Siddaramaiah Vs. Anwari Basavaraj Patil - Court Judgment

Excerpt:
(a) constitution of india - article 102(2) & tenth schedule: part 2 - object - permanent disqualification only if prescribed by legislature: court cannot fix extent & measure of punishment - under article 102, two modes of disqualification: for being chosen as a member & for being a member, to be read disjunctively - no permanent disqualification for a person disqualified for being a member, for being chosen as a member.;(i) the object of introducing the tenth schedule in the constitution is undoubtedly to prevent the political defections, motivated by undesirable considerations. but, a person can be disqualified permanently only if the legislature has said so. the measure and extent of punishment cannot be fixed by the court as the court cannot introduce its own philosophy.....orderjagannatha hegde, j1. this petition is presented challenging the legality and validity of the election held at the general elections to lok sabha 1991 (tenth lok sabha) from no. 4 koppal parliamentary constituency, koppal. the polling was held on 15.6.1991. counting of the votes was taken up on 16.6.1991 and the declaration of the result was made on 17.6.1991, declaring respondent no. 1 as the successful candidate from the said constituency.2. material allegations necessary for the purpose of deciding this petition may be stated as follows:the petitioner contested the election as a candidate from janatha dal. rule 1 to rule 13 also contested the said election. rule 1 was nominated by the indian national congress while rule 2 was nominated by the bharathiya janatha party. rule 5.....

Judgment:
ORDER

Jagannatha Hegde, J

1. This Petition is presented challenging the legality and validity of the election held at the General Elections to Lok Sabha 1991 (Tenth Lok Sabha) from No. 4 Koppal Parliamentary Constituency, Koppal. The polling was held on 15.6.1991. Counting of the votes was taken up on 16.6.1991 and the declaration of the result was made on 17.6.1991, declaring Respondent No. 1 as the successful candidate from the said constituency.

2. Material allegations necessary for the purpose of deciding this Petition may be stated as follows:

The petitioner contested the election as a candidate from Janatha Dal. Rule 1 to Rule 13 also contested the said election. Rule 1 was nominated by the Indian National Congress while Rule 2 was nominated by the Bharathiya Janatha Party. Rule 5 contested as a candidate set up by the Karnataka Rajya Raitha Sangha. The other candidates contested the election as independent candidates. Rule 14 was the Returning Officer. The petitioner had appointed one Virupakshappa Agadi, former-M.L.A. Koppal, as his election agent.

3. No. 4 Koppal constituency consists of eight Assembly segments viz., Sindhanoor, Kushtagi, Yelaburga, Kanakagiri, Gangavathi, Koppal, Hospet and Mundargi. Along with this Election, a bye-election to fill up a vacancy from Hospet Assembly constituency was also held. The counting of votes at the said Election was conducted in Sri Gavisiddeshwara High School, Koppal. The counting commenced at 12.00 noon on 16.6.1991. The details of the counting tables used in each room are set out as follows:

SI.No.No. and name of theassemblysegmentCountingRoomNo.No. ofTablesusedTotal

1.

25 - Sindhanoor

27

8

15

28

7

2.

26 - Kushtagi

36

6

12

37

6

3.

27 - Yelburga

25

6

12

26

6

4.

28 - Kanakagiri

31

7

13

32

6

5.

29 - Gangavathi

34

7

14

35

7

14

6.

30 - Koppal

CentralHall

15

15

7.

34 - Hospet

ShuttleHall

15

15

8.

187 - Mundargi

Library

11

11

4. Apart from the Returning Officer (R-14), there were 9 Assistant Returning Officers, one Assistant Returning Officer (Hq), and one each for each of the 8 assembly segments. At every table there was a counting supervisor assisted by two counting assistants.

5. These averments relating to facts have not been denied in the written statement filed by the contesting first respondent.

6. It is alleged by the petitioner that the Returning Officer has wrongly declared that Rule 1 had secured 2, 41, 176 votes thereby giving a narrow margin of 11, 197 votes over the petitioner. According to him, 22,243 votes were declared to be rejected and the petitioner has been assigned only 2,29,979 votes though he had secured majority of the valid votes polled. It is further alleged that Rule 1 was elected to the 9th Lok Sabha at the General Elections held in the year 1989 on Janatha Dal ticket and because he defected to the Samajavadi Janatha Party, he was disqualified by the Speaker of the Lok Sabha under Para 2 of Schedule X of the Constitution of India. The petitioner, therefore, contends that by virtue of the said disqualification, Rule 1 was permanently disqualified for the membership of the Lok Sabha and that disqualification was in force even on the date of filing of the nomination and it continues thereafter also. The petitioner, therefore, alleges that the Returning Officer ought to have rejected the nomination paper of Rule 1 and he could not have accepted the same and that the election of Rule 1 to the 10th Lok Sabha is void and is liable to be set aside under Section 100(1)(a) of the Representation of the People Act, 1951. The result of the election declaring Rule 1 as the returned candidate has been materially affected by the improper acceptance of his nomination paper and the election of Rule 1 is liable to be declared void under Section 100(1)(d)(i) of the Representation of the People Act, 1951.

7. The petitioner further alleges that large scale illegality has taken place in the counting of votes. The result of the Election in declaring Rule 1 as the returned candidate is materially affected by the large-scale improper counting of votes in favour of Rule 1 and improper refusal of votes cast in favour of the petitioner, thus vitiating the result of the Election under Section 100(1)(d)(iii) of the Representation of the People Act, 1951. It is not necessary to refer to the other allegations made in the Petition as they have not been pressed into service.

8. Represent-1 has contended that his disqualification is not permanent and it would at best be for the period of 9th Lok Sabha. According to him, the Speaker has no power to disqualify a Member beyond the period of the 9th Lok Sabha. He, therefore, contends that it is not correct to say that by virtue of the said disqualification order passed by the Hon'ble Speaker, he had become permanently disqualified to be a member of the Lok Sabha or that disqualification was in force even on the date of filing of the nomination paper. It is also alleged by him that the petitioner cannot now challenge the validity of the acceptance of the nomination as the said objection was not raised at the time of scrutiny of the nomination papers. It is also his contention that no illegality has taken place in the counting of votes. He also denies that there was any improper reception of votes cast in favour of the petitioner as votes cast in favour of Rule 1 or improper refusal or reception of votes cast in favour of the petitioner.

9. The following issues have been framed on the basts of the pleadings:

(1) Does the petitioner prove that Respondent-1 was disqualified to contest the election in question, because of the order passed by the Speaker of the Lok Sabha in terms of para-2 of Schedule X to the Constitution of India read with Clause 2 of Article 102 of the Constitution as alleged in the petition? If so, proved, was the acceptance of the nomination of respondent-1 by respondent-14 was invalid and therefore the election of respondent-1 is liable to be declared void under Section 100(1)(d)(i) of the Representation of the People Act, 1951 ?

(2) Does the petitioner prove that during the course of counting of votes, large number of votes cast in favour of the petitioner have been wrongly counted as votes cast in favour of respondent-1 and there was improper rejection of votes cast in favour of the petitioner thus vitiating the result of the election as alleged by the petitioner ?

(3) Does the petitioner prove, that contrary to the provision of Rule 55(2) of the Conduct of Election Rules, at the counting of votes of Hospet Assembly segment of the Constituency, the unsealing of the ballot box was not done at the counting tables before the agents of the petitioner but was done elsewhere as alleged in the petition ?

(4) Does the petitioner prove that many of the ballot papers counted in favour of respondent-1, more particularly in Hospet Assembly segment of the Constituency, were stamped with marks made by a device other than the one provided at the election booths ?

(5) Does the petitioner prove that because of the illegality alleged in the petition, the election result in question is materially affected and therefore the election of respondent-1 is liable to be declared void under Section 100(1)(d)(iv) of the Representation of the People Act, 1951 ?

(6) Is this a fit case for ordering recounting of votes ?

(7) In the circumstances, is the petitioner entitled to be declared elected to the Lok Sabha from No. 4 Koppal 1 Parliamentary Constituency ?

(8) Is the petitioner entitled to costs ?

(9) What order ?

Two witnesses were examined on behalf of the petitioner and Exhibits P-1 to P-7(a) have been marked. Rule 14, the Returning Officer, examined himself as R.W.1 and Exhibits Rule 1 to Rule 7 have been marked on his behalf.

10. Sri. L.G. Havanur, learned Senior Counsel for the petitioner, did not press issue Nos.2, 3 and 4. Issue No. 5 has been pressed into service only on the ground that identifying of valid and invalid ballot papers out of the ballot papers kept apart as doubtful votes was made by the Assistant Returning Officers without the written authority of the Returning Officer. Therefore, issue Nos. 1, 5, 6, 7, 8 and 9 duly arise for my consideration.

11. Sri Basavarya, learned Counsel for Rule 1, contends that the Petition is not maintainable. According to him, the petitioner, in his Petition, has alleged corrupt practice and when an allegation of corrupt practice is made, the Petition shall have to be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof as provided under Section 83 of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act'). He further contends that the Petition is liable to be dismissed by virtue of Section 80 of the Act which is mandatory. But, this contention was raised by him in I.A.No. 7 and this Court has rejected the same while disposing of I.A.No. 7 by an order dated 15.4.1993. It is admitted that the S.L.P. filed against the said order has been dismissed by the Hon'ble Supreme Court. The petitioner, therefore, cannot raise the same contention at this stage.

12. Sri Anwari Basavaraj Patil (Respondent No. 1), was a Member of the Ninth Lok Sabha and he was disqualified under Part-2 of the Tenth Schedule to the Constitution read with Clause (2) of Article 102 of the Constitution by an order Exhibit P-1 dated 12.1.1991 of the Hon'ble Speaker of the Lok Sabha. According to the petitioner, Rule 1 was permanently disqualified to be a Member of the Lok Sabha and since the said disqualification was in force on the date of filing of the nomination, his nomination paper should not have been accepted, and the election of Rule 1 to the Tenth Lok Sabha is void and is liable to be set aside. Rule 1, while not disputing that he was disqualified from being a Member of the Ninth Lok Sabha by virtue of the notification, Exhibit P-1, contends that he was disqualified from being a Member of the Ninth Lok Sabha only, that he lost only the then existing membership and that he is not disqualified from being chosen as a Member of the Parliament afresh.

13. The relevant portion of Exhibit P-1 reads thus: