B S YADIYURAPPA Vs. MAHALINGAPPA

JUDGEMENT

(1.) BY this petition, the petitioner has sought a declaration to the effect that declaration of election of the respondent No. 1 vide Annexure-A declaring respondent No. 1 as returned candidate from 167. Shikaripura Assembly Constituency, is illegal, null and void as per Section 100 (b) and (d) (ii) and (iv) of the Representation of the People Act, 1951 and for declaration that the petitioner is the returned candidate from the said constituency as per Section 101 (b) of the Representation of the People Act, 1951.

(2.) THE election to the eleventh Karnataka Legislative Assembly from 167, Shikaripura Constituency and to the 13th Lok Sabha for 21 Shimoga Parliamentary Constituency were held simultaneously on 11-9-1999. The result of that election was declared on 6-10-1999. The 1st respondent in the petition namely Mahalingappa was declared elected to the Legislative Assembly from this constituency. The petitioner has sought the declaration of election to be null and void.

(3.) THE grounds of election and the allegations made thereunder in the election petition are said to be under Section 100 (b) and (d ). The election petitioner in the petition has impleaded the returned candidate as respondent No. 1 and the other candidates namely as respondents 2 and 3. The respondent No. 1 the returned candidate having been elected on the ticket of the Indian National Congress and belongs to the Indian National Congress. In addition to these candidates, the petitioner has impleaded the returning officer as respondent No. 4 and the District Election Officer as respondent No. 5. Among other grounds, one of the ground is that the respondents No. 4 and 5 i. e. , the Returning Officer and the District Election Officer were responsible to conduct elections strictly in accordance with the Constitution of India and the Representation of the People's Act, 1951 as well as the rules and various orders issued by the Election Commission. These respondents, according to the petitioner, were involved in certain irregularities and illegalities including the Rectified Spirit Scandal, as alleged in paragraph 4 of the election petition and in paragraph 10 etc. It was alleged that the respondents No. 1 and 4 devised an elaborate scheme by which the ballot boxes were wreaked and there were alteration and fabrication of records and according to the petitioner, the alleged practises were done with the help of the District Election Officer, the Returning Officer and the Assistant Returning Officer functioning under the 1st respondent to further the prospects of the election of the 1st respondent. It appears in the context of the above pleadings, the Returning Officer, 167, Shikaripura Assembly Segment and District Election Commissioner (District Commissioner), Shimoga Parliamentary Constituency, Shimoga, were impleaded as respondents 4 and 5. 4. After the G. O. Notification of filing of the election petition, respondents filed their written objections as well as raised a preliminary objection. An application was also moved on behalf of the respondent No. 1 as well as respondents 4 and 5. The respondents 4 and 5 moved the application for deletion and striking out of their names from the array of the parties. The respondent No. 1 moved two applications namely, one for removal and striking of names of respondents 4 and 5 on the hand and on the other hand, for the dismissal of the election petition under Section 86 (1) of the Representation of the People Act. According to the respondent/applicant, the petition was liable to be dismissed as respondents 4 and 5 had been impleaded as the parties to the election petition. I mean to say the objection was taken to the effect that the returning Officer and the District Election Officer could not be impleaded as parties in view of Section 82 of the Representation of the People Act. In paragraph No. 3 and 4 of the affidavit to the application under Section 82 read with Section 86 of the Representation of the People Act, 1951, for dismissal of the Election Petition, it has been stated as under:-