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2012 Supreme(Kar) 304
High Court of Karnataka
D. V. SHYLENDRA KUMAR
Mrs. Kavitha Mahesh
Versus
Chief Election Commissioner & Others
Election Petition No. 7 of 2008
Decided on : 01-06-2012
For the Petitioner: Party in Person.
For the Respondents:R5 – C. Shashikantha, Advocate.
Headnote:CODE OF CIVIL PROCEDURE, 1908 - Order 18, Rules 4 & 5: [D.V.Shylendra Kumar, J] Whether Rule 5 of Order 18 should prevail over its Rule 4? - Held, The provision of Order 18, Rule 4 is general in nature, whereas its Rule 5 relates to specific situations resulting in appealable orders hence, Rule 5 of Order 18 should prevail over Rule 4 Order 18, as the legislature being conscious of the special provisions governed by the proceedings leading to an order which is made appealable, have consciously retained it.
REPRESENTATION OF THE PEOPLES ACT, 1951 - Sections 36 & 100(1) (c) & Conduct of Election Rules, 1961, Rule 4: [D.V. Shylendra Kumar, J] Presentation of nomination papers - Election petitioner made attempts to present her nomination papers but it was neither received nor scrutinized by Returning Officer - Defect, if any, could not be rectified within next 24 hours - Held, Non acceptance held would amount to rejection of nomination papers within the scope of Section 100 (1) (c) of the Act.
REPRESENTATION OF THE PEOPLES ACT, 1951 - Sections 81 & 100(1) (c): [D.V. Shylendra Kumar, J] Presentation of election petition - Locus standi - Rejection of nomination papers of election petitioner by Returning Officer - Election petitioner would be ’candidate’ for purpose of presentation of election petition under Section 81 of Act and is entitled to file election petition.
INDIAN PENAL CODE, 1860 - Section 193: [D.V. Shylendra Kumar, J] Giving false statement - Election petition filed on ground of improper rejection of nomination papers - Statement on oath by Returning Officer to effect that petitioner never presented or made any efforts to present her nomination papers before Returning Officer within permitted hours for presentation of nomination papers on last day for filing and receiving of nomination papers in elections was clearly a false statement made before High Court with an intention to avoid repercussions on him and to cover up lapses on his part -Court directed initiation of proceedings against Returning Officer under Section 193 of I.P.C.
1. This election petition under section 81 of the Representation of People Act. 1951 [for short ‘the Act’], is by a person who had aspired to be an independent candidate to contest the election for seeking the support of electors of K R Pura Legislative Assembly Constituency in Bangalore Urban District to represent this constituency as a Member of the Karnataka State Legislative Assembly in the elections to the Karnataka State Legislative Assembly held during the year 2008.
2. Election petitioner did not even become a candidate whose name figured in the list of candidates figuring in the ballot paper as it is pleaded in the petition that the efforts on the part of the petitioner to become a candidate was thwarted by the Returning Officer, 151 – K R Pura Legislative Assembly Constituency as it is the case of the petitioner that the returning officer did not even receive the nomination papers of the petitioner which were sought to be presented on 23.04.2008 – the last day for filing nominations as per the following calendar of events Act.
3. The results of the elections were declared by the returning officer as per the calendar of events on 27.5.2008. Respondent – N S Nandish Reddy was declared as the successful candidate. This respondent though originally figured as fifth respondent in the election petition. Respondents 1 to 4 – Chief Election Commissioner & Election Commissioners – Election Commission of India. The Chief Electoral Officer – State of Karnataka. The District Electoral Officer - Bangalore Urban District. The Returning Officer – K R Puram Constituency respectively, but the other four respondents having all been deleted with the permission of the court, as per the order dated 31.07.2008, the returned candidate alone figures as the respondent to the election petition as of now.
4. The election petition has been presented seeking for a declaration that elections to K R Pura Legislative Assembly Constituency as declared by the returning officer on 27.05.2008 is null and void due to the reason of the illegal and improper rejection of the petitioner’s nomination paper and therefore the election petition was presented for the relief on the ground of improper rejection of the petitioner’s nomination paper and seeking for relief in terms of section 100[1][c] of the Act.
5. Election petition averments are that the petitioner had aspired to be a candidate to contest for K R Pura Legislative Assembly Constituency to seek election from this Assembly Constituency to the Karnataka State Legislative Assembly and with such intentions she had prepared herself and had sought to present her nomination before the returning officer on 23.04.2008; that on one pretext or the other, the returning officer did not receive her nomination papers at all during the permitted hours, but had made her to run from pillar to post and had later declined to receive nomination paper on the pretext of the permitted time for filing nomination papers having been over which had given cause of action for presenting the election petition.
6. It is the averment in the election petition that the petitioner was an elector in the erstwhile Varthur Assembly Constituency which had come to be split into three constituencies, [a] Mahadevapura [b] C V Raman Nagar and [c] K R Pura, following delimitation of the assembly constituencies in the State; that after delimitation, the petitioner figured as an elector from C V Raman Nagar Constituency; that her name figured in the electoral role of this constituency in Part No.75, serial No. 1086, but she had made attempts to present her nomination papers for contesting as an independent candidate from K R Pura Legislative Assembly Constituency.
7. Election petition averments also indicated that the petitioner’s name prior to the year 1999 was Mrs. Kavitha Mageshwaran and in the year 1999, it was changed to Mrs. Kavitha Mahesh; that change in her name has figured in the electoral photo identity card [for short
