Jayashree and Others vs The Election Commissioner and Others

A.S. Bopanna, J.—The petitioners are before this Court assailing the declaration of respondent No. 7 as the Returning Candidate for the post of President of Gram Panchayat, Deodurga Taluk, Raichur District. In that light, the petitioners are seeking for issue of mandamus to direct respondent No. 4 to conduct elections afresh to the post of President of Gram Panchayat, Deodurga Taluk.

The petitioners are the elected members of the Gram Panchayat. Petitioner No. 1 and respondent No. 7 had thereafter contested for the post of President to the said Gram Panchayat. Respondent No. 7 had been elected in the said election on a margin of securing one vote more than the vote secured by petitioner No. 1.

The case of the petitioners is that petitioners No. 2 and 3 were deliberately prevented from casting their votes in the election which was scheduled on 16.06.2015. In that regard, the petitioners contend that in respect of a case registered in Cr. No. 137/2015 though the offences as stated therein under the provisions cannot be held against petitioners No. 2 and 3, the jurisdictional Police have deliberately arrested petitioners No. 2 and 3 just prior to the election process being commenced. It is contended that such action of arresting petitioners No. 2 and 3 is with malafide intention so as to see that respondent No. 7 is elected and petitioner No. 1 is defeated. In that light, it is contended that entire election process would stand vitiated since on learning about the arrest of petitioners No. 2 and 3, the Returning Officer was required to postpone the election and not having done so, the entire process should be set aside and elections should be conducted afresh.

Having taken note of the contention as put forth on behalf of the petitioners, at the outset, it is necessary to notice that once the election process is completed and declaration of the result is made, the Karnataka Panchayat Raj Act under Section 45(2) provides that a person aggrieved can file an election petition in the manner as has been provided therein.

Learned counsel for the petitioners would however contend that though in a normal circumstance that would be the position in law, since in the instant case, the malafide action is writ large and when such brazen act is committed by the officials in connivance with the political interest, this Court is required to exercise its discretion under Article 226 of the Constitution of India.

The learned counsel in that regard has placed reliance on the decision of the Hon''ble Supreme Court in the case of Jayrajbhai Jayantibhai Patel Vs. Anilbhai Jayantibhai Patel and Others, . With reference to the said decision, it is pointed out that in the said case, the interference as made by the High Court while exercising the power under Article 226 has been upheld by the Hon''ble Supreme Court when it was noticed that the elected members were arrested just prior to the election which had a bearing on the result of the election.

In view of the said contention, I have perused the judgment cited by the learned counsel for the petitioners. It is no doubt true that in the said case, the Hon''ble Supreme Court has taken into consideration that aspect of the matter. However, what is also to be taken into consideration is that the political interest as has emerged in the said case was taken into consideration and it was noticed that the FIR was registered on 05.11.2005 just prior to the election meeting which had been scheduled on 08.11.2005 at 1 p.m. and arrest of the members of the Councillors of the Municipality having particular affiliation had been made.

Firstly, what is necessary to be noticed is that in distinction to the said position, in the instant facts, the complaint had been lodged on 06.06.2005 and such compliant as lodged is not only against petitioners No. 2 and 3 as elected members, but was a complaint against 24 persons against whom allegations were made. It is in that light, the process of law had been set in motion.

The contention on behalf of the respondents is that petitioners No. 2 and 3 had absconded after the complainant was filed and they were not in a position to arrest them earlier. But in any event, when the law had been set in motion, the arrest had to be made and as such, there is no mala fide action taken.

With regard to the correctness or otherwise of the action taken against petitioners No. 2 and 3, there is no need to advert further in this petition. However, the said fact has been referred only to notice that such complaint in the instant case had been made by a person who was not elected as a member of a Gram Panchayat, but had made such complaint against about 24 persons including Petitioners No. 2 and 3 and in that regard, the law had been set in motion. In the Gram Panchayat Membership, there is no direct Political Party recognition provided.

Hence, the instant case is not one such case where the discretion under Article 226 is to be exercised, but still if the petitioners are aggrieved by the manner in which the elections have been held and any grievance still subsist with regard to the election of respondent No. 7, the petitioners certainly can avail their remedies as provided under Section 45(2) of the Karnataka Panchayat Act as indicated above. Since the petitioners are now being relegated to the alternate remedy and since the petitioners were pursuing remedy before this Court, the petitioners may seek exclusion of time by filing an appropriate application before the Election Tribunal which may consider the same in accordance with law.

Reserving such liberty to the petitioners, the petition stands disposed of.