Dyamawwa vs Rekha and Another

Chandrashekaraiah, J.—The Petitioner in this writ Petition has challenged the order of the District Judge, Gadag in Election Appeal No. 1/2002 vide Annexure ''E''.

On the election petition filed by the Petitioner, the learned Civil Judge (Senior Division) Gadag, passed an order directing for recounting of votes, having found that there are several irregularities while counting the votes. This Court, on 30.7.2003 passed an order by consent of the parties which reads as follows:

Learned Counsel for the Petitioner and Respondent-1 agreed for recounting of the votes polled in the election held on 2.6.2000 and further submits that they would abide by the recounting. In view of this submission, I direct the Assistant Commissioner of Gadag Taluk to recount the votes polled and submit the report to this Court in the presence of the Petitioner and Respondent-1 within four weeks from today. The Petitioner and Respondent-1 are directed to appear before the Assistant Commissioner, Gadag, on 11.8.2003 and collect the date of recounting and thereafter, be present at the time of counting of votes without expecting any notice on the date to be fixed by the Assistant Commissioner, Gadag.

Office is directed to send a copy of the order to the Assistant Commissioner, Gadag forthwith.

Post this petition for further orders after the receipt of the report from the Assistant Commissioner, Gadag.

By reading of this order, it is clear that both the parties agreed to abide with the result of re-counting. In view of this agreement, I directed the Assistant Commissioner, Gadag to re-count the votes and submit the report. Pursuant to that, the Assistant Commissioner, Gadag has submitted the report after re-counting the votes, in the presence of the parties. As per the re-counting, the Petitioner secured 2371 votes whereas, the 1st Respondent secured 2262 votes.

The learned Counsel appearing for the 1st Respondent submitted that this Court has no jurisdiction to declare the result on the basis of the re-counting of votes in a writ petition filed under Article 226 and 227 of the Constitution of India. He further submitted that, under Article 243(o) this Court has no jurisdiction to interfere in the election process. Under Article 223(o) the Court normally shall not interfere in the election process. But, in the instant case, the said provision has no application to the facts of this case. The facts of this case are, availing the Statutory remedy provided under the Act, the Petitioner has filed election petition challenging the declaration of the result declaring the 1st Respondent as elected as a member of the Taluk Panchayath Gadag. In the said election petition, after hearing, the learned Civil Judge, (Sr. Divn.) Gadag ordered for re-counting as he had found certain irregularities while counting the votes. As against that, this writ petition has been filed.

The power that can be exercised in this writ petition is a power conferred on this Court under Articles 226 and 227 of the Constitution of India i.e., the power of superintendance. If that is so, this Court can examine the correctness or otherwise of the order passed by the Court, on which the power has been confirmed to decide the election petition. Therefore, there is no substance in the contention of the learned Counsel for the Petitioner regarding maintainability of the writ petition. This Court by consent of the parties passed the order for re-counting. Further, the parties have also consented to abide by the result of recounting. If that is so, in view of this consent, it is just and necessary for this Court to declare the Petitioner as a duly elected candidate to the post of the member of the Taluk Panchayat Gadag after declaring the election of the 1st respondent as illegal and void. Accordingly, I pass the following order:

(a) Writ Petition is allowed.

(b) The impugned order is modified as follows:

(i) The election of the 1st R espondent to the post of the member of the Taluk Panchayath, Gadag is declared as illegal and void.

(ii) The Petitioner is declared as elected candidate to the post as a member of the Taluk Panchayat, Gadag.

(c) No cost.