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2011 Supreme(Kar) 595
High Court of Karnataka
K. SREEDHAR RAO
M.B. Manjunath
Versus
Deputy Commissioner & Others
WRIT PETITION NO. 17098 of 2011 (APMC)
Decided on : 15-10-2011
For the Petitioner:Jayakumar S. Patil, Senior Counsel for Jayakumar S. Patil Associates, Advocates.
For the Respondents:R1 to R3 - D. Vijayakumar, AGA, R4 - K.T. Gurudeva Prasad, R5 - S.P. Kulkarni, Advocates.
Headnote:KARNATAKA AGRICULTURE PRODUCE MARKETING (REGULATION AND DEVELOPMENT) RULES, 1968 - Rule 34: [K. Sreedhar Rao, J] Fresh poll in the case of destruction, etc., of ballot boxes - Impugned order passed by the third Respondent/Returning Officer directing re-poll in the entire constituency - Held, The contention that the third respondent has power to re-poll under Section 34(2) of the Rules is untenable because the power under Section 34(2) of the Rules can be exercised only upon the complaint by the Presiding Officer when the polling is going on or after the conclusion of polling but at any rate not at the stage of counting. In the instant case, there is no complaint of the Presiding Officer. Sub-Section 2 of the Section 35 of the Rules empowers the Returning Officer to hold fresh poll for the booths when he found that ballot papers are tampered and such opinion is to be taken by the Returning Officer before proceeding with the counting. If really there was material to show that the ballot boxes were tampered, the fifth respondent should have made an application to that effect and brought to the notice of the third respondent. There is no such application filed by 5th respondent. The reasons given by the third respondent for re-polling are contrary to law and he has no jurisdiction to direct to re-poll in the midst of counting. In that view of the matter, the impugned order is liable to be set aside. The third respondent is directed to proceed with the counting in accordance with law.
KARNATAKA AGRICULTURE PRODUCE MARKETING (REGULATION AND DEVELOPMENT) RULES, 1968 - Rules 38, 34(2) & 35(1) to (4): [K. Sreedhar Rao, J] Election of Director to Shikaripur APMC - Held that Rule 34(2) is not applicable - No allegation as to tampering of ballot papers to attract Rule 35 - The reasons given by the third respondent for re-polling are contrary to law and he has no jurisdiction to direct to re-poll in the midst of counting. In that view of the mater, the order is set aside. Writ petition allowed. The third respondent was directed to proceed with the counting in accordance with law.
1. The Petitioner and the fifth respondent contested for Sunnadakoppa constituency to elect the Director to Shikaripur APMC. Pursuant to the calendar of events, the polling was held on 25.04.2011. The counting was commenced on 27.04.2011. The third respondent before commencing the counting, opened the ballot boxes. In the ballot boxes pertaining to Kadenanandihalli polling booth, it was found that there were 15 ballot papers pertaining to Kortagere constituency. This fact was apprised by the third respondent to 5th respondent who has consented and requested the third respondent to proceed with the counting ignoring the said irregularity and requested that 15 ballot papers should be kept separately and it should not be counted. The third respondent with the consent of both the contestants, proceeded with the counting.
2. It is the contention of the petitioner that in the process of counting when 1022 ballot papers were counted, the petitioner was leading by about 600 votes. There were still about 500 ballot papers to be counted. The 5th respondent at that stage, submitted an application to the third respondent to hold fresh polling in view of the irregularities noticed. The third respondent considered the objections filed by the 5th respondent and has passed the order at Annexure-F for re-poll in the entire constituency. The petitioner aggrieved by the said order at Annexure-F, has filed third writ petition.
3. The order at Annexure-F discloses that the third respondent in exercise of the powers under Rule 38 of the Karnataka A.P.M. (Regulation and Development) Rules, 1968 (hereinafter called as ‘the Rules), has ordered for repoll.
4. Sri S.P Kulkarni, counsel for the respondents submits that the provisions of law quoted is a mistake. In fact, the returning officer will have jurisdiction to direct repoll under Rule 34(2) of the Rules.
5. The provisions of Rules 34(2) and 35(1) to (4) of the Rules are extracted herein which are relevant for consideration in this case.
34. Fresh poll in the case of destruction, etc., of ballot boxes.-
(1) Xxxx xxxx xxxx
(2) Thereupon, the Returning Officer, shall after taking all material circumstances into account, either;
(a) declare the poll at that polling station to be void, appoint a day, fix the hours for taking a fresh poll at that polling station and notify the day so appointed and the hours so fixed in such manner as he may deem fit, or
(b) if satisfied that the result of a fresh poll at that polling station will not, in any way, affect the result of the election of that the error or irregularity in procedure is not material, issue such directions to the Presiding Officer under intimation to the candidate or his agents as he may deem proper for the further conduct and completion of the election.
35. Counting of votes.
On the day and at the place and time fixed under clause (f) of Rule 7 for the counting of votes and in the presence of candidates and their agents present, the Returning Officer shall proceed as follows.-
(1) Before any ballot box is opened at a counting table, the candidate or their agents shall be allowed to inspect the paper seal or such other seal as might have been affixed thereon and to satisfy themselves that it is intact.
(2) The Returning Officer shall satisfy himself that none of the ballot boxes has in fact been tampered with.
(3) If the Returning Officer is satisfied that any ballot box has in fact been tampered with, he shall not count the ballot papers contained in that box and shall follow the procedure laid down in Rule 34.
(4) The ballot box or boxes relating to each polling station shall be opened one after another in the order of the number assigned to the polling booths and the Returning Officer shall take out the ballot papers therefrom, count them or cause them to be counted and record the number thereof in a statement in Form 23.
6. The contention that the third respondent has power to re-poll U/s 34(2) of the Rules is untenable be
