Point of law : Election - Non-compliance of Section 82(a), inasmuch as, prayer (b) in the petition seeking to declare the petitioner as the Returned Candidate and all contesting candidates to the election not being arrayed as parties, in terms of clause (1) of Section 86, the petition is required to be dismissed.

ORDER

R.DEVDAS J., (ORAL):

Learned counsel for the petitioner has filed a memo dated 02.01.2021 requesting that the petitioner may be permitted to comply with the office objections and also to comply the provisions of Section 82 of the Representation of the People Act, 1950 and 1951 (hereinafter referred to as ‘R.P.Act’ for short) and Rule 94(A) of the Conduct of Election Rules, 1961, as required under the Rule and to meet the ends of justice.

This election petition was filed on 18.12.2020 with two prayers, as follows:

“(a) Declare that the declaration of the election of the Respondent as contained in Annexure-E declaring the Respondent as Returning candidate from 136, SIRA Assembly Constituency, Tumkur as void as per Section 100(b) & (d)(i), (iii), (iv) of the Representation of Peoples Act, 1951;

(b) Declare the Petitioner as Returned candidate in respect of 136, SIRA Assembly Constituency, Tumkur as per Section 84 AND 101(A) of the Representation of Peoples Act, 1951.”

Office raised several objections. 19 objections were raised, to be precise. Thereafter, the instant memo dated 02.01.2021 was filed and the matter came up before this court for the first time on 11.01.2021. Learned counsel for the petitioner drew the attention of this court to the memo and sought for consideration of the memo. However, this court directed that the memo shall be considered after other objections were complied with. On 04.06.2021, when the matter came up before this court, learned counsel pressed for an order on the memo dated 02.01.2021. Learned counsel submits that in terms of the High Court of Karnataka Election Petition Rules (hereinafter referred to as ‘the Rules’ for short), more particularly as per Rule 9, a duty is cast upon the office of the High Court to raise objections if there is non-conformity of any of the requirements of law and the Rules in the election petition. Learned counsel submits that Rules laid down procedure for compliance of the office objections and time shall be granted for compliance of office objections.

Learned counsel would further contend that since there was non-compliance of Section 82(a) inasmuch as non-joinder of all the contesting candidates although a declaration was sought at prayer No.(b) to declare the petitioner as returned candidate in respect of 136, Sira Assembly Constituency, Tumkur, as per Section 84 and Section 101(A) of the R.P.Act, the office was bound to raise such an objection. Learned counsel would further submit that since the office was duty bound to raise such objections, a direction is sought that the office be directed to raise such objections and in terms of the Rules, grant an opportunity to the petitioner to comply with the office objections within three days or within such further time, as provided under the Rules. In this regard, learned counsel places reliance on the judgment of the Hon’ble Supreme Court in the case of Saritha S.Nair Vs Hibi Eden reported in AIR 2021 SC 483, to contend that an opportunity is required to be given by this court to cure the defects. Similarly, it is submitted that in the case of Ponnala Lakshmaiah Vs Kommuri Pratap Reddy and Others reported in (2012) 7 Supreme Court Cases 788, the Hon’ble Supreme Court has held that the courts should avoid hyper-technical approach while dealing with a electoral disputes. It is submitted that it has been held in that case that, election rules do not by themselves cause any prejudice to the successful candidate so long as the deficiency is cured by the election petitioner by filing a proper affidavit when directed to do so. Reliance is also placed on Patel Ahmed Mohammad Vs Balwant Singh Rajput & Others reported in AIR 2018 SC 4886; Saroj Sandesh Naik (Bhosale) Vs Suryakant Venkatrao Mahadik of Bombay High Court reported in 1991 0 Supreme(Bom) 229 and K.Venkateswara Rao and Another Vs Bekkam Narasimha Reddy and Others reported in 1969 0 AIR (SC) 872, which according to the learned counsel would justify his contention that t