R

IN THE HIGH COURT OF KARNATAKA, BENGALURU  DATED THIS THE 1ST DAY OF APRIL, 2022 

BEFORE 

THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT 

WRIT PETITION NO.23811 OF 2021(LB-ELE)

BETWEEN:

SMT. PRABHAMANI, 

W/O MAHADEVAPPA, 

AGED ABOUT 42 YEARS, 

R/AT BANAVASE VILLAGE, 

KATTAYA HOBLI, HASSAN TALUK, 

HASSAN DISTRICT – 573 201. 

…PETITIONER 

(BY SRI. SATHISH S P, ADVOCATE) 

AND:

1. SMT. HEMALATHA, 

W/O SANTHOSH, 

AGED ABOUT 28 YEARS, 

R/AT BANAVASE VILLAGE, 

KATTAYA HOBLI, HASSAN TALUK, 

HASSAN DISTRICT – 573 201. 

2. RETURNING OFFICER/ ELECTION OFFICER, 

KARLE GRAMA PANCHAYATH, 

DR SHIVARAJU, ASSISTANT PROFESSOR 

GOVERNMENT COLLEGE, 

HASSAN TALUK, 

HASSAN – 573 201. 

3. PRESIDING OFFICER, 

KARLE GRAMA PANCHAYATH, 

HASSAN TALUK, MALLIKARJUNAIAH K S, 

SECONDARY SCHOOL ASSISTANT, 

GOVERNMENT BOYS PU COLLEGE, 

R C ROAD, HASSAN – 573 201. 

4. DISTRICT ELECTION OFFICER/ 

DEPUTY COMMISSIONER, 

HASSAN DISTRICT, HASSAN – 573 201. 

 … RESPONDENTS 

(BY SRI. BASAVARAJU H T, ADVOCATE FOR R1;   SMT. PRATHIMA HONNAPURA, AGA FOR R4) 

THIS WRIT PETITION IS FILED UNDER ARTICLES  226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING  TO SET ASIDE JUDGMENT/ORDER DATED 10.11.2021  MADE BY THE HONBLE SENIOR CIVIL JUDGE AT HASSAN  IN ELEC.C.2.2021 VIDE ANNEXURE – A AND ETC., 

 THIS PETITION COMING ON FOR PRELIMINARY  HEARING THIS DAY THROUGH PHYSICAL HEARING, THE  COURT MADE THE FOLLOWING:- 

ORDER 

 Petitioner, a Returned Candidate of Karle Grama  Panchayat whose election having been set at naught, the  first respondent has been declared as having been duly  elected in her stead by the Election Tribunal, is knocking  at the doors of Writ Court for assailing the order dated  10.11.2021 entered in ELEC. C 2/2021 a copy whereof is  at Annexure-A. 

 2. The Election petitioner in the Court/tribunal  below who happens to be the first respondent herein is  represented by her counsel and the learned AGA on  request appears for the fourth respondent. Both they  resist the writ petition making submission in justification

of the impugned order and the reasons on which it has  been constructed and thereby seek dismissal of the writ  petition. 

 3. Having heard the learned counsel for the  parties and having perused the petition papers, this  Court declines indulgence in the matter for the following  reasons: 

 a) The order in challenge relates to jettisoning  the election of petitioner herein and installation of the  first respondent in her stead as the duly elected  candidate of the Grama Panchayat. This order is made  by the statutory Tribunal namely, the Additional Sr. Civil  Judge, Hassan in exercise of adjudicatory power vested  u/S 20 of the Karnataka Gram Swaraj and Panchayat  Raj Act, 1993. The jurisdiction of the Tribunal is not in  dispute although the manner of its exercise is. The case  does not involve infraction of any of the Fundamental  Rights. It relates to only statutory rights namely, right  to continue in office till the expiry of elected tenure.  Matters relating to election, be it to the grass root  electoral bodies such as Grama Panchayats or to the  Parliament, do fall within the realm of law of elections, as

legislated. It is relevant to recall the observation of the  Apex Court in Apex Court in JYOTHI BASU vs. DEBI  GHOSHAL 1982 (3) SCR 318, at paragraph 8: 

“…A right to elect, fundamental though it is to  democracy, is, anomalously enough, neither a  fundamental right nor a Common Law Right. It  is pure and simple, a statutory right. So is the  right to be elected. So is the right to dispute an  election. Outside of statute, there is no right to  elect, no right to be elected and no right to  dispute an election. Statutory creations they  are, and therefore, subject to statutory  limitation. An Election petition is not an action  at Common Law, nor in equity. It is a statutory  proceeding to which neither the Common Law  nor the principles of Equity apply but only those  rules which the statute makes and applies..”. 

In view of the above, the indulgence of this Court is only  under the limited supervisory jurisdiction constitutionally  vested under Article 227, Article 226 having been  insignificantly quoted in the petition. Therefore, a  concrete case of “error apparent on the face of the  record” has to be made out by the petitioner who seeks  indulgence. However, no such case is made out as  discussed below.

 b) The jugular vein of the election petition was  the validity of four ballot papers namely, Ex. P.11 to  P.14, which were excluded from the Court in favour of

the first respondent – Election Petitioner on the ground  that they belonged to a different constituency. Learned  judge of the Court below at paragraph 31 has given  cogent reasons as to why they should be counted, by  observing as under: 

“The materials on record clearly indicates that  the 4 votes rejected as not genuine appears to  be not proper for the reason that the said Ballot  papers have been handed over by the officials  themselves to the voters. The intention of the  voter in making the mark on the symbol under  which petitioner contested the election go to  show that the said vote was casted in favour of  the petitioner. Further, the Ballot papers which  were admittedly handed over by the respondent  No.3 to the voters have been treated as not  genuine, which cannot be accepted because  admittedly the same are issued by respondent  No.3. Further, it is to be noted that by declaring  the said 4 votes as not genuine, the result of the  election has been materially affected resulting  injustice to the petitioner. Another aspect to be  noted is that as per Ex.p1, respondent No.1  obtained 232 votes and the petitioner obtained  231 votes. There is a difference of only one vote  tot eh Returned Candidate. When there are  materials on record to show that the said  rejected votes were casted in favoru of the  petitioner, 4 votes have to be added to the total  number of votes obtained by the petitioner.  Thereby, the total numbers of votes obtained by  the petitioner amounts to 235. Therefore,  petitioner is entitled for the relief sought for.” 

 c) Psychologically, symbols have deep rooted  emotive content being descriptively used since antiquity

and before. To elucidate upon this aspect, it would be profitable to refer to the words of CARL G. YUNG in his  book Man and his Symbols(1961) at page 232: 

”…The history of symbolism shows that  everything can assume symbolic  significance: natural objects (like stones,  plants, animals, men, mountains and  valleys, sun and moon, wind, water, and  fire), or man-made things (like houses,  boats, or cars), or even abstract forms (like  numbers, or the triangle, the square , and  the circle). In fact, the whole cosmos is a  potential symbol. Man , with his symbol

making propensity, unconsciously  transforms objects or forms into symbols  (thereby endowing them with great  psychological importance ) an d expresses  them in both his religion an d his visual art.  The intertwined history of religion and art,  reaching back to prehistoric times, is the  record that our ancestors have left of the  symbols that were meaningful and moving  to them. Even today, as modern painting  and sculpture show, the interplay of  religion and art is still alive. 

It is relevant to mention what Felix Frankfurter, J. of U.S.  Supreme quoting Justice Oliver Wendell Holmes in  MINERSVILLE SCHOOL DISTRICT v. GOBITIS, 310  US 586 (1940) had said ‘we live by symbols’ 

d) In this backdrop, the election symbols of the  candidates or their political parties through which they  are put in the fray assume a lot of significance. These

symbols are normatively by the jurisdictional authorities  constituted under law. The election symbols play a vital  role inasmuch as, ordinarily, the electors identify their  candidates on the basis of symbols with which they  contest in the elections, and vote. It is more so in the  case of election to ‘grass-root’ level local bodies like the  one in this case. The Apex Court while considering the

importance & value of election symbols in  SUBRAMANIAN SWAMY vs. ELECTION  COMMISSION OF INDIA, (2008) 14 SCC 318 at  paragraph 34 observed as under: 

“…A symbol is not a tangible thing nor does it  generate any wealth, it is only the insignia which  is associated with the particular political party so as to help the millions of illiterate voters to  properly exercise their right to franchise in  favour of the candidate of their choice belonging  to a particular party. In the election process it is  not merely the individual candidate’s personality  or his identity that weighs with the voters. It is  undoubtedly a very relevant factor but along  with it the voter also can and does vote in favour  of the party. It is under such circumstances that  the symbol becomes relevant and important…” 

e) When the margin of votes for electoral  victory is very small, as is the case at hands, the scrutiny  of the ballot papers assumes greater significance, may  be a realistic view. In the election in question, though

the ballot papers belonged to other constituency, there is  irrefutable evidence on record that they were utilized for  the election in this constituency; they had the same  electoral symbol; they were taken & used for the  constituency in question after scrutiny by the  jurisdictional authorities; the voters acted upon the same  accordingly. The electors made mark upon the same. It  is nobody’s case that the mark found on these ballot  papers were fake, forged or otherwise illegal. Some  insignificant lapses do happen in election process, more  particularly in rural areas, cannot be disputed. Added,  there is admission of the petitioner that these ballot  papers did not come from the ‘farthest land’, as to be  called ‘alien’ to the election in question. Therefore, the  Election Tribunal rightly faltered their exclusion from  counting and thereby, reckoned them to the account of  Respondent–Election Petitioner, who eventually has been  declared as duly elected, after invalidating the election of  Returned Candidate as provided under Section 16(3) of  the 1993 Act which reads as under: 

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.” 

 f) The last vehement submission of learned  counsel appearing for the Returned Candidate that by  a very small margin the election of his client has been  set aside and therefore, an eminent case arises for  indulgence of the Writ Court, for restoring his position,  is bit difficult to countenance. Precedentially, the

Vajpayee led NDA–Government was toppled for want  of one vote, failing to secure a confidence vote on 17th April 1999. That is the value our system attaches to  every vote. As an epilogue, it is pertinent to  reproduce the following stanza by BENJAMIN  FRANKLIN (1706 – 1790): 

“For want of a nail, the shoe was lost. 

 For want of a shoe, the horse was lost. 

For want of a horse, the rider was lost. 

For want of a rider, the battle was lost. 

For want of a battle, the kingdom was lost,  And all for the want of a horseshoe nail.” 

 In the above circumstances, this writ petition  being devoid of merits, is liable to be rejected and  accordingly it is, costs having been made easy.

10 

 This Court places on record its appreciation for  the assistance rendered by arguing counsel namely,  Shri. Sathish S.P. & Shri Basavaraja H.T. & Smt.  Prathima Honnapura, learned AGA appearing for the  parties and Official Law Clerk cum Research Assistant

of the High Court, Mr. Faiz Afsar Sait. 

Sd/- 

JUDGE 

Bsv 

Comments

Leave a Reply

Sign In

Register

Reset Password

Please enter your username or email address, you will receive a link to create a new password via email.