ORDER
K.L. Manjunath, J.
ON THE MAINTAINABILITY OF THE ELECTION PETITION.
1. In the general election held in the month of Sept. 1999 to No. 5, Humnabad Assembly Constituency, the 3rd respondent Subhash Gurulingappa Kallur, was declared as an elected candidate. The first respondent-Rajashekar Basavaraj Patil filed an election dispute in E.P. No. 13/99 before this Court. The said petition came to be dismissed on merits. Being aggrieved by the dismissal of the election petition, the 1st respondent filed a civil appeal before the Hon. Supreme Court of India in Civil Appeal No. 5667/01 which appeal came to be allowed and the election of the 3rd respondent was set aside on the ground that he had incurred disqualification to contest the election under Section 9A of the Representation of the People Act, 1951. Thereafter, a notification was issued on 22-1 -2003 by the Government of Karnataka, notifying the calendar of events for By-Election to No. 5, Humnabad Assembly Constituency. The dates of events of the said election are as hereunder:
(See table below)
2. One Malikarjuna was appointed as a Returning Officer who was previously working as the Assistant Commissioner at Basavakalyan Sub-Division up to 28-10-2002. Several persons filed nominations in the said election. The Returning Officer rejected the nomination of one Ashok s/o Masoodappa as a substitute candidate for Bharatiya Janatha Party. The Returning Officer also accepted the nomination of one Ashfoddin who is the 5th respondent in the present petition.
3. Being aggrieved by the election results, declaring the 1st respondent as an elected candidate, the petitioner filed the present election petition under Section 81 of the Representation of the People Act, 1951 on three grounds.
4. According to the petitioner, the Returning Officer has committed an error in rejecting the nomination of Ashok s/o Masoodappa as a substitute candidate for the Bhartiya Janatha Party. According to him, it is a case of improper rejection of nomination. It is also his case that the Returning Officer has committed an error in accepting the nomination of the 5th respondent. According to him, it is a case of improper acceptance of the nomination. It is also pleaded in the petition that contrary to the Model code of conduct for the guidance of political parties and the candidates, the then Chief Minister and several Ministers during the period of election campaign in the Humnabad Constituency held several public meetings and assured several reliefs to the valuable voters to make the voters to exercise their franchise in favour of the 1st respondent. Therefore on these grounds, the election petition has been filed by the petitioner.
5. The 1st respondent who is the contesting respondent, has filed the detailed reply to the election petition. According to him the Returning Officer has not committed any error either in rejecting the nomination of Ashok s/o Masoodappa or in accepting the nomination of the 5th respondent. It is also the case of the 1st respondent that with his knowledge or consent either the Chief Minister or any other Ministers or political leaders of Congress-I party have assured the voters of Humnabad Constituency influencing the voters to exercise their franchise in favour of the petitioner. Alternatively, it is also contended that the 1st respondent has not played any role in the alleged assurance said to have been given by some of the party leaders. It is also contended that even if there are any violation of code of conduct the same cannot be considered as a ground to set aside the election of the 1st respondent. According to the 1st respondent, if the party in power has violated the model code of conduct it was open for the petitioner to lodge the complaint before the Election Commission of India and it was for the Election Commission of India to take appropriate action against the persons who were indulged in such activities. Therefore, he requests this Court to dismiss the election petition.
-----------------------------------------------------------------------------------1. Issue of Notification by the Election 31-1 -2003 (Friday)Commission of India under Sections 150, 30 and 56 of the Representationof the People Act, 1951.2. Last date for making Nominations 7-2-2003 (Friday)3. Date for the Scrutiny, of Nominations 8-2-2003 (Saturday)4. Last date for the withdrawal of can- 10-2-2003 (Monday) didatures5. Date of Poll 26-2-2003 (Wednesday)6. Date of Counting of Votes 1-3-2003 (Saturday)7. Date before which election shall be 7-1-2003 (Friday) Completed.------------------------------------------------------------------------------------
6. The 1st respondent, also filed an application to dismiss the election petition on the ground that the petition filed by the petitioner was not maintainable as it does not attract any of the provisions of Section 100 of the Representation of the People Act, 1951.
7. This Court after hearing the learned counsel for the petitioner and respondents and based on the Memo filed by the learned counsel appearing for the petitioner that the petitioner has not filed the election petition on the ground of corrupt practices dismissed the application of the 1st respondent and held that the election petition filed by the petitioner is maintainable and has to be adjudicated on the allegations made in the election petition.
8. Based on the pleadings of the parties, the Court also framed issues. Thereafter the petitioner was examined as PW-1 and he also examined two more witnesses, namely, Ashok Masoodappa whose nomination was rejected as PW-2 and one Revanappa a resident of Chitaguppa town was examined as PW-2. Thereafter the case was set down for the further evidence of the petitioner. In the meanwhile, due to dissolution of the Karnataka Assembly, the 1st respondent filed an application requesting this Court to dismiss the election petition as having become infructuous and requested the Court to hold that no living issues would serving for consideration of this Court in view of the subsequent developments. The petitioner has also filed objections to the said application. Therefore, in this background, this application is heard even though the evidence has been recorded in part on behalf of the petitioner.
9. It is not in dispute that due to dissolution of the Assembly and holding of fresh elections to the Karnataka Assembly, the 1st respondent cannot act as an elected representative of the Humnabad Assembly Constituency. In view of the Memo that petitioner is not alleging the grounds of corrupt practices against the 1st respondent, no finding can be given by this Court on the question of corrupt practices. Therefore, in this background, this Court is of the opinion that the recording of further evidence and giving findings on merits of the election petition is only a question of academic interest, since the petitioner has filed this petition on the ground of improper rejection of nomination of Ashok Masoodappa and improper acceptance of the nomination of 5th respondent and violation of model code of conduct.
10. The Supreme Court in Loknath Padhan v. Birendra Kumar Sahu reported in : [1974]3SCR114 has held as hereunder:
'Legislative Assembly being dissolved, it has become academic to consider whether on the date when the nomination was filed, the respondent (the winning candidate) was disqualified under Section 9A. Even if it is found that he was so disqualified, it would have no practical consequence, because the invalidation of his election after the dissolution of the Legislative Assembly would be meaningless and ineffectual. It would not hurt him. The disqualification would only mean that he was not entitled to contest the election on the date when he filed his nomination. It would have no consequences operating in future. It is possible that the respondent had a subsisting contract with the Government at the date of nomination, but that contract may not be subsisting now. The finding that the respondent was disqualified would be based on the facts existing at the date of nomination and it would have no relevance so far as the position at a future point of time may be concerned, and therefore, in view of the dissolution of the Legislative Assembly, it would have no practical interest for either of the parties. Neither would it benefit the appellant (the defeated candidate) nor would it affect the respondent in any practical sense and it would be wholly academic to consider whether the respondent was disqualified on the date of nomination.'
11. Shri Rayaraddi, appearing for the petitioner contends that though the petitioner is not entitled for the relief in the election petition since the petitioner has made allegation of violation of model code of conduct, the petition survives for consideration and that Court has to give its finding on the effect of violation of model code of conduct by the party in rule.
12. The model code of conduct for the guidance of political parties and candidates has been issued by the Election Commission of India. The said guidance do not say what would be the consequence if any of the guidance is violated by the political parties and the candidates. Though such guidance has been issued by the Election Commission of India, there is no corresponding amendment to Section 100 of the Representation of the People Act.
13. If an election has to be declared as void, a party has to prove the grounds available to him under Section 100 of the Representation of the People Act, 1951. Section 100 of the Representation of the People Act reads as hereunder :
'100. Grounds for declaring election to be void -- (1) Subject to the provisions of Sub-section (2) if (the High Court) is of opinion --
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act (or the Government of Union Territories Act, 1963, (20 of 1963)); or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of returned candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, insofar as it concerns a returned candidate, has been materially affected--
(i) by the improper acceptance of any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate (by an agent other than his election agent), or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act.
(the High Court) shall declare the election of the returned candidate to be void.)
(2)..............................'
14. From the provisions of Section 100 of the Act, it is clear to me that even if there are violation of code of conduct either by the political party or by its candidate such violations can only be brought to the notice of the Election Commission of India to initiate appropriate action against such party or candidate. But the same cannot be a ground to set aside the election of a Returning candidate as void, since such a question cannot be adjudicated by the Court in view of the provisions of Section 100 of the Representation of the People Act.
15. In the instant case, there are no allegations of violation of model code of conduct against the 1st respondent. It is the specific case of the petitioner that the then Hon. Chief Minister and few Hon. Ministers had assured to convert the Chitaguppa town as a Taluk Headquarters and to give certain reliefs to the employees of Mahatma Gandhi Sahakara Sakhare Karkhane, Bhalki Taluk and to provide the status of Scheduled Tribes to two communities by name, Gonda and Rajgonda. Therefore, it is clear that the 1st respondent, the Returned candidate has not violated the model code of conduct issued by the Election Commission of India. Even otherwise, this Court cannot consider the effect of the violation of model code of conduct by any political party, in view of Section 100 of the Representation of the People Act, 1951. Therefore, this Court is of the opinion that even if the Returning Officer has improperly rejected the nomination of Ashok S/o Masoodappa and that the nomination of 5th respondent was improperly accepted 1st respondent, (sic) this Court at best can hold that the said two aspect will have no bearing on the election petition in view of the dissolution of the Assembly subsequently. At best these two point's can be considered only in the academic interest and no substantial question of law arises for consideration of this Court to set aside the election of the Returning candidate.
16. Accordingly, the election petition is dismissed as having become infructuous.