Allowed

Sri Uday Kumar H v. Sri Anandappa

Karnataka HC9 Mar 2023MFA/11/2023

Case brief

AI extract

What is this about?

This miscellaneous first appeal and connected writ petition challenged an election petition that declared the appellant's election void. The High Court allowed the appeal, holding that the election petition was not maintainable for non-joinder of necessary parties and lacked reliefs required under the Karnataka Municipal Corporations Act, 1976.

What did the court decide?

The election petition (E.P. No. 3/2019) was dismissed. The impugned order dated 17.12.2022 was set aside. The connected W.P. No. 19540/2022 was dismissed.

Sri Uday Kumar H Vs Sri Anandappa — Election Law | Karnataka HC (2023)

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MFA No. 11 of 2023 C/W WP No. 19540 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF MARCH, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR MISCELLANEOUS FIRST APPEAL NO. 11 OF 2023 (MPA)

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C/W

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WRIT PETITION NO. 19540 OF 2022(LB-RES)

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IN M.F.A.No.11/2023

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BETWEEN:

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SRI UDAY KUMAR H S/O HANUMANTHAPPA K AGED 38 YEARS R/AT NO 1249, 4^TH CROSS BEHIND KOOGU DURGAMMA TEMPLE GANDHINAGARA LAYOUT DAVANAGERE 577 001.

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…APPELLANT

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Digitally signed by CHANDANA B M Location: High Court of Karnataka

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(BY SRI. PROF. RAVIVERMA KUMAR, SENIOR ADVOCATE APPEARING FOR SRI. KASHINATH S.D., ADVOCATE)

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AND:

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SRI ANANDAPPA S/O LATE. MARAPPA AGED 55 YEARS R/AT NO 305, 2^ND CROSS S M KRISHNA NAGARA NEAR RTO, DAVANAGERE 577 006.

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THE COMMISSIONER KARNATAKA STATE ELECTION COMMISSION BEHIND KSCMF BUILDING NO 8 1^ST FLOOR, CUNNINGHAM ROAD VASANTH NAGAR BENGALURU 560 052.

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2 - MFA No. 11 of 2023 C/W WP No. 19540 of 2022

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THE DISTRICT CHIEF ELECTION OFFICER / DEPUTY COMMISSIONER KIADB INDUSTRIAL ESTATE ZILLA DALITHA BHAVAN DAVANAGERE 577 002.

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THE RETURNING OFFICER WARD NO 41,42,43, 44 AND 45 DAVANAGERE CITY MAHANAGARA PALIKE KIADB INDUSTRIAL ESTATE ZILLA DALITHA BHAVAN DAVANAGERE 577002

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…RESPONDENTS

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(BY SRI.M.R. RAJAGOPAL SENIOR ADVOCATE APPEARING FOR SRI. N. RAMAKRISHNA, ADVOCATE FOR R-1 SMT. VAISHALI HEGDE, ADVOCATE FOR R-2 SMT. SHOBHA.K, HCGP FOR R-3 & R-4)

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THIS MFA IS FILED U/S.38 OF KARNATAKA MUNICIPAL CORPORATIONS ACT, AGAINST THE JUDGMENT DT.17.12.2022 PASSED IN E.P.NO.3/2019 ON THE FILE OF THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAVANGERE, ALLOWING THE PETITION FILED U/S.33 OF KARNATAKA MUNICIPAL CORPORATION ACT, 1976.

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IN W.P. No. 19540/2022

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BETWEEN:

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SRI UDAY KUMAR H S/O HANUMANTHAPPA K AGED 38 YEARS R/AT NO 1249, 4^TH CROSS BEHIND KOOGU DURGAMMA TEMPLE GANDHINAGARA LAYOUT DAVANAGERE 577 001.

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…PETITIONER

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(BY SRI. PROF. RAVIVERMA KUMAR, SENIOR ADVOCATE APPEARING FOR SRI. KASHINATH S.D., ADVOCATE)

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3 - MFA No. 11 of 2023 C/W WP No. 19540 of 2022

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AND:

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THE COMMISSIONER KARNATAKA STATE ELECTION COMMISSION R/O # 8, 1^ST FLOOR, BEHIND BUILDING OF KARNATAKA STATE CO-OP. SALES BOARD CUNNINGHAM ROAD, BENGALURU – 560 052.

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THE DISTRICT CHIEF ELECTION OFFICER AND DEPUTY COMMISSIONER KIADB INDUSTRIAL ESTATE ZILLADALITHA BHAVAN, DAVANAGERE DAVANAGERE DISTRICT – 570 001.

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THE RETURNING OFFICER - WARD NO. 45, DAVANAGERE CITY MUNCIPAL CORPORATION ELECTION, ZILADALITHA BHAVAN, ROOM # 45 KIADB INDUSTRIAL ESTATE DAVANAGERE – 570 001.

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ANANDAPPA S/O LATE MARAPPA AGED ABOUT 52 YEARS R/O NO. 305, 2^ND CROSS, S.M. KRISHNANAGAR, NEAR RTO DAVANAGERE – 577 006.

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…RESPONDENTS ( BY SMT. VAISHALI HEGDE, ADVOCATE FOR R-1 SMT. SHOBHA.K, HCGP FOR R-2 & R-3 SRI. M.R. RAJAGOPAL, SENIOR ADVOCATE APPEARING FOR SRI. N. RAMA KRISHNA, ADVOCATE FOR R-4)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS PERTAINS TO IA NO. VII FILED IN E.P. NO. 3/2019 PENDING ON THE FILE OF THE 1^ST ADDITIONAL DISTRICT AND SESSION JUDGE AT DAVANAGERE AND QUASH THE ORDER DTD: 04.12.2021 PASSED ON I.A. NO. VII, FILED IN E.P. NO. 3/2019 PASSED BY THE 1^ST ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAVANAGERE AS PER ANNEXURE-A AS ILLEGAL CONTRARY TO LAW.

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THIS APPEAL AND PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE/DELIVERED THE FOLLOWING:

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MFA No. 11 of 2023 C/W WP No. 19540 of 2022

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JUDGMENT

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This appeal is directed against the impugned order dated 17.12.2022 passed in E.P.No.3/2019 by the I Addl.District and Sessions Judge, Davangere, whereby the said Election petition filed by the 1^st respondent – petitioner was allowed by the trial court, thereby declaring that the election of the petitioner as returned candidate to the Ward No.45 of Davangere City Corporation as per Election Certificate, was null and void and consequently, declaring the 1^st respondent as the returned candidate from the said ward under Section 33 of the Karnataka Municipal Corporations Act, 1976 (for short ‘the said Act of 1976’).

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The material on record discloses that in the elections conducted on 12.11.2019, the petitioner was a successful candidate having scored highest number of votes, while the 1^st respondent secured second highest number of votes. Subsequent to the declaration of the results declaring that the petitioner was the successful candidate, the 1^st respondent filed the instant Election petition seeking the following reliefs:-

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“ a) To Declare the candidature of the 4^th Respondent as null and void, and

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5 - MFA No. 11 of 2023 C/W WP No. 19540 of 2022

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b) To Declare the Petitioner as winning candidate for Ward No. 45 of Davanagere Mahanagara Palikhe in the interest of justice and equity.

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c) Pass any order or orders or direction or any other identical relief available at the disposal the Petition with cost of this suit, in the interest and equity.

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d) To grant such other relief as this Hon’ble Court deems fit to grant in the facts and circumstances of the case in the interest of justice and equity.”

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The said Election petition was opposed by the appellant as well as the other respondents. During the pendency of the proceedings, the petitioner filed an application under Order 7 Rule 11 CPC seeking rejection of the Election petition on the ground that the same was barred under Sections 33 and 34 of the said Act of 1976.

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The said Election petition having been opposed by the 1^st respondent, the trial court proceeded to pass an order dated 04.12.2021 rejecting I.A.No.7 filed by the petitioner. The said order has been challenged by the petitioner in W.P.No.19540/2022. Since there was no interim order passed by this Court in W.P.No.19540/2022 referred to supra, the trial court proceeded

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6 - MFA No. 11 of 2023 C/W WP No. 19540 of 2022

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further in the matter and recorded the evidence of 1^st respondent (PW-1) and after he was cross-examined by the petitioner, the trial court posted the matter for evidence of the appellant and subsequently, after noting that the appellant did not adduce any oral or documentary evidence, the trial court passed the impugned order allowing the Election petition, aggrieved by which, the appellant has preferred the present appeal.

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Heard learned Senior counsel for the appellant and learned Senior counsel for the 1^st respondent and perused the material on record.

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In addition to reiterating the various contentions urged in the appeal and referring to the material on record, learned Senior counsel for the appellant invited my attention to the averments made in the Election petition and the prayer column, in particular, in order to point out that there is no challenge to the election of the appellant and the challenge is limited and restricted to the candidature of the petitioner, which is not a sufficient or substantive relief to be sought for in an Election petition in the light of Section 34 of the said Act of 1976.

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MFA No. 11 of 2023 C/W WP No. 19540 of 2022

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6.1 It is further pointed out that Section 33(3) of the said Act of 1976, mandates that the 1^st respondent – election petitioner has to implead all the candidates to the application / petition and present election petition impleading only the appellant – successful candidate, without impleading the other candidates was bad for non-joinder of necessary parties and was not maintainable on this ground also and the same was liable to be dismissed.

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6.2 It is further submitted that though the appellant did not adduce any oral or documentary evidence in support of his defence, in view of the aforesaid clear statutory bar to maintain the Election petition, the trial court clearly fell in error in allowing the Election petition and declaring the election of the appellant as null and void even without a prayer sought for by the 1^st respondent – election petitioner in an Election petition. It is therefore submitted that the impugned order passed by the trial court allowing the election petition filed by the 1^st respondent deserves to be set aside.

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Per contra, learned Senior counsel for the 1^st respondent submits that so long as the 1^st respondent was aggrieved by the candidature of the appellant, in as much as he was holding the

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MFA No. 11 of 2023 C/W WP No. 19540 of 2022

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office of profit at the time of filing the nomination, merely because the 1^st respondent had not in so many words sought for cancellation or termination of the election of the appellant, the same cannot be made the basis to come to the conclusion that the election of the appellant itself was not challenged. It is further submitted that a perusal of the averments made in the election petition and the reliefs sought for by the 1^st respondent will indicate that there was substantial compliance of Sections 33 and 34 of the said Act of 1976 and the trial court was fully justified in passing the impugned order allowing the election petition, particularly when the appellant had not adduced any oral of documentary evidence to rebut the claim of the 1^st respondent. It is therefore submitted that the impugned order passed by the trial court does not warrant interference by this Court in the present appeal and the same is liable to be dismissed.

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Before adverting to the rival contentions, it would be necessary to extract Sections 33 and 34 of the Karnataka Municipal Corporations Act, 1976, which reads as under:-

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“ 33. Election petition.- (1) No election of a councillor shall be called in question except by an election petition presented for adjudication to the District Court

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MFA No. 11 of 2023 C/W WP No. 19540 of 2022

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having jurisdiction, within thirty days from the date of the publication of the result of election under section 32.

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(2) An election petition may be presented on one or more of

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the grounds specified in section 35,-

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(a) by any candidate at such election; or

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(b) by any voter of the concerned.

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(3) A petitioner shall join as respondents to his petition all

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the candidates at the election.

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(4) An election petition,-

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(a) shall contain a concise statement of the material

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facts on which the petitioner relies;

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(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and

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(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Central Act 5 of 1908) for the verification of pleadings.

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(5) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date of presentation of the election petition under sub-section (1):

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Provided that where the petitioner alleges any corrupt practice the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.

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(6) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.

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34. Relief that may be claimed by the petitioner.- A petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected.”

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A plain reading of Section 33 (3) of the said Act of 1976 will clearly indicate that it was incumbent upon the 1^st respondent to implead all the candidates to the subject election; in the instant case, it is an undisputed fact that except impleading the appellant – successful candidate, the 1^st respondent had not impleaded all the other candidates and consequently, in view of the mandate contained in Section 33(3), which required the other candidates at the elections to be impleaded as both necessary as well as proper parties to the election petition, the said defect having not been cured by the 1^st respondent during the pendency of the proceedings, I am of the considered opinion that the election petition was not maintainable and bad for non-joinder of all proper and necessary parties and on this ground alone, the election petition is liable to be dismissed.

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MFA No. 11 of 2023 C/W WP No. 19540 of 2022

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A perusal of the impugned order passed by the trial court will indicate that the trial court has noticed that all the candidates had not been made as parties to the election petition as required under Section 33(3) of the said Act of 1976; however, the trial court has purported to over come the said lacuna by stating that the 1^st respondent who had challenged the election of the appellant and consequently, the remaining candidates need not be arrayed / impleaded as parties. This finding is factually incorrect, in as much as a perusal of the prayer column and the election petition will indicate that the 1^st respondent has challenged only the candidature of the appellant and not the election of the appellant and consequently, the said reasoning and finding recorded in the impugned order is not only contrary to the material on record but also contrary to Section 33(3) of the said Act of 1976 and the same deserves to be set aside.

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A conjoint reading of the averments made in the election petition as well as prayers will indicate that the challenge put forth by the 1^st respondent is restricted and limited to the candidature of the appellant and there is neither any claim nor any prayer / relief

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MFA No. 11 of 2023 C/W WP No. 19540 of 2022

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sought for by the 1^st respondent for a declaration that the election of the appellant – successful candidate is null and void. In this context, a perusal of Section 34 clearly indicates that declaration of the 1^st respondent is duly elected is only consequent upon obtaining a declaration that the election of the appellant – successful candidate was null and void and in the absence of specific prayers / reliefs sought for by the 1^st respondent that the election of the appellant was null and void in terms of Section 34 of the said Act of 1976 and consequently, the trial court clearly misdirected itself in passing the impugned order declaring that the election of the appellant was null and void and setting it aside without there being any pleading or a prayer or proof in this regard.

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It is well settled that moulding the relief by the Court is permissible only on the basis of necessary foundational facts, pleadings and proof. In the absence of any pleadings or evidence to the effect that the appellant’s election was null and void and deserved to be set aside, the trial court clearly fell in error in declaring the election of the appellant as null and void and setting it aside and under these circumstances also, the impugned order passed by the trial court deserves to be set aside.

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MFA No. 11 of 2023 C/W WP No. 19540 of 2022

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In the result, I pass the following:-

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ORDER

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(i) M.F.A.No.11/2023 is hereby allowed.

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(ii) The impugned order dated 17.12.2022 passed in E.P.No.3/2019 by the I Addl.District and Sessions Judge, Davangere, is hereby set aside.

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(iii) The Election Petition No.3/2019 filed by the 1^st respondent is hereby dismissed.

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(iv) In view of disposal of M.F.A.No.11/2023, W.P.No.19540/2022 does not survive for consideration and the same stands dismissed.

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Sd/-

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JUDGE

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Srl.

Sri Uday Kumar H v. Sri Anandappa

Case brief

What is this about?

What did the court decide?

Sri Uday Kumar H v. Sri Anandappa

Case brief

What is this about?

What did the court decide?

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