IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION NO. 46115/2018 AND W.P.NOS.52458 – 52459/2018 *(LB-RES) Between:
Mrs. Pramila Aged about 38 years W/o K.S. Chandreshanaika Kattegat Village Hanagodu Hobli Hunsur Taluk Mysuru District. ... Petitioner (By Sri. B. S. Nagaraj, Advocate) And:
1. The State Election Commission Rep. by its Chief Election Commissioner Karnataka State Bengaluru – 560 001.
2. The Deputy Commissioner & Chief Election Officer Mysuru District Mysuru – 570 001.
* Corrected vide chamber Order dated 24.4.2019 3. The Assistant Commissioner & Election Officer Hunsur Sub-division Hunsur Taluk Mysuru District – 571 105.
4. The Election Returning Officer Office of the Thasildar Hunsur Taluk Mysuru District – 571 105.
5. Mrs. K.K. Leelavathi Aged about 38 years W/o K. M. Manchanaika Kattegat Village Hanagodu Hobli Hunsur Taluk Mysuru District – 571 105. … Respondents (By Sri. M.A. Subramani – HCGP for R-2 to R-4; Notice to R-1 dispensed with; R-5 is served) These Writ Petitions are filed under Article 227 of the Constitution of India, praying to quash the order dated 20.08.2018 passed by the Hon’ble Principal Senior Civil Judge and JMFC at Hunsur on interlocutory applications filed by the petitioner herein under Section 151 of CPC Order 16 Rule 1(3) and Order 13 Rule 10 read with Section 151 of CPC in the Election Petition No. 1/2017 at Annexure-A and etc.
These Writ Petitions coming on for Orders this day, the Court made the following:
O R D E R It is noticed that respondent No.5 who is the contesting respondent and the elected member of the Kottegal Gram Panchayat, though served, has remained absent.
2. The petitioner has filed the Election Petition seeking for a declaration that the Election of respondent No.5, who was elected on 29.05.2015 was void, on the ground that respondent No.5 was elected to the seat which was reserved for the Scheduled Tribe Women category, whereas the said respondent does not belong to the said category.
3. During the course of the proceedings, the petitioner had filed application at Annexure-D dated 02.12.2017 seeking to re-open the case which was at the stage of arguments and to permit the petitioner to lead evidence including by taking out summons to the Tahsildar, the Head Master of the School and the Returning Officer.
4. The petitioner had filed an application under Order XVI Rule 1(3) of CPC at Annexure-D1 dated 02.12.2017 seeking to summon the Tahsildar, Hunsur Taluk, the Head Master, Government Primary School, Somawarpete Taluk and the Returning Officer, Kottegala Gram Panchayat.
5. The petitioner had also filed an application, copy of which is produced at Annexure-D2 dated 02.12.2017 under Order XIII Rule 10 of CPC seeking for a direction to respondent No.4 to produce the Caste Certificate produced, affidavit filed by respondent No.5 and also all other documents filed by respondent No.5 at the time of filing the nomination paper. The said applications were dismissed as per the order dated 20.08.2018. The said order has been challenged in the present proceedings.
6. The petitioner states that the main allegation is that respondent No.5 has obtained the Caste Certificate fraudulently and the said respondent does not belong to the reserved category, benefit of which was claimed respondent No.5 elected.
7. The petitioner states that respondent No.5 while obtaining the Caste Certificate and also while setting up her defence, has relied on the certificate issued to one R.S. Ravi Shankar, whom the petitioner claims to be her brother. However, it is contended by the petitioner that the said fact has been disputed and in order to prove the case of fraudulent obtaining of Caste Certificate, the petitioner has sought for summoning of the relevant documents including examining of the Tahsildar and the School Head Master.
8. The petitioner has sought for obtaining of Caste Certificate produced by respondent No.5 at the time of filing the nomination paper as well as the affidavit filed by respondent No.5 and other documents filed by respondent No.5 at the time of filing of nomination paper. If the said documents sought to be summoned would enable the petitioner to prove her case including as regards the ineligibility of respondent No.5 to claim the benefit of reservation as the manner of proof of the defence is a matter solely in the discretion of the petitioner. Hence, the dismissal of the said application require interference.
9. The petitioner has also sought to summon the Tahsildar Grade-2, Hunsur Taluk, the Head Master, Government Primary School, Guddehosuru and the Returning Officer. The summoning of the said witnesses also appears to be to put forth the case as regards the veracity of the documents that are sought to be summoned from respondent No.4 who is the Returning Officer. The summoning of the said witnesses and the application seeking to re-open evidence cannot be found fault with. In light of the reasons assigned for summoning of documents and examining the witnesses as sought for under the application, the applications are required to be allowed.
10. Accordingly, taking note of the submissions made and the reasons assigned and also noticing that the manner of conduct of trial is a matter that is to be left to the discretion of the petitioner, it is a appropriate case for allowing Interlocutory Application at Annexures-D, D1 and D2. The petitioner to co-operate for expeditious disposal of the proceedings before the Tribunal.
Accordingly, the petition is allowed and the applications filed seeking (a) re-opening of the case (application at Annexure-D);
(b) summoning of witnesses (application at Annexure-D-1) and (c) summoning of documents (application at Annexure-D-2) are allowed, subject to the above observations.
Sd/-
JUDGE SJK