Appeal against Election Tribunal order setting aside Zilla Panchayath election due to EVM swapping. Court found improper vote reception materially affected result and dismissed appeal.
Dismissed the appeal; upheld the Election Tribunal's order setting aside the election and directing a fresh election.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF DECEMBER, 2020
PRESENT
THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA
AND
THE HON’BLE MR.JUSTICE N.S.SANJAY GOWDA
W.A.No.323/2020 (LB –ELE)
BETWEEN:
Smt. BhavyaRanganath, Wife of Ranganath, Aged about 29 years, Bandarahalli village, Gouribidanur Taluk, Chikkaballapura District-561 210. … Appellant
(By Sri. Jayakumar.S.Patil, Senior Counsel for Sri. Somasekhara K.H. Advocate)
AND:
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Manivala village, Gouribidanur Taluk, Chikkaballapura District-561 210.
… Respondents
(By Sri. Nishanth .A.V., Advocate for C/R-1, R-2 & R-3 are served and unrepresented)
This appeal is filed under Section 4 of the Karnataka High Court Act praying to allow the above Writ Appeal and set aside the order dated 06/03/2020 in W.P.No.30480/2017 (LB-ELE) ad further please to allow the Writ Petition No.30480/2017 (LB-ELE).
This appeal, having been heard and reserved for judgment, coming on for pronouncement this day, SANJAY GOWDA, J., delivered the following:
JUDGMENT
The undisputed facts leading to filing of this appeal
are as follows:
The Elections to the Chikkaballapura Zilla Panchayath and so also the elections to the
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Gowribidanuru Taluk Panchayath were simultaneously conducted on 13.02.2016.
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to as ‘the Act’) challenging the election of the Returned Candidate.
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of the Election Petitioner to be declared as the Returned Candidate. The Election Tribunal, ultimately, directed the concerned authority to hold fresh elections without giving scope for swapping of EVMs.
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7. This decision of the Election Tribunal by which
the election was aside and fresh elections were ordered to be conducted was challenged before this Court, by both the Election Petitioner as well as by the Returned Candidate.
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the Zilla Panchayath admitted that the controlling unit for the Zilla Panchayath had been used for counting the votes cast in respect of the Taluk Panchayath and similarly the controlling unit of Taluka Panchayath had been used for counting the votes cast in respect of the Zilla Panchayath. The learned Single Judge also took the view that the findings of the Election Tribunal could not be termed as perverse necessitating interference under Article 227 of the Constitution of India and proceeded to dismiss the Writ Petition of the Returned Candidate.
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existing data impractical and he, therefore, declined to entertain the writ petition of the Election petitioner.
that is therefore required to be considered is :
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counsel for the respondent, Sri. Nishanth A.V., that this Writ Appeal could not be maintained as the learned Single Judge had clearly stated in his order that he was exercising his jurisdiction under Article 227 of the Constitution of India, he ultimately stated that he would not urge this point and would address the Court on the merits of the matter.
Patil, appearing for the appellant contended that:
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and in the absence of the controlling unit, the finding of the Election Tribunal regarding swapping of the EVM could not have been examined, let alone record a finding in that regard.
d. The evidence of the Returning Officer (P.W.2) was merely suggestive and was not conclusive and he had merely rendered his opinion regarding swapping of the controlling unit and furthermore, since he had no personal knowledge of the matter, his evidence would not be adequate to record a finding regarding swapping of the controlling unit of the EVM.
e. Neither the Election Petitioner, nor any of her agents had raised any objections regarding swapping of controlling unit, either during the conduct of the election or at the time of counting and therefore, the Election Petitioner was estopped from challenging the election.
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a. The Election Tribunal, on consideration of Form No.28B pertaining to Melya Taluk Panchayath (Ex.P.2) and Form No.28B pertaining to Nagargere Zilla Panchayath (Ex.P.3), which clearly indicated that the controlling units of the EVMs had been swapped, had come to the conclusion that there was improper acceptance of votes in favour of the Returned Candidate and it had on that basis rightly come to the conclusion that the election had been materially affected, which had, in turn, necessitated the holding of a fresh election.
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No.28B, which was an indisputable public record, the Election Tribunal was justified in setting aside of the elections and ordering for a fresh election.
c. Having regard to the fact that the margin of victory was only 218 votes and keeping in mind that the CPI (M) candidate, who had secured votes in small numbers throughout the constituency, had however secured 766 votes in Polling Station No.183, which, by itself, proved that there had been swapping of the EVMs.
d. Had the controlling unit of the EVM not been swapped, the Election Petitioner would have secured 766 votes as against 24 votes that had been recorded against her name and viewed in the background of the fact that the margin of victory of the Returned Candidate was a slim 218 votes,
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it was clear that the elections had been materially affected.
e. The Election Petitioner, in law, could raise all available grounds to challenge an election even if she or her agent had not raised any objections regarding the conduct of the elections by filing an Election Petition and her right to challenge the elections were not dependent on the objections raised during the process of the elections.
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pressing the appropriate button to enable the recording of the vote of the elector.
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closing of the poll, as per Rule 104 of the Rules to close the control unit to ensure that no further votes are recorded and thereafter detach the Balloting Unit from the Control Unit. Thereafter, both the Control and Ballot Unit are required to be sealed and secured separately by him and he should also permit the polling agents to affix their seals, if they so desire.
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the Presiding Officer is required to prepare an account of
the votes recorded in Form 28-B.
FORM 28-B(EVM)
(See Rule 103 and 106)
PART 1
ACCOUNT OF VOTES RECORDED
Election to the member of ………… Grama/Taluk/Zilla Panchayat from …………………… Constituency
No. and Name of Polling Station………… Identification No. of Voting Control Unit………… Identification No. of Voting Ballot Unit………………
Machine used at the Polling Station Balloting Unit.-
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(a)Received for use (b) Issue to electors (c) Not used and returned
From To Signature of polling agents
From To 1. ………………
Paper seal if any 5. ……………….
Date…………. Signature of the Presiding Officer Place…………. Polling Station No………………………..
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PART II
RESULT OF COUNTING
| Sl.No. | Name of Candidate | No. of votes ecorded |
|---|---|---|
| 1. | ||
| 2. | ||
| 3. | ||
| 4. | ||
| 5. 6. |
||
| Total |
Whether the total numbers of votes shown above tallies with the total number of votes shown against Item 5 of Part I or any discrepancy noticed between the two totals.
Signature of the Counting Supervisor
Place………….
Date………….
Name of candidate/election agent/counting agent Full Signature
Place…………. Date………….. Signature of the returning officer.]
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This List is admitted by the Returning Officer in his deposition and there is no challenge to this List even by the Returned Candidate. It is, therefore, clear that the record containing the details of the Control Unit and Ballot Unit in respect of Polling Booth No.183 (Hunesanahalli) as recorded in Ex.P.1 and Ex.P.2 is beyond dispute.
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Taluk Panchayath, was the unit that was actually sent by the Presiding Officer to the Returning Officer for counting.
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that there was an improper reception of votes in favour of the Returned Candidate.
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eschewed from the total number of votes secured by her, then she would have garnered a total number of 10,946 votes. Correspondingly, if the 24 votes that the Election Petitioner had secured in Polling Booth No.183 was eschewed from the total number of votes secured by her, then, she would have secured 11,472 votes.
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therefore perfectly justified in setting aside the election and ordering for a fresh election.
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reasoning and also the conclusion of the Election Tribunal was just and proper.
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and would in no way alter the fact that the EVMs had indeed been swapped.
same.
Sd/JUDGE
Sd/JUDGE
PKS
2 issues framed by the court
Whether the decision of the Election Tribunal in ordering for a fresh election is justified?
What order should be passed in the appeal?
Colour shows how this judgement treated each authority
Article 227 of the Constitution of IndiaReferred¶41
2 provisions across 1 enactments
Smt. Bhavya Ranganath
Smt. R.Saraswathi Ramanjinappa
Smt. Ashwathamma
Smt. Adilakshmamma
N.S.Sanjay Gowda
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
