1. Leave granted.
2. The Pradhan of Sullia Mandal panchayat in the State of Karnataka elected under Karnataka Zilla Parishad, Taluk Panchayat Samithi Mandal Panchayats and Nyaya Panchayats 1983 Act for short the Act by 17 elected and 2 nominated members of the Samithi had resigned. In consequence the election for Pradhan was to be held on May 27, 1992asperthe K.Z.P.T.P.S., M.P. and N.P. (Conduct of Election) Amendment Rules, 1987 for short 'the rules'. One Jayaprakash Rai, 5th respondent herein had filed Writ Petition No. 16150/92 on May 25, 1992 and obtained interim exparte stay from the High Court on May 26, 1992 preventing two nominated members, by name, Babu Mogeral and Devu Ajila from voting on the ground that their nominations on August 13, 1990 from backward class quota was illegal under Section 5(3) of the Act and Rule 2(2) of the Rules. Due to interim order passed by the High Court, the two members were restrained from participating and to exercise their franchise in the election in which 4th respondent herein, namely, K.C. Sadananda and the appellant had contested and the former was declared elected with a majority of one vote. it is the case of the appellant that those two candidates intended to vote for him and with a view to see that two candidates should not vote for him the above Writ Petition was filed by Jayaprakash Rai. As a consequence of the stay granted, Sadananda was declared elected as Pradhan. The Writ Petition No. 16150/92 was dismissed. The Writ Petition No. 16564/92 filed by the appellant for a declaration that the election of the 4th respondent as illegal as well as Writ Appeal No. 2131/92 followed thereon were dismissed, the later on December 15, 1992. Assailing the correctness thereof, this appeal by special leave has been filed.
3. Though respondents Nos. 4 and 5 have been served, none have been appearing for them nor they are appearing in person, the 4th respondent also did not contest the case in High Court. Shri Bhat, learned Senior Counsel for the appellant has contended that the learned single Judge, while dismissing the writ petition, though for different grounds, had recorded that Jayaprakash Rai had not acted bona fide in assailing the nomination of two members when he impugned their participation in Pradhan's election held on May 27, 1992. It was specifically averred in the writ petition filed by the appellant that Jayaprakash Rai had acted and filed the writ petition at the instance of Sadananda to enable the latter to contest the election. Similarly when 5th respondent has not even filed nomination for Pradhan's election, it is obvious that he filed the writ petition, had ex parte order restraining the participation and exercise of the franchise. by two members, it was not only not a bona fide action,but also to aid and help Sadananda getting elected as Pradhan. In these circumstances, the finding of the learned single Judge that 5th respondent had not acted bona fide is well justified. The necessary conclusion is that Jayaprakash Rai's filing writ petition was at the behest of Sadananda, 4th respondent abusing the process of the Court; had ex parte order and prevented two nominated members of exercise their franchise and facilitated Sadananda elected as Pradhan. But for the directions granted by the High Court the I nominated members would have exercised their franchise in electing the Pradhan. As a consequence the result of the election obviously tilted in favour of Sadananda and he was declared elected. We, therefore, hold that the appellant is justified in contending that on account of the order passed by the Court, the result of the election was materially affected and he lost the election. He should be put in the position prior to election and he is so entitled to. It is but proper and higher duty of the High Court to see that its judicial process is not abused and its order does not become an instrument or aid to overreach the adversary and when that interference or finding could be reached on proper consideration of the facts and circumstances, suitable remedy be given. We are informed that there is no procedure prescribed under the Act or the rules to challenge the validity of the election. Even otherwise the election Tribunal cannot go into the validity or correctness of the order granted by the High Court which is the foundation to disable two members to exercise their franchise. It should be remedied only in the proceedings under Article 226. Under these circumstances it is but fit, just, proper and legal that the injury suffered by the appellant should be remedied by declaring that the election of K.C. Sadananda Pradhan is not a validly conducted election and it is accordingly declared and set aside. It is open to the Returning Officer to conduct the election of Pradhan afresh aced ding to rules. The writ is issued accordingly.
4. The appeal is allowed but since the respondents are not appearing, without costs.