IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF MAY 2017 BEFORE THE HON’BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN WRIT PETITION NO. 2185 OF 2017 (LB-ELE) BETWEEN:
SMT. HALLEMABI WIFE OF GOUSE MOHUDDIN AGED ABOUT 23 YEARS RESIDING AT DODDAMALAVADI VILLAGE KOTHAGERE HOBLI KUNIGAL TALUK TUMKUR DISTRICT – 572 130 …PETITIONER (BY SRI. SIDDAMALLAPPA P.M., ADV.) AND:
1. SMT. K.M. NAGARATHNA WIFE OF S.L. KRISHNA AGED ABOUT 37 YEARS RESIDING AT SINGONAHALLI VILLAGE KOTHAGERE HOBLI KUNIGAL TALUK TUMKUR DISTRICT – 572 130 2. SRI. B.K. RAMANNA SON OF KEMPALAKKAIAH AGED ABOUT 62 YEARS RESIDING AT SINGONAHALLI VILLAGE KOTHAGERE HOBLI KUNIGAL TALUK TUMKUR DISTRICT – 572 130 3. THE CHIEF SECRETARY GOVERNMENT OF KARNATAKA VIDHANA SOUDHA VIDHANA VEEDI BANGALORE – 560 001 4. THE TAHSILDHAR KUNIGAL TALUK KUNIGAL TUMKUR DISTRICT – 572 130 5. THE CHIEF ELECTION OFFICER BAKTHARAHALLI GRAM PANCHAYAT KUNIGAL TALUK TUMKUR DISTRICT – 572 130 ... RESPONDENTS (BY SRI. A.K. VASANTH, AGA) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 07.01.2017 AS PER ANNEXURE – G PASSED BY ADDITIONAL CIVIL JUDGE & JMFC, KUNIGAL IN ELECTION PETITION NO.5/2016 PASSED ON IA NO.13 AND 15 AND ETC., THIS WRIT PETITION IS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner, Smt. Hallemabi, has challenged the legality of the order dated 07-01-2017 passed by the Senior Civil Judge & JMFC at Kunigal whereby the learned Civil Judge has rejected the application filed by the petitioner under Order VII Rule 11(e) & (f) of CPC and has permitted the respondent No.1 and respondent No.2 to file the verifying affidavit before the Court.
2. Briefly, the facts of the case are that respondent Nos. 1 and 2 had filed an Election Petition, namely E.P.No.5/16 before the learned Civil Judge, and had challenged the election of the petitioner as member of Bhaktharahalli Grama Panchayat, Kunigal Taluk, Tumkur District. During the pendency of the said Election Petition, the petitioner had appeared before the learned Court. Subsequently, the petitioner filed an application under Order VII Rule 11 (e) & (f) r/w Section 151 CPC on the ground that since there is non- compliance of the statutory provision of Section 19 of the Karnataka Panchayat Raj Act, 1993 (‘the Act’, for short), the Election Petition should be rejected by the learned Court. Meanwhile, the respondent Nos. 1 and 2 had also filed an application under Section 151 CPC seeking the leave of the learned Court to submit the verifying affidavit in support of the main petition. After hearing both the parties, by order dated 07-01-2017, while the learned Civil Judge has rejected the application filed by the petitioner, the learned Civil Judge has allowed the application filed by the respondent Nos. 1 and 2. Hence the present petition before this Court.
3. Mr. B. M. Siddamallappa, the learned counsel for the petitioner, has vehemently contended that since the provisions of Section 15 and Section 16 of the Act are mandatory in nature, since Section 16 of the Act clearly stipulates that an Election Petition has to be verified in the manner laid down in CPC, and since the verification was not a proper one, the Election Petition deserves to be rejected by the learned Civil Judge.
However, notwithstanding the mandatory nature of the provisions, the learned Civil Judge has erroneously rejected the application filed by the petitioner. Moreover, the learned Civil Judge has committed an illegality by permitting the respondent Nos. 1 and 2 to file the verifying affidavit after the election petition had been filed. Therefore, the impugned order deserves to be interfered with, by this Court.
4. Heard the learned counsel for the petitioner and perused the impugned order.
5. Section 15 and Section 16 of the Act as under:
“15. Election petition.- (1) No election to fill a seat or seats in a Grama Panchayat shall be called in question except by an election petition presented on one or more of the grounds specified in sub- section (1) of section 19 and section 20 to the 1 [Civil Judge (Junior Division)] 1 within whose territorial jurisdiction the panchayat area concerned or the major portion of the panchayat area concerned is situate by any candidate at such election or by any voter qualified to vote at such election together with a deposit of five hundred rupees as security for costs, within thirty days from , but not earlier than, the date of declaration of the result of the election of the returned candidate or if there are more than one returned candidate at the election, and if the dates of declaration of the results of the their election are different, the last of those dates.
(2) A petitioner shall join as respondent to his petition,-
(a) where the petitioner, in addition to claiming a declaration that the election of all or of any of the returned candidates is void , claims a further declaration that he himself or any other candidate has been duly elected all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and (b) any other candidate against whom allegation of any corrupt practice are made in the petition;
(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be true copy of the petition.
Explanation.- The expression “returned candidate” means a candidate who has been declared as duly elected.
16. Contents of the petition and relief that may be claimed.-
(1) An election petition-
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Central Act 5 of 1908) for the verification of pleadings:
Provided that where the petition alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.
(3) A petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidate is void , claim a further declaration that he himself or any other candidate has been duly elected.”
6. A bare perusal of these provisions clearly reveal according to Section 15(3) of the Act every copy has to be attested by the petitioner as true copy. Moreover, Section 16 of the Act does require that the petition be signed and verified in the manner laid down in CPC for verification of pleadings. However, in a series of judgments pronounced by the Hon’ble Supreme Court and by this Court, it has been clearly held that Section 16 deals with procedural aspect. Therefore, non- compliance of Section 16 of the Act cannot come in the way of seeking substantial justice. Even if verification is not a proper one in compliance with the provisions of CPC, even then, a chance has to be given to the party to rectify the mistake (refer to SALEM ADVOCATE BAR ASSOCIATION, TAMIL NADU VS. UNION OF INDIA AIR 2003 SC 189 and RAJESH VS. THE STATE OF KARNATAKA BY ITS DEPUTY COMMISSIONER AND OTHERS ILR 2005 Kar 4257). Therefore the learned counsel for the petitioner is not justified in claiming that provision of Section 16 of the Act is mandatory in nature and that no opportunity should have been given to respondent Nos.1 and 2 to rectify the same.
7. The learned Civil Judge has clearly noticed the fact that each page of the Election Petition was, indeed, signed by the petitioner and Election Petition does contain the signature of the petitioner therein, after the prayer column. Even if the said verification cannot be said to be in terms of the requirement of CPC, even then, the learned Civil Judge was legally bound to give an opportunity to the respondent Nos. 1 and 2 to rectify the mistake. It is only after noticing the relevant case law that the learned Civil Judge has granted an opportunity to respondent Nos. 1 and 2 to rectify the mistake and has rejected the application filed by the petitioner. Since the learned Civil Judge has given cogent and convincing reasons, that too based on relevant case law, the impugned order cannot be faulted by this Court.
For the reasons stated above, this Court does not find any merit in the present writ petition; it is, hereby, dismissed.
Sd/- Judge Rd/-