In elections with multiple candidates, disqualification of one does not automatically declare the next highest candidate elected without considering valid voting patterns.

JUDGMENT :

SUDHANSHU DHULIA, AHSANUDDIN AMANULLAH, JJ.

1. Heard learned counsel for the appellant.

2. Leave granted.

3. These appeals arise against the Final Judgment and Order passed by a learned Single Judge of the Karnataka High Court, Kalaburagi Bench (hereinafter referred to as the ‘High Court’) on 28.07.2023 (hereinafter referred to as the ‘Impugned Order’¹ [2023 KHC-K 6083]) whereby the High Court partly allowed appeal bearing MFA² [Abbreviation for Miscellaneous First Appeal] No. 201854 of 2022 filed by Respondent No. 1 and dismissed the appeal bearing MFA No. 202002 of 2022 filed by Respondent No. 2.

FACTS:

4. Notification dated 11.08.2021 was issued by the Karnataka State Election Commission notifying elections to the posts of Councillors of the Municipal Corporation, Kalaburagi (hereinafter referred to as the ‘Corporation’). There were six candidates who had filed their nominations and were found to be eligible to contest in respect of Ward No. 24.

5. Elections were held on 03.09.2021 and the results were declared on 06.09.2021. R2 had secured 1587 votes; the Appellant had secured 1027 votes; R3 had secured 594 votes; R4 had secured 271 votes; R1 had secured 47 votes and R5 had secured 36 votes. R2 was declared as the returned candidate in terms of the Notification published in the Karnataka Gazette dated 23.09.2021.

6. The Appellant filed an Election Petition viz. E.P. No. 1/2021 under Section 33³ [Election petition: (1) No election of a councillor shall be called in question except by an election petition presented for adjudication to the District Court having jurisdiction, within thirty days from the date of the publication of the result of election under Section 32. (2) An election petition may be presented on one or more of the grounds specified in Section 35: (a) by any candidate at such election; or (b) by any voter of the ward concerned. (3) A petitioner shall join as respondents to his petition all the candidates at the election. (4) An election petition: (a) shall contain a concise statement of the material facts on which the petitioner relies; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Act 5 of 1908) for the verification of pleadings. (5) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date of presentation of the election petition under sub-section (1): Provided that where the petitioner alleges any corrupt practice the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. (6) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition] of the Karnataka Municipal Corporations Act, 1976 (hereinafter referred to as the ‘Act’) before the Election Tribunal being the learned III Additional District and Sessions Judge at Kalaburagi (hereinafter referred to as the ‘Trial Court’) for the following reliefs:

“(1) Set aside the election of respondent No. 1 from Ward No. 24 of Karnataka Municipality Corporation, Kalaburagi.

(2) Declare the election of Mrs. Priyanka as Councillor from Ward No. 24 of Karnataka Municipality Corporation, Kalaburagi as void.

(3) Further, it be declared that the petitioner is duly elected from Ward No. 24 of Municipal Corporation, Kalaburagi being secured second highest votes.” (sic)

7. It was alleged by the Appellant in the Election Petition that R2, had declared her age as 20 years at Page No. 3 of her nomination papers. However, in the affidavit, which accompanied the nomination, when it was sub