing nominations is concerned and therefore, the Endorsement Annexure-C, even though addressed to one B.N. Prakash who is not the candidate for the said post himself, is taken at its face value, the same is at best a misunderstanding of the relevant legal provisions. But, that however, does not empower the petitioner to file her nomination even belatedly and ask for a mandamus direction from this Court to the Election Officer to accept such belatedly filed nomination also and allow her to contest the election for the post of Adhyaksha/Upadhyaksha of the said Grama Panchayat. 11. The averments made in paragraph 4 of the writ petition are also vague. The petitioner states in the latter part of paragraph 4 “since the 2nd respondent categorically informed the petitioner that even to file the nomination paper quorum of 50% was required, the petitioner left the office of the 2nd respondent and returned well in advance i.e. before 11.30 to file her nomination paper”. The petitioner states in the latter part of paragraph 4 “since the 2nd respondent categorically informed the petitioner that even to file the nomination paper quorum of 50% was required, the petitioner left the office of the 2nd respondent and returned well in advance i.e. before 11.30 to file her nomination paper”. The exact time of her visit to the office of the second respondent and upon coming to know of Annexure-C communication, her going away from the said office and her return back to the said office is not mentioned in paragraph 4 of the writ petition for the reasons best known to the petitioner. When a particular time is fixed for filing of the nomination papers and the petitioner wants to agitate the issue of her candidature and receipt of her nomination in a court of law, mentioning of the precise time with requisite evidence is necessary to rely upon such averments and evidence. The words “left office of the second respondent and returned well in advance” do not give any clue as to what point of time it all happened. Neither the respondent authority nor the petitioner has made any endorsement on Annexure-C, communication dated 31.5.2016 when such communication was either received by her supporter Sri. B.N. Prakash or by herself. 12. As against this the contention of the respondents supported by the original record produced before this Court that the nomination was filed in the office of the second respondent at 11.45 AM appears to be correct. 13. The learned counsel for the petitioner also sought to make a submission on the basis of the said original report, a register in which the minutes of the proceedings of 31.5.2016 have been recorded by the second respondent, that there is interpolation of sentence about the time of submission of the nomination of the present petitioner at 11.45 AM because the scrutiny of nomination was done between 11.30 AM to 11.45 AM and the said second respondent has recorded that two nominations for the post of Vice President was received and therefore, if the nomination of the petitioner was received at 11.45 AM itself, there was no question of its scrutiny between 11.30 and 11.45 AM. 14. This submission was explained by Mr. 14. This submission was explained by Mr. V. Sreenidhi, learned AGA with the help of the record itself which is recorded in Kannada language (English translation of the same was made jointly by the learned counsels and submitted that there is no insertion in the said Register and separately a Note in the said proceedings in the register itself has been made by respondent No.2 that the nomination of the petitioner was filed at 11.45 AM and so he urged that submission of the nomination by the petitioner was beyond the stipulated time. He also submitted that as per the calendar of election process vide Annexure-B dated 19.5.2016, the nominations were to be submitted before 11.30 AM and scrutiny of the same was to take place between 11.30 AM and 11.45 AM and after that the period allowed for withdrawal of the nomination was between 11.45 to 12 noon. The election was to take place, if necessary after completing the process of withdrawal of the nomination. 15. The learned AGA further submitted that there is no mala-fide on the part of the second respondent in rejecting the nomination of the petitioner which was rejected as the same was received only after the stipulated time of 11.30 AM. 16. This Court is of the opinion that the dispute about the actual time of filing of the nomination by the petitioner is seriously a disputed question of fact in the present case and which cannot be agitated or decided in the extraordinary writ jurisdiction of this Court under Article 226 of the Constitution of India. When a time frame is given for submitting the nomination for the said post and prima facie, when there is no power with the respondent/authority to extend the time limit, if the respondent states before the Court with the help of original record though a detailed statement of objections is yet to be filed, that the nomination was filed at 11.45 AM, against such categorically recorded minutes in the original record, the vague averments made in paragraph 4 of the writ petition, as quoted above, that the petitioner returned well in advance before 11.30 AM to file her nomination, cannot be taken as gospel truth. 17. The said averments in the background of the very foundation sought to be allowed in the present writ petition that Annexure-C, endorsement, was to be given to Mr. 17. The said averments in the background of the very foundation sought to be allowed in the present writ petition that Annexure-C, endorsement, was to be given to Mr. B.N. Prakash, one of her supporters vide Annexure-F which was never given to any authority in the office of the respondent and it has been produced only for the purpose of their writ petition, it cannot be taken at its face value that the petitioner was misled by the said Endorsement and left the said office and returned back in time to submit her nomination and actually filed it. No allegations of personal mala-fide of the second respondent are alleged in the writ petition by the petitioner except the averments relating to malice-in-law in paragraph 6 of the writ petition and the argument of ‘institutional integrity’ raised by the petitioner. 18. Such vague averments about the mala-fides and institutional intergrity, if at all they have to have any substance, have to be supported with clear averments of malice in fact first and duly established with the help of evidence and no such presumptuous malice-in-law can be inferred against a public authority. This Court is not inclined to accept such submissions without any foundation laid in the writ petition. The same is liable to be rejected and is accordingly rejected. 19. Apart from the aforesaid, this Court is also of the view that the said belatedly filed nomination of the petitioner cannot be said to be a valid nomination in accordance with the relevant Rules and therefore no mandamus direction can be issued to the respondent Authority to accept such nomination even though filed beyond the prescribed time. 20. The writ petition thus is found to be devoid of any merit and is liable to be dismissed and the same is accordingly dismissed. No costs.