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IN THE HIGH COURT OF KARNATAKA AT KALABURAGI BENCH
H.T. NARENDRA PRASAD, J.
DEVANDRAPPA S/O BASAPPA – Petitioner
Versus
HULIGEMMA W/O SIDDAPPA – Respondent
Writ Petition No. 200133 of 2022
Decided On : 15-09-2022
Code of Civil Procedure, 1908 - Order 7 Rule 11 and Section 151 - Karnataka Panchayatraj Act, 1993 - Section 17, (1), 15, (1), (2), 19 (1), 20 - Representation of the Peoples Act, 1951 - Section 81, (1), 82, 86(1) - Election Petition - Sought for Recounting of Votes - Petitioner and respondent No. 1 herein have contested for Grama Panchayat election - Case of petitioner is that in election petitioner has been declared as a winning candidate for Constituency - Respondent No. 1 was defeated in election - Hence, he has filed Election Petition under Section 15 of 1993 Act before Court of Senior Civil Judge and JMFC, on ground that counting of votes were not held properly and there was dereliction of duty on part of respondent No. 2-returning officer and sought for recounting of votes. [Para 16]
Finding of the Court: In Jyoti Basu and Others vs. Debi Ghosal and Others, this Court dealt with Section 82 of said Act, and it is this judgment which High Court principally relied upon - Ratio of this judgment, is that a person who is not a candidate cannot be joined as a respondent to an election petition - High Court, however, failed to notice that, having so held, this Court ordered deletion of superfluous party from array of parties - It is, therefore, clear, on authorities of this Court, that those who are mentioned in Section 82 of said Act must be made parties to an election petition and, if they are not, election petition is one which does not comply with provisions of Section 82 and must, therefore, be dismissed by reason of terms of Section 86(1) - It does not, however, follow that if to an election petition parties other than those who are necessary parties under Section 82 have been impleaded, election petition is one that does not comply with provisions of Section 82 and must be dismissed - Such a petition can be amended by striking out from array of parties those additionally impleaded - Therefore, it is clear that those who are mentioned in Section 15(2) of said Act must be made parties to an election petition and if they are not made a party, election petition does not comply with provisions of Section 15 of Act - Election Petition has to be dismissed under Section 17(1) of 1993 Act - If other than parties mentioned in Section 15(2) were made as parties, Election Petition cannot be dismissed on that ground - Such a petition can be amended by striking out names from array of parties - In view of above, matter requires to be remitted back to trial Court to consider these two grounds which have been urged by petitioner herein and pass a fresh order in accordance with law.
Result: Petition allowed.
ORDER :
1. In this writ petition, the petitioner has called into question the order dated 03.01.2022 (Annexure-E) passed by the Senior Civil Judge and JMFC, Lingasugur on I.A. No. 6 in E.P. No. 5/2021 whereby I.A. filed under Order 7 Rule 11 r/w. Section 151 of CPC and Section 17(1) of the Karnataka Panchayatraj Act, 1993 (for short ‘1993 Act’) is dismissed.
2. The brief facts of the case are that the petitioner and respondent No. 1 herein have contested for Grama Panchayat election from Nagarhal-3 Constituency which comes under Nagarhal Grama Panchayat, Lingasugur Taluk, Raichur District.
3. The further case of the petitioner is that in the election the petitioner has been declared as a winning candidate for Nagarhala-3 Constituency. The respondent No. 1 was defeated in the election. Hence, he has filed Election Petition under Section 15 of the 1993 Act before the Court of Senior Civil Judge and JMFC, Lingasugur on the ground that counting of votes were not held properly and there was dereliction of duty on the part of respondent No. 2-returning officer and sought for recounting of the votes.
4. After service of notice, the petitioner herein appeared through the counsel and has filed objection to the main petition and filed I.A. No. 6 under Order 7 Rule 11 r/w. Section 151 of CPC and Section 17(1) of the 1993 Act for dismissal of the Election Petition on the ground that the Election Petition is not presented by the first respondent himself and second ground they have raised is mis-joinder of parties. Pursuant to the application, respondent No. 1 herein has filed objections. After considering the contention of both the parties, by impugned order dated 03.01.2022, vide Annexure-E, the application filed by the petitioner has been dismissed. Being aggrieved, petitioner is before this Court.
5. Sri Ameet Kumar Deshpande, learned Senior Counsel appearing for Sri Ganesh Subhashchander Kalaburagi for the petitioner herein contended that as per Section 15 of the 1993 Act the Election Petition should be presented by the respondent No. 1 herself. In this case, Election Petition is presented by the first respondent's counsel. The Election Petition itself is contrary to Section 15 of the 1993 Act. Hence, the election petition is not maintainable. In support of his contention, he relied on the judgment of the Hon'ble Apex Court in the case of G.V. Sreerama Reddy and Another vs. Returning Officer and Others, AIR 2010 SC 133.
6. Secondly, under Section 15 of the 1993 Act, it is prescribed that the petitioner can join only the candidates other than the petitioner and any other candidate against whom allegation of any corrupt practice are made in the petition as a respondent to Election Petition. In this case, respondent No. 1 has impleaded the ‘returning officer’ as a party- respondent and the same is contrary to Section 15(2) of the 1993 Act. If any Election petition is filed before the designated Court not complying with the provisions of Section 15, the same has to be dismissed. In support of his contention, he has relied on the judgment of this Court in the case of B.S. Yediyurappa vs. Mahalingappa, AIR 2001 Kar. 61. Therefore, he contended that the impugned order passed by the designated court is contrary to the provisions of Sections 15 and 17 of the 1993 Act. Hence, he sought for allowing the petition.
7. Per contra, Sri A.M. Nagral, learned counsel appearing for the respondent No. 1 has contended that the Election Petition has been presented by the first respondent's counsel. At the time of presentation before the designated court, the first respondent was present. He contended that even in the objection filed by the first respondent to the I.A. filed by the petitioner, he has specifically stated that at the time of presenting the Election Petition, the first respondent was present before the designated court.
8. He further contended that it is very clear from the order sheet that on the very same day, when the Election Petition has been pres
There is an identical provision in Representation of Peoples Act i.e. Section 82, which is A petitioner shall join as respondents to his petition where the petitioner, in addition to claiming declara....
Election petitions must be presented personally by the candidate, and failure to comply with this requirement is an incurable defect.
Non-joinder of a candidate accused of corrupt practices in an election petition results in its mandatory dismissal under Section 86 of the Representation of the People Act, 1951.
Election disputes must comply strictly with statutory provisions regarding party joinder, as outlined in the Representation of the People Act, 1951.
Important Point :Election petitions must contain concise statements of material facts and particulars of corrupt practices; failure to comply results in dismissal.
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