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CASE NO.:

Appeal (civil) 2-3 of 2002

Appeal (civil) 1455 of 2002

PETITIONER:

PRAKASH KHANDRE

Vs.

RESPONDENT:

DR. VIJAYA KUMAR KHANDRE AND OTHERS

DATE OF JUDGMENT: 09/05/2002

BENCH:

M.B. Shah, Bisheshwar Prasad Singh & H.K. Sema

JUDGMENT:

Shah, J.

In the background of facts briefly stated below, questions for

determination in these appeals are

1. In an Election Petition under the Representation of the

People Act, 1951 (hereinafter referred to as ’the Act’),

when contest for election to the post of MLA is by more

than two candidates for one seat and a candidate, who

was disqualified to contest the election, is elected

whether the Court can declare a candidate who has

secured next higher votes as elected? And

2. Whether contract between the elected candidate and the

Government was subsisting on the date of scrutiny of

nomination papers?

Appellant Prakash Khandre contested election from No.2-

Bhalki Constituency of Karnataka State Legislative Assembly and

was declared elected. Respondent no.1 Dr. Vijay Kumar Khandre

contested the said election but was defeated. The details of the votes

secured by each candidate are as follows: -

Sl.No. Name of the Candidate No. of Votes Difference

Polled

01. Shri Prakash Khandre 47,132 |

| 10327

02. Dr. Vijay Kumar Khandre 36,805 |

03. Sri Bheemanna Kolle 660

04. Shri Shivaraj Patil 1,054

05. Sri Siddaramaiah S. Swamy 177

Respondent no.1 challenged the said election by filing Election

Petition No.25/99 and contended that declaration of election dated

5.9.1999 resulting in favour of the appellant was illegal and void. He

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prayed that he may be declared as duly elected to Karnataka State

Legislative Assembly on the ground that under Section 9-A of the

Act, appellant was disqualified to contest the election as there were

subsisting contracts entered into by him in the course of his business

with the State Government.

Further, a voter Mr. Baswaraj D. Honna - appellant in C.A. No.

1455 of 2002 also filed Election Petition No.30/99 for a declaration

that election of Mr. Prakash Khandre was void under Section

100(1)(a) and Section 100(1)(d)(i) of the Act.

Appellant also filed Recrimination Petition under Section 97 of

the Act praying that in the event of his election to the constituency

being declared void, respondent No. 1 Dr. Vijay Kumar Khandre

should not be declared as elected as he is guilty of corrupt practices as

specified in Section 123 of the Act.

The High Court of Karnataka at Bangalore [Mr. Justice A.V.

Srinivasa Reddy] by its judgment and order dated 21.12.2001 allowed

the election petition filed by respondent No.1 and the election of

appellant was declared void under section 100(1)(a) on the ground

that work of effective improvement and asphalting of Halburga-

Bawgi-Kamtana road was continued to be carried out by Prakash

Khandre even after purported closure of contract. With regard to the

rest of the contract works, the High Court held that contracts were

terminated. The Court also declared that the votes polled by the

elected candidate would become wasted and, therefore, Dr. Vijay

Kumar Khandre who has secured the next highest number of valid

votes has to be declared elected under Section 101 of the Act and was

declared accordingly. That order is challenged by Prakash Khandre

by filing Civil Appeal Nos.2-3 of 2002. Civil Appeal No. 1455 of

2002 is filed by Basavaraj D. Honna.

At the time of admission of this matter, by order dated

18.1.2002, the Court granted interim relief as under:

"Appeals admit.

The impu