H M MUNINARAYANA Vs. CHIEF ELECTORAL OFFICER BANGALORE

JUDGEMENT

(1.) IN K. N. Subba Reddy v. Election Commission of India, reported in ILR 1999 Karnataka 3608, this Court had occasion to examine the jurisdiction of this Court to invoke its power under Art. 226 and subject the election process to judicial review. Therein it was stated as under :"8. I am of the view that no part of the discussion in the above judgment can lend any support to the extreme contention advanced by the learned counsel. As a matter of fact the learned Judges in the above decision after considering various arguments advanced pro and against and after discussing thoroughly the legal consequences observed that, the jurisdiction of the Court at intermediary stage of election is clearly shut out by virtue of Art. 329 (b ). This is what is stated in this behalf in the said judgment. "we have projected the panorama of administrative law at this length so that the area may not be befogged at the trial before the Election Court and for action in future by the Election Commission. We have held that Art. 329 (b) is the bar for intermediate legal proceedings calling in question the steps in the election outside the machinery for deciding election disputes. We have further held that Art. 226 also suffers such eclipse. Before the notification under S. 14 and beyond the declaration under R. 64 of Conduct of Election Rules, 1961 are not forbidden ground. In between is, provided, the step challenged is taken in furtherance of not to halt or hamper the progress of the election.

(2.) THIS dictum according to me squarely covers the present dispute as well. The question raised in this writ petition is the entitlement of the 5th respondent being included in the voters' list of Uttarahalli Legislative Assembly constituency in Karnataka State and his right to be elected to the Council of State (Rajya Sabha ). A writ of Quo Warranto is also sought against the 5th respondent to call upon him to show under what authority he holds the seat. The petitioner alleges that the 5th respondent is a permanent resident of and a voter in Hyderabad of Andhra Pradesh. He alleges that he was surprised to note of his being included as a voter in a constituency in Karnataka State on the basis of which he contested to Rajya Sabha and got himself elected. On enquiry he discovered the following details. According to the petitioner on 28-1-1998 the 5th respondent had sought for inclusion of his name in Uttarahalli Legislative Assembly constituency, Bangalore. On 24-2-1998 it is seen objections were invited to this application and time was given for filing the objection till 9-3-1998. No objections were filed by anybody. On 10-3-1998 the 5th respondent's name was included in the voters' list at Part 272, Malgalu Village of 89 Uttarahalli Legislative Assembly constituency. The petitioner alleges that there is an inherent defect in the order, in that, the Electoral Registration Officer appointed under Section 13-B of the Representation of the People Act, 1950 (hereinafter referred to as the 1950 Act) for the Uttarahalli Legislative Assembly Constituency is the 2nd respondent whereas the power of including the 5th respondent in the voters' list of the said constituency has been exercised by the 3rd respondent. Aggrieved by the inclusion, the petitioner filed an appeal before the 1st respondent who entertained the appeal, though belated and dismissed the same by Annexure-J Order on merits. The present writ petition is filed by the petitioner inter alia challenging the order Annexure-J made by the 1st respondent, on various grounds. As also, as stated he has sought for a writ of Quo Warranto in respect to the 5th respondent holding the seat as a Member of the Rajya Sabha.

(3.) MR. Shantharaju, learned counsel for the petitioner urged several contentions in support of his contentions. According to him the order passed to include the 5th respondent in the voters' list of the said constituency is totally without jurisdiction and non est and having been issued by an officer who is totally incompetent to deal with the application for such registration/inclusion. The said order is an ultra vires exercise of the power. He preceded the contention by relying on Annexure-K whereby the 2nd respondent has been nominated to exercise the power of the Electoral Registration Officer of that particular constituency. In the instant case, the said power is exercised by the 3rd respondent.