IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE PRADEEP SINGH YERUR WRIT APPEAL NO.3859 OF 2019 (GM-RES) BETWEEN:
SHRI. DINESH GUNDURAO, S/O LATE R. GUNDURAO AGED ABOUT 49 YEARS, MEMBER OF LEGISLATIVE ASSEMBLY GANDHINAGAR CONSTITUENCY PRESIDENT, KARNATAKA PRADESH CONGRESS COMMITTEE, NO.14, KPCC, CONGRESS BHAVAN, QUEENS ROAD, VASANTH NAGAR, BENGALURU – 560 052 ... APPELLANT (BY SRI K SASHI KIRAN SHETTY, SR. ADVOCATE A/W SRI ANUPARNA BARDOLOI, ADVOCATE) AND:
1. THE STATE OF KARNATAKA REPRESENTED BY ITS CHIEF SECRETARY, GOVERNEMENT OF KARNATAKA VIDHAN SOUDHA BENGALURU – 560 001 2. THE CHIEF ELECTORAL OFFICER NIRVACHANA NILAYA, MAHARANI’S COLLEGE CIRCLE, SESHADRI ROAD, BENGALURU KARNATAKA– 560 001 3. THE CHIEF ELECTION COMMISSIONER, ELECTION COMMISSION OF INDIA NIRVACHAN SADAN, ASHOKA ROAD NEW DELHI – 110001.
4. SECRETARIAT ELECTION COMMISSION OF INDIA NIRVACHAN SADAN, ASHOKA ROAD, NEW DELHI – 110001 ... RESPONDENTS (BY SRI S.R. DODAWAD CGC FOR R2 & R4, SRI M DHYAN CHINNAPPA AAG A/W SRII THARANATH POOJARY AGA FOR R1) ---
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT PRAYING TO ALLOW THE ABOVE WRIT APPEAL AND SET ASIDE THE ORDER DATED 25/10/2019 PASSED BY THE LEARNED SINGLE JUDGE IN WP NO.49956/2019 (GM-RES) AND ETC.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, CHIEF JUSTICE, DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned Senior Counsel appearing for the appellant, the learned counsel appearing for respondent Nos.2 to 4 and learned AGA for respondent No.1.
2. Considering the narrow controversy involved in the appeal, we have taken up the appeal for final disposal.
3. The appellant is the writ petitioner. The challenge in the writ petition was mainly to the order dated 27th September 2019 issued by the respondent No.4, by which the Code of Conduct which was announced on 21st September 2019, was suspended and was postponed to 11th November 2019. There are other consequential prayers in the petition including the challenge to the order dated 09th October 2019 by which the State Government has appointed certain persons as the heads of various Boards and Corporations with the rank of Ministers of State.
4, The Election Commission of India filed an application in Writ Petition (Civil) No.992/2019 pending before the Apex Court. There were two prayers made in the said application. The first prayer was to stay proceedings in W.P. No.50205/2019, filed by one Venkatasa Setty, which is pending in this Court, The second prayer was for stay of the proceedings of the present writ petition. The Apex Court dealt with the prayer made in the said application (IA No.16234 of 2019) and by an order dated 23.10.2019 stayed the further proceedings in W.P. No. 50205/2019 pending for adjudication in this Court. The learned Single Judge, who was shown the aforesaid order of the Apex Court, by the impugned order directed that hearing of the writ petition, which is subject matter of this appeal, be adjourned sine die, which shall be posted after disposal of the pending matter before the Apex Court. The learned Single Judge observed that the writ petition is required to be adjourned to maintain propriety and discipline of the judicial proceedings.
5. After perusing the order dated 23rd October 2019 passed by the Apex Court, we are of the view that the Apex Court has granted only one prayer out of two prayers in the IA filed by the Election Commission of India and stayed further proceedings only in W.P. No.50205/2019. We called upon the learned counsel for the respondent Nos.2 to 4 to disclose the stand of the Election Commission of India on the order of the Apex Court. He states that as per the order of the Apex Court, the proceeding of the writ petition, which is the subject matter of this appeal, was not stayed by the Apex Court and only further proceedings of the other petition (W.P. No.50205/2019) was stayed by the Apex Court. On a query made by this Court, he states that the Election Commission of India has not applied to the Apex Court till date either for modification or for clarification of the said order.
6. We may note from the impugned order that the order of the Apex Court has been quoted by the learned Single Judge. As noted above, there are two distinct prayers made by the Election Commission of India to stay further proceedings in two writ petitions, but by the order of the Apex Court dated 23rd October 2019, the Apex Court stayed the proceedings of only one writ petition as stated above. In fact, the first paragraph of the said order of the Apex Court reads thus:
“The instant application has been filed on behalf of the applicant – Election Commission of India for staying the proceedings in Writ Petition No.50205 of 2019 (Venkatesa Setty vs, Election Commission of India & Ors), pending before the High Court of Karnataka at Bengaluru.”
The said portion indicates that at the time of hearing the IA, applicant – Election Commission of India has pressed only one prayer of staying the proceedings in W.P. No.50205 of 2019. As stated earlier, Election Commission of India has neither applied for modification nor clarification of the order of the Apex Court. Moreover, before us, the Election Commission of India has not disputed that the proceeding of the writ petition which is the subject matter of this appeal, has not been stayed by the Apex Court.
7. Therefore, we will have to proceed on the footing that the prayer made before the Apex Court for stay of proceedings in W.P. No.50205 of 2019, which is the subject matter of this writ appeal, was not granted by the Apex Court.
8. We are of the view that considering the stand taken by the Election Commission of India before this Court, there is no impediment in the way of the learned Single Judge proceeding to deal with the writ petition in accordance with law.
9. There is some argument canvassed whether the prayer made in the writ petition will survive. Looking to the prayers made in the writ petition, prima facie, on the first principles, it cannot be said that prayer has become infructuous. We are of the view that the writ petition filed by the appellant will have to be considered and disposed of by the learned Single Judge, who can go into the issue. It is for him to take a final call on the question whether the petition has become infructuous.
10. Hence, appeal must succeed and we pass the following order:
(1) The impugned order, by which W.P No.49956/2019 was adjourned sine die, is hereby set aside;
(2) It will be open for the learned Single Judge to hear the petition and to decide the same in accordance with law.
Sd/- CHIEF JUSTICE Sd/- JUDGE VK