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Judgment
The appellant herein has challenged the correctness of the order of the learned Single Judge of this Court dated 26.9.2007 passed in W.P. 5862/06 (APMC) declining to interfere with the order of the learned Prl. Civil Judge (Jr.Dn.), Davanagere, (hereinafter referred to as ''Trial Judge'') dated: 23-02-2006 dismissing the Election Misc. Petition No. 4/2005 that was filed by the appellant and also the said order of the Trial Judge.
Stated in brief the case of the appellant as averred in his petition tiled u/s 20 of the Karnataka Agricultural Produce Marketing (Regulation) Act, 1966 (hereinafter referred to as "the Act") are as under:
a) The appellant and the respondent Nos. 3 to 5 (who were respectively the petitioner and respondents-3 to 5 in the election misc. petition) contested the election held on 29.8.2005 to the post of Director of second respondent APMC, Davanagere, from No. 9, Anagodu constituency . The first respondent Tahsildar of Davanagere was the Returning Officer to the said election. The nominations of the appellant and the respondent Nos. 3 to 5 were in order. Elections were held on the said date under the supervision of first respondent Returning Officer.
b) The said constituency had in all 9 polling stations namely Anagodu, Bhavehal, Naraganahalli, Lakkamuthenalli, Hebbal, Haluvarthi Nerlige, Kandanakovi and Mandanur. Totally 3530 voters cast their votes on the said date at all the 9 polling stations together. After the polling was over the number of ballot papers used for voting and those remained unused were duly accounted by the concerned officer at each polling station in form No. 22 as required under Rule 30 of the Agricultural Produce Marketing (Regulation) Rules, 1968 (hereinafter referred to as "the Rules").
c) Counting of votes was held on 31-08-2005 by the Returning Officer in the presence of the contesting candidates. After the ballot boxes from the respective polling stations were opened counting of the votes was commenced but the number of ballot papers recorded in form No. 22 were not tallied with the number of ballot papers recorded in form No. 23.
d) From out of total 3530 votes from all the 9 polling stations, 49 votes were found invalid, the appellant was found secured 1285 votes, the respondent No. 3 secured 128''2 votes and respondent Nos. 4 and 5 secured respectively ''299 and 615 votes. Having found that the appellant had secured 3 votes more than the votes secured by the third respondent, the first respondent Returning Officer, instead of declaring the appellant elected, went inside his chambers with 4 ballot papers which were cast in flavour of the appellant. At that time first respondent received telephone call to the effect that the third respondent candidate who was supported by Congress-1 party should be declared elected by hook or crook. Therefore the first respondent prepared another form No/23 mentioning therein that totally 3526 ballot papers were found from ail the ballot boxes, resulting in shortage of 4 ballot papers.
e) Immediately after noticing the same the appellant filed his protest petition at about 12.30 p.m. on that day itself before the first respondent Returning Officer requesting him to recount the votes in terms of the votes found in form No/2/2. The first respondent, on receipt of the said petition, instead of resorting to Rule 37 of the Rules, took out form No. 23 which was earlier prepared mentioning therein the total number of ballot papers found in the ballot boxes as 3530 and replaced it with another form No/23 mentioning therein the total number of ballot papers as 3526 showing that 4 ballot papers were short.
f) Immediately on noticing the above acts of the first respondent, the appellant and his agent filed protest petition on the same day but the first respondent did not consider the same but announced the results of the elections illegally declaring that the third respondent was elected. Therefore, the appellant filed the said Election Misc. Petition No. 4/05 before the Trial Judge seeking the declaration that the election of the third respondent to the post of Director of second respondent APMC from No. 9, Anagodu constituency is void and, that the appellant be declared elected to the said post.
The first respondent-Tahsildar-Returning Officer filed his written objections to the election petition and the second respondent APMC adopted the same. The contentions of the first respondent in the said objections are as under:
i) In all the 9 polling stations totally 3530 voters cast their votes and the details in respect of the same were mentioned in Form No. 22 in respect of each polling station, at Annexures-2 to 10, as required under Rule 30 of the Rules. Counting of votes was held in accordance with the provisions of Rules 35 and 37 of the said Rules. The ballot boxes from all the 9 polling stations were opened in the presence of the candidates and their agents after verifying the seal that was put to each box and then the ballot papers from each box were counted separately. Totally 3526 ballot papers were found from all the ballot boxes.
ii) All the said 3,526 ballot papers were taken into consideration as provided under Rule 35(4) of the Rules and Form No. 23 was prepared mentioning therein the number of ballot papers found in each ballot box pertaining to respective polling station. Annexure-12 is the copy of Form No. 23. No mistake occurred as alleged by the petitioner at para No. 4 of his petition.
iii) Counting was held legally and impartially. From out of 3,526 votes the Appellant N.G. Puttaswamy was found secured 1,281 votes and the other two candidates namely 4th respondent Mallikarjunappa and 5th respondent Mahendra Kumar were found secured respectively 299 and 615 votes and 49 votes were rejected as invalid. Since the 3"1 respondent H.K. Virupakshappa got one vote more than the appellant Puttaswamy, the former was declared elected. The allegations at para 5 of the petition that before declaring the results of the election the first respondent talked over phone with political parties and illegally declared the third respondent elected are false.
iv) Though the petitioner sought for recounting, his request was not considered because, as per the regulations, neither the candidate nor his agent had raised any objection during the counting of the votes. Accordingly first respondent issued endorsement Annexures-2 to 12 establish that the first respondent followed the provisions of Rules 35 and 37 of the Rules in the process of counting of the votes. The first respondent never colluded with the third respondent as alleged by the petitioner (appellant).
v) Though 3,530 ballot papers were given to the voters at the polling stations only 3,526 ballot papers were found from all the ballot boxes taken together. Therefore, 4 voters, after receiving the ballot papers might not have put them into the respective ballot boxes.
In order to substantiate his case the appellant-petitioner got examined himself and 4 other witnesses for him as P.Ws. 1 to 5. Respondents did not choose to adduce on their behalf any evidence, either oral or documentary. Based on the oral evidence of RWs.l to 5, and the documents Exs.Pl to P16 the learned Trial Judge, by order dated: 23-02-2006, dismissed the election petition of the appellant Aggrieved by the said order of dismissal the appellant filed W.P. No. 5862/06 (APMC) which came to be dismissed by the learned single Judge of this Court by order dated 26.9.2007 holding that the appellant did not exhaust the alternative remedy of appeal provided under the Act. Therefore the appellant has challenged in this writ appeal both the orders of the learned single Judge and the learned Prl. Civil (Jr.Dn.), Davanagere.
We have heard the arguments of Sri Ko. Channabasappa, the learned Senior Counsel for the appellant, Sri Gangadhar Sangolli, the learned AGA representing respondents-1, Sri C.S. Patil, and Sri. A.L. Premakumar, the learned advocates for respondent Nos. 2 and 3 respectively. Respondent Nos. 4 and 5 have remained absent In view of the rival contentions urged by the learned Counsels for the parties, the following points arise for our consideration:
Point No. l: Whether the writ petition is maintainable, when the petitioner has not availed the alternative remedy of appeal provided u/s 26 of APMC Act ?
(When the rule is issued by this Court in the writ petition whether the same is required to be decided on merits?)
Point No. 2: Whether the findings recorded by the Civil Judge (Jr.Dn.) in the impugned order are either erroneous or error in law?
Point No. 3: Whether the appellant has made out a ground for declaring the election of the respondent No. 3 void and to declare him elected as per Section 20(a) of the APMC Act.
Our findings on these points are in the ''affirmative'' for the following
REASONS
Point No. 1: At the outset, Sri Ko. Channabasappa, the learned Senior Counsel for the appellant submitted that the learned Single Judge was not justified in dismissing the writ petition of the appellant and thereby declining to interfere with the order of the dismissal of election petition by the learned Trial Judge, on the ground that the appellant did not avail the alternative remedy of appeal provided under the Act. Per contra, justifying the impugned order of the learned single Judge, the learned AGA and also the learned Counsels for contesting respondents, referring to Section 26 of the Act contended that the learned Single Judge was quite justified in dismissing the writ petition on the said ground.
Section 26 of the Act provides that any person aggrieved by any decision or any order of the Munsiff [now Civil Judge (Jr.Dn.)) passed under Sections 20, 23 or 25 may, within 30 days from the date of such decision or order, appeal to the District Judge within whose territorial jurisdiction the market area concerned is situate and the decision of the District Judge on such appeal shall be final and conclusive. Thus it is clear from this provision that the appellant herein had an alternative remedy of appeal against the impugned order passed by the learned Trial Judge dismissing the election petition of the appellant filed u/s 20 of the Act but the appellant, instead of availing the same, approached this Court by filing the said writ petition.
On perusal of the grounds stated by the appellant in his election petition before the learned Trial Judge and also in the writ petition, it could be seen that serious allegations of fraud, material illegality and favouritism towards the 3rd respondent are alleged against the first respondent Tahsildar who was Returning Officer and under whose supervision and control the polling and also the counting of votes took place. Further, it is also alleged against him that he hurriedly and fraudulently declared the third respondent as the returned candidate by a majority of single vote in gross violation of the relevant provisions of the Act and the Rules thereunder, without considering the request of the appellant candidate for recounting the votes when 4 votes (ballot papers) allegedly shown as short/missing. Besides this it is alleged by the appellant candidate that the Returning Officer replaced the original form No. 23 with a new one created by him falsely showing that there was shortage/missing of 3 ballot papers from one ballot box and one ballot paper from another ballot box pertaining to Kandanakovi and Haluvarthi polling stations respectively. It is also alleged that having found that the appellant had secured only 1285 votes and the third respondent had secured 1282 votes the said four votes were fraudulently shown as missing from the said ballot boxes just to declare the third respondent elected by majority of Vine vote''.
if the above allegations made by the appellant candidate against the first respondent Returning Officer, who was required to act fairly and impartially in conducting the counting of the votes, are found proved, it has to be held that the first respondent, being a responsible officer, acted in gross violation of principles of natural justice and also quite unfairly towards the appellant. It is the settled principle that in a case where there is violation of the principles of natural justice and where the statutory authorities do not act fairly, impartially and transparently in matters like this, the availability of alternative and efficacious remedy to the petitioner by way of statutory appeal for challenging the legality and correctness of an order affecting his fundamental and statutory rights, would not be a bar for this Court to exercise its extraordinary jurisdiction under Article 226 and supervisory jurisdiction under Article 227 of the Constitution of India. Further, it is observed by the Hon''ble Supreme Court at para No. 3 of its judgment in the case of Durga Enterprises (P) Ltd. and Anr. v. Principal Secretary, Govt. U.P. and Ors. reported in (2004) 13 SCC 665, relied upon by the learned Sr. Counsel for the appellant, as:
The High Court, having entertained the writ petition, in which pleadings were also complete, ought to have decided the case on merits instead of relegating the parties to a civil suit.
Further, the Division Bench of this Court has observed in the case of Karnataka State Road Transport Corporation, Bangalore and Anr. v. Karnataka State Transport Authority and Anr. reported in AIR 1984 KAR 4, as under:
Even where an equally efficacious alternative remedy exists, where, however, fundamental rights are affected; where rules of natural justice are violated; or where there is a failure on the part of the authority concerned to confine itself within the bounds of its legitimate jurisdiction or where there is a failure to exercise a jurisdiction vested in it or where there is an error of law apparent on the face of the record, a person aggrieved can invoke the extraordinary jurisdiction of this Court under Article 36 without reference to any remedy however efficacious it be. The existence of an alternative remedy does not oust the jurisdiction of the High Court under Article 226. The rule that the court does not entertain a petition under Article 226 when there is an equally efficacious alternative remedy is not a rule of law; but is a principle the courts have evolved for the guidance of their own discretion.
Following the aforesaid judgments, we are of the considered view that the learned single Judge was not justified in dismissing the writ petition of the appellant on the ground that he did not exhaust the alternative remedy of appeal. Hence Point No. 1 is answered in the ''affirmative''.
Point Nos.2 and 3: Having held that the learned Single Judge was not justified dismissing the writ petition of the appellant, we have now to examine whether the learned Trial Judge was justified in dismissing the election petition of the appellant. As to merits of the case, Sri Ko. Channabasappa, the learned Senior Counsel for the appellant, strongly contended that in view of the undisputed fact that in total, 3,530 ballot papers were issued to the voters at all the 9 polling stations together and all the said ballot papers were polled as mentioned in Exs.Pl to P9 the forms No. 22, that were prepared in accordance with the provisions of Rule 30 of the Rules by the Presiding Officer of the respective polling stations immediately after the polling and, in the absence of any report of Presiding Officer as to the incident of fraudulent taking away of any of the ballot papers issued to the voters at any of the 9 polling stations during the process of polling and also in view of the fact that before commencing the counting of the votes, the Returning Officer found that the seal that was put to each ballot box by the Presiding Officer of the respective polling station was intact and as such there was no tampering of any of the ballot boxes, there could be no occasion for the alleged shortage or missing, of any ballot paper from any ballot box as contended by the Returning Officer.
Sri Ko. Channabasappa, learned Sr. Counsel further contended that even if it is assumed that there was missing of four ballot papers, it was for the first respondent Returning Officer to ascertain from the respective Presiding Officer of the respective polling stations before proceeding to count the votes as to how, when and under what circumstances those ballot papers could be missed from ballot boxes, but it was not for the appellant to explain the same. While contending so, he further urged that despite there being positive evidence of P.Ws. 1 to 5 on behalf of the appellant that the first respondent Returning Officer, after having found that the appellant had secured 1,285 votes and the nearest rival candidate i.e., respondent No. 3 had secured 1,282 votes, in order to fraudulently declare the 3"1 respondent elected, the Returning Officer kept aside without taking into account 4 ballot papers (votes) which were cast in favour of the appellant and prepared a false form No. 23 showing therein that 4 ballot papers were found short/missing from the said ballot boxes, the learned ''Mai Judge committed serious error in dismissing the election petition of the appellant without considering this important and relevant material fact which determines the real controversy that has arisen in this case.
As against the above contentions of the learned Senior Counsel for the appellant, the learned AGA and also the learned Counsels for the contesting respondents urged that the Writ Petition filed by the Appellant is not maintainable in law, as he had an alternative remedy of appeal u/s 26 of the Act but the same is not availed by him and therefore the impugned order passed by the learned single judge is legal and valid. They further contended that, the appellant failed to establish that all the 3,530 votes were found from all the ballot boxes taken together and, after finding that the appellant had secured 1,285 votes and 3rd respondent had secured 1,282 votes, the first respondent falsely prepared form No. 23 showing therein shortage of 4 ballot papers (votes), only with a view to declare the third respondent elected and therefore the learned Trial Judge rightly dismissed the election petition of the appellant.
The facts that the Appellant and respondents-3 to 5 validly contested the election to the post of Director of second respondent APMC from No. 9, Anagodu constituency, which was held on 29.8/2005 and that at all the 9 polling stations of the said constituency polling was held on that day legally in accordance with the relevant provisions of the Act and the Rules and also that when all the ballot boxes were examined by the first respondent Returning Officer in the presence of all the contesting candidates and their respective agents before commencing the counting of the votes on 31.08.2005 the seal put to each ballot box was found intact are all not disputed. Further, it is also not in dispute that Form No. 22, in respect of each of the 9 polling stations, was duly prepared, as required under Rule 30 of the Rules, by the Presiding officer of the respective polling station immediately after the polling was over on that date of polling mentioning therein the number of ballot papers received by the Presiding Officer, the number of ballot papers remained unused and also the number of ballot papers that were issued to the voters. Exs.P1 to P9 produced by the appellant are the authenticated Photostat copies of form No. 22 prepared by the Presiding Officer of the respective polling stations and their contents are not in dispute inasmuch as these very documents are relied upon by the above respondents also. The contents of all these documents at Exs. P. 1 toP.9 establish that totally 3,530 ballot papers were issued to the voters at all the 9 polling stations of the constituency taken together.
Ex. P10 is the authenticated copy of Form No. 23 which contains the details of ballot papers found at the time of counting in each of the 9 ballot boxes pertaining to the respective polling stations. It reveals that total number of ballot papers found at the time of counting from, all the 9 ballot boxes together was 3,526 resulting in shortage/missing of 4 ballot papers which were polled. On comparing the contents of Ex. P10, with contents of Exs.Pl to P9 (Forms No. 22) it is seen that as mentioned in Ex.P-6, pertaining to Haluvarthi polling station, 278 ballot papers were issued to the voters and the same were polled, but, as mentioned in Ex.P10, only 277 ballot papers were found, at the time of counting, from the ballot box pertaining to the said polling station resulting in shortage/missing of one ballot paper. Similarly as mentioned in Ex.P-8, the form No/22 pertaining to Kandanakovi polling station, 462 ballot papers were issued to the voters and the same were polled, but, as mentioned in Ex.P 10 form No. 23, only 459 ballot papers were found at the time of counting from the ballot box pertaining to the said polling station resulting in shortage/ missing of 3 ballot papers. Thus it is clear that totally 4 ballot are shown In Ex.P.10 Porn No. 23 as abort/missing, one from the ballot box pertaining to the Haluvarthi polling station and 3 from the ballot box pertaining to Randanakovi polling station.
As to the alleged shortage/missing of the said 4 ballot papers it is the case of the appellant candidate, as averred and also as deposed by him and his witnesses viz., PWs. 2 to 5, in their evidence, that the first respondent Returning Officer, having found that this appellant had secured 1,285 votes and the nearest contesting candidate i.e., third respondent had secured 1,282 votes, with a view to declare the third respondent elected, directed by the leaders of the Congress I-party over phone, kept aside 4 votes which were cast in favour of the appellant and prepared a new form No. 23 showing therein that there were totally 3,526 votes only resulting in shortage/missing of 4 votes, 3 from the ballot box pertaining to Randanakovi polling station and 1 from the ballot box pertaining to Haluvarthi polling station and thereby reduced the number of votes secured by the appellant from 1,285 to 1,281 and then declared the 3rd respondent elected by a majority of ''one vote''.
None of the respondents has chosen to adduce any evidence, oral or documentary, challenging the above case of the appellant by rebutting the said evidence of P.Ws. 1 to 5. it is simply stated by the first respondent in his objections to the election petition that though 3,530 ballot papers were given to the votes at the polling stations, at the time of counting, only 3,526 ballot papers were found from all the ballot boxes together and the said shortage might be for the reason that after receiving the ballot papers the voters might not have put them into the ballot boxes at the respective polling stations, which is not the case of the Presiding Officers of the said above polling stations. Except this vague statement in the said objections no other material is produced by any one of the respondents, including the first respondent Returning Officer, explaining as to how, when and under what circumstances there could be the alleged shortage/missing of 4 ballot papers.
Rule 24 of the Rules provides for polling arrangements to be made at the polling stations and the manner of recording the votes there at Rule 24(3) provides that immediately before the commencement of the poll the Presiding Officer shall demonstrate to the contesting candidates, their agents, or the persons as may be, present at the polling station that the ballot box is empty and shall then affix a label to the box marked with the serial number, if any, and the name of the constituency; serial number and name of the polling station; serial number of the box and the date of poll and then lock the box and seal it with his seal and the seals of the contesting candidates or their agents, if they so desire, and the said seal shall be affixed in such a manner that it is not possible to open it without breaking it. Sub-rule (4) of Rule 24 further provides that thereafter the sealed ballot box shall be placed in full view of the Presiding Officer and the agents of the candidates. Sub-rule (9) of Rule 24 further provides that the voter, on receiving the ballot paper, shall forthwith proceed to the polling booth set up in the polling station and there, make a mark on the ballot paper with the instrument supplied for the purpose, against the name of the candidate or candidates for whom he desires to vote and then fold the ballot paper and insert it into the ballot box.
Further, Section 35(1) of the Act provides that any person, who, at any election, fraudulently takes or attempts to take any ballot paper out of polling station; or willfully aids or abets the doing of such act, shall be prosecuted and punished. Section 35(2) of the Act further provides that if the Presiding Officer at the polling station has reason to believe that any person is committing or has committed the act of fraudulently taking away of the ballot paper, such officer may himself arrest the said person or direct a police officer to arrest him before such person leaves the polling station and may also search his person or cause such search to be made by the police officer. Section 35(3) of the Act further provides
that, if any ballot paper is found on the person of such person so arrested, the same shall be kept in safe custody by the Presiding Officer.
Thus, it is quite clear from the above provisions of Rule 24 and Section 35 of the Act that after demonstrating to the contesting candidates at the polling station by the Presiding Officer before the commencement of polling that the ballot box which is to be used for inserting the ballot papers(votes) by the voters is empty, it shall be locked and sealed with the seal of the Presiding Officer and those of the contesting candidates and then it shall be placed in full view of the Presiding Officer and the agent of the candidates. It is further clear from the said provisions that if any voter, after receiving the ballot paper for the purpose of voting, does not put the ballot paper into the ballot box after casting his/her vote at the booth in favour of the candidate of his/her choice and after folding it, and fraudulently takes away or attempts to take away the said ballot paper, such an act of the voter would certainty be witnessed by the Presiding Officer and also the polling agents of the respective contesting candidates and other persons and, in that event the Presiding Officer shall have to proceed to arrest such voter and recover from his possession such ballot paper. It is pertinent to note that it is not the case of any of the respondents that either at Haluvarthi polling station or at Randanakovi polling station occurred such an incident of any voter taking away with him/her any ballot paper issued to him/her for the purpose of voting. Further, admittedly, form No. 22 pertaining to these two polling station clearly establish that all the ballot papers that were issued to the voters were put into the respective ballot boxes at the respective polling stations. Therefore, the vague explanation offered by the first respondent in his written objections to the election petition (which are adopted by the 2nd respondent) that the said 4 votes which were alleged to have been found short/missing at the time of counting might have been taken away by the voters instead of putting them into the ballot boxes at their respective polling stations is based on no facts besides being contrary to the admitted and undisputed facts and as such the same cannot be accepted.
As to the alleged shortage or missing of the said ballot papers, the appellant candidate, besides making necessary averments in his election petition, has stated in clear terms at para 6 of his affidavit sworn to as his examination-in-chief as RW. 1 filed before the trial court that from out of 3,530 votes 49 were found invalid, he secured in all 1,285 votes, the third respondent secured 1,282 votes and the other two candidates secured 299 and 615 votes respectively and this being so, the first respondent, instead of declaring him (appellant) as the returned candidate, declared third respondent as such. He has further stated therein that at that time the counting officer who was subordinate to first respondent went inside the chambers of the first respondent with 4 ballot papers wherein the voters had cast their votes in favour of the appellant and that on seeing the same he questioned the said officer as to why he was taking the ballot papers into the chambers of the first respondent but he told the appellant that he was so taking them for getting the confirmation as to the validity of the said votes. He has also stated at the same paragraph that while himself and other agents of the parties were in the chambers of the first respondent, the latter received a telephone call to the effect that the third respondent who was a candidate supported by Congress (1) party should be elected by hook or crook and accordingly first respondent prepared another form No. 23 showing therein that 3,526 votes were found in the ballot boxes and removed the said 4 votes which were cast in his favour and that thereafter he (appellant) filed protest petition requesting the first respondent to recount the votes in terms of the votes mentioned in form No. 22 but the first respondent did not consider his request.
On perusal of the cross-examination of P.W. 1 (appellant) made on behalf of the respondents it could be seen the above evidence of the appellant in his examination-in-chief has remained totally unchallenged inasmuch as though the learned Counsel for the first respondent has suggested to the appellant that the first respondent followed all the procedures and the rules while declaring the third respondent elected, he has not made any further suggestion as to the said evidence in examination-in-chief. The evidence of P.Ws. 2 to 5 reveals that it fully corroborates the evidence of PW. 1 and the cross-examination of P.Ws. 2 to 5 by the learned Counsels for the respondents is also on the same line as in respect of P.W. 1. Besides this neither the first respondent against whom the said serious allegations were made by the appellant nor any of the other respondents entered the witness box for denying the said evidence of P.Ws. 1 to 5 and to lead rebuttal evidence. Therefore we have to hold that the respondents have not discharged their burden of proving their contentions in their objections.
On careful reading of the impugned order of the trial Judge it could be seen that instead of properly appreciating the positive evidence of the appellant and his witnesses i.e., P.Ws. 1 to 5 in the background of the fact that the respondents did not choose to adduce any evidence of their own rebutting the evidence of P.Ws. 1 to 5, the Trial Judge has recorded her findings based on some admissions made by the appellant and the said witnesses in their evidence as to some facts not relevant to the case of the appellant and dismissed the election petition. P.W. 1 has admitted during his cross-examination the suggestions put to him that his agents were witnessing the voters casting their votes at the polling stations; the Presiding Officer, the Police Officer, one officer appointed by the Deputy Commissioner and his agent were sitting inside the polling stations; the persons belonging to the respective contesting candidates were outside the polling station; before commencement of the polling, the Presiding Officer would demonstrate to all the agents of the contestants that the ballot box is empty; he has no objection as to the entries Exs. P-1 to P-10; before commencement of the counting of the votes himself, his authorized agent, the returning officer, and other concerned officers were present and the seals that were put to the ballot box were opened one after another in their presence and the counting took place in the presence of himself and persons; and that the total of the votes secured by the contesting candidates and the rejected votes was 3,526 and the same was correct. He has also admitted in his cross-examination that the entire process of election was conducted in accordance with law. However, he has denied the suggestion that the total number of votes (ballot papers) found from all the ballot boxes were only 3,526. PWs.2 to 5 also have admitted some of the above suggestions put to them during their cross-examination.
Since it is not the case of the appellant that the polling was not held in accordance with the relevant provisions of the Act and the Rules or that the required procedures were not followed either by the Presiding Officers at the polling stations during the polling or by the Returning Officer before the commencement of the counting of the votes. Therefore the above admissions of PWs 1 to 5 in their cross-examination have no bearing on the main allegations of the appellant-petitioner that the 1st respondent - Returning Officer had initially prepared one Form 23 mentioning therein the total number of ballot papers found from all ballot boxes as 3530 and, after having found that the appellant had secured three votes more than the votes secured by the 3rd respondent, the Returning Officer, in order to fraudulently declare that the 3rd respondent was elected by majority of one vote, took out four votes that were cast in favour of the appellant and then falsely prepared another Form No. 23 showing shortage of four votes (ballot papers) from the ballot boxes. As already observed by us supra, the appellant, besides making necessary averments in his election petition has also deposed in his evidence as to these allegations and the evidence of PWs. 2 to 5 fully corroborate the evidence of the appellant and the entire evidence of PWs. 1 to 5 as to these allegations made against first respondent has remained totally unchallenged. This being so, the learned trial Judge committed serious error in ignoring this positive evidence on record and recording her finding on the contentious points that arose for her consideration holding that the appellant-petitioner failed to establish his case by offering explanation as to the missing of four ballot papers. Further, the observations of the learned trial Judge in her impugned order that there was no impediment for the appellant-petitioner to raise his objections soon after the declaration of election; instead of doing so, he kept quiet, is contrary to the material on record, inasmuch as, Ex. P. 15 is the representation submitted by the appellant before the first respondent requesting him to verify the alleged shortage of the ballot papers, and Ex. P.11 is the endorsement given by the first respondent to the appellant in response to Ex.P.15 representation. Therefore, this view of the learned Trial Judge is not sustainable.
Further, Rule 37(1) of the Rules provides that after completing the scrutiny and the counting of votes, the Returning Officer shall prepare a report of the result of the election in Form No. 24, verifying the total number of votes with the figures in form Nos. 22 and 23 and then declare the candidate securing highest number of votes as duly elected. As provided under this rule the ''verification'' of the total number of votes in Form Nos. 22 and 23 while preparing Form No. 24 by the Returning Officer before declaring the results of the election does not mean a mere perusal of the number of votes mentioned in Form Nos. 22 and 23. This verification means if the Returning Officer finds any discrepancy between the entries in Form No. 22 prepared by the Presiding Officers at the respective polling stations and the entries in form No. 23 prepared by himself before commencing the counting of the votes, he has to verify the discrepancy and ascertain the cause for such discrepancy and also bring it to the notice of the contesting candidates or their agents present at the place and time of counting. In the instant case, no material is placed on record by the Returning Officer as to what he did after noticing the shortage or missing of four ballot papers. If it were to be true that the Returning Officer noticed shortage of four ballot papers, one from ballot box pertaining to Haluvarthi Polling station and three from the ballot box pertaining to Randanakovi polling station and he entered the same in Form No. 23 to the knowledge of all the contesting candidates including the appellant and their respective agents, he should have made all the efforts, before commencing counting of the votes, to ascertain as to how there could be shortage of the said ballot papers when admittedly all the 3530 ballot papers that were issued at the respective polling stations were properly entered in the respective Form 22 (i.e., Exs.P-1 to Ex.P-9) and when there was no instance of tampering with any of the ballot boxes or the instance of any voter at any of the polling stations taking away with him/her the ballot paper issued to him/her for casting vote. This being so, in the background of the fact that the 3rd respondent was declared elected by a majority of single vote as against the appellant-petitioner, the alleged missing of four ballot papers assumed all the importance.
As rightly submitted by Sri. Ro. Channabasappa, the learned Sr. Counsel appearing for the appellant if the four ballot papers were found really missing, it was the duty of the 1st respondent - Returning Officer to find out, before commencing the counting of votes, as to how and under what circumstances, there could be missing of the said ballot papers from the ballot boxes pertaining to the said two polling stations. Further, it was his duty to explain before the learned trial Judge by entering into the witness box as to the alleged missing of the said ballot papers. Since the 1st respondent did not do so, the evidence of PWs. 1 to 5 that after having found that 1/285 votes were secured by the appellant as against 1/282 votes secured by the 3rd respondent the first respondent - Returning Officer took out four ballot papers wherein the votes were cast in favour of the appellant and then falsely prepared another Form No. 23 showing therein shortage of four votes (ballot papers) so as to reduce the number of votes secured by the appellant from 1,285 to 1,281 so that he could declare the 3rd respondent elected by majority of a single vote, which has remained unchallenged, ought to have been accepted by the trial Judge. Therefore, we are of the considered opinion that the learned trial Judge ought to have held that the appellant-petitioner has made out the grounds entitling him to the grant of reliefs sought for in his election petition. Hence, we answer both the>k. point Nos. 2 and 3 also in the ''affirmative''.
Before closing our judgment we are constrained to make certain observations as to the manner in which the 1st respondent � Tahsildar returning officer, being a responsible officer, dealt with the matter during counting of the votes and while announcing the results of the election and also as to his conduct in participating in the proceedings before the learned trial Judge wherein serious allegations were made against him by the appellant-petitioner. From the records of the case it is quiet apparent that while counting the votes and declaring the results of the election he committed fraud on the democratic system itself by showing undue favouritism towards the 3rd respondent - candidate. Such conduct of such a responsible officer having statutory obligation to act fairly and impartially in such a situation as in this case would certainly results in the loss of public faith in the democratic process of election, which is the heart and soul of democratic system in our Democratic Republic India.
Therefore, with a view to deprecate such conduct of such officer and to ensure that the same would not be repeated in future we feel that the matter in this case should be investigated thoroughly and the erring officers should be dealt with in accordance with law. Hence we direct the Principal Secretary to Government of Karnataka, Revenue Department, to conduct thorough enquiry in the matter and direct the disciplinary authority to take such disciplinary action as is permissible in law against all the concerned erring officers and to submit to this Court his compliance report as expeditiously as possible, preferably within six months from the date of receipt of this judgment.
Further, we direct the State Election Commission and the Principal Secretary to Government of Karnataka, Revenue Department, that Sri H.M. Revanasiddappa, who, being the Tahsildar of Davanagere Taiuka, was the Returning Officer (the first respondent) shall not be entrusted with any election duty either in the capacity of the Returning Officer or in any similar capacity in future with immediate effect. On account of fraudulent act of the first respondent in declaring unsuccessful person, the 3rd respondent herein, as duly elected Director of the 2nd respondent - APMC, the Appellant, besides being deprived of his statutory right of being declared elected, has been compelled him to approach the court and litigate the matter, in this process respondent No. 3, being ineligible candidate, has been allowed to functions as the Director of the APMC for more than two years. Therefore the first respondent shall be saddled with the costs to the Appellant for having deprived of his valuable statutory right and for having incurred unnecessary costs on the litigations.
In view of our foregoing discussion, we are of the considered view that this appeal deserves to be allowed and the impugned order dated 26.9.2007 passed in W.P. No. 5862/06 (APMC) by the learned Stogie Judge of this Court dismissing the writ petition deserves to be set aside. Accordingly, we allow this writ appeal and set aside the impugned order of the learned Single Judge. Consequently, we allow the said writ petition, set aside the impugned order dated 23/2.2006 passed by the learned Prl. Civil Judge (Jr.Dn.) Davangere, dismissing the Election Misc. No. 4/2005 and allow the said Election Miscellaneous petition with costs of Rs. 25,000/- which shall be paid by the said Sri H.M. Revanasiddappa personally, who then was the Tahsildar of Davanagere Taluka and Returning Officer and we hereby declare the election of the 3rd respondent to the post of Director of 2nd respondent - APMC void and further declare that the appellant herein has been duly elected to the said post. The concerned officers of 2nd respondent - APMC shall give effect to this declaration, forthwith.
Registry shall send a copy of this judgment to the Principal Secretary to Government of Karnataka, Revenue Department, Bangalore, and also to the State Election Commission, Bangalore, forthwith, for complying with the directions issued at para No. 27 of this judgment