K M GIRISHANKAR Vs. ASSISTANT COMMISSIONAR BELLARY

JUDGEMENT

(1.) In this petition the validity of the declaration of election of Shri B. Jayaram of Sathyanarayanapet, 6th Cross, Door No. 37, Bellary, as per Annexure-B which is a Gazette notification to Division X of the Bellary Municipal Council, is under challenge.

(2.) The facts and circumstances leading to this petition are as follows : Tothe X division of the Bellary City Municipal Council an election was held on 29-4-1990 under the provisions of the Karnataka Municipalities Act, 1964 (in short the Act). Amongst others, the petitioner and respondent No. 3 contested the election to the said division of the Municipal Council from general constituency. The returning Officer after counting the ballot papers in the presence of the agents of the candidates and having entered Form 19 announced that the petitioner had secured the highest number of votes, namely, 1560 and respondent No. 3 had secured 1507 votes and therefore declared the petitioner as having been elected and issued a certificate as provided in Form 20 on 1-5-1990. However in the Gazette notification dated 16th May 1990 respondent No. 3 has been shown to have been elected instead of the petitioner in respect of Division X at serial number 35. The allegation made by the petitioner is that subsequent to the issue of Form 20 the 1st respondent altered the entries in the result sheet by striking off the total number of votes polled in favour of respondent No. 3 from 1507 to 1730.

(3.) It is submitted by the learned counsel for the petitioner that once the certificate in Form 20 has been given as provided under Rule 68 of the Karnataka Mur.icipalities (Election of Councillors) Rules 1977 (in short the Rules) the returning officer has no power to cause the publication of another person's name declaring him as having been elected. The learned Government Advocate however contended that in cases where a mistake creeps in it is open to the returning officer to correct the same before sending Form 19 to the Deputy Commissioner, Commissioner or the Government and even correct Form 20 which is not in conformity with Form 19. He next submitted that if there is any mistake in the declaration of result in the Gazette subsequent to issue of Form 20 it certainly entitles the petitioner to approach the Election Tribunal provided under the Act on the grounds mentioned in Section 23 thereof and in view of the alternative remedy provided under the Act it is wholly unnecessary for this Court to grant any relief to the petitioner. Lastly, he urged that when there is clear material on record to show that the entries made by the returning officer indicating the issue of Form 20 is a clear mistake not warranted by law any relief if granted to the petitioner would perpetuate an illegality and such a course should not be adopted. In answer to this stand of the Returning Officer, the learned counsel for the petitioner submitted that apart from having no power under relevant provision of the Act and the Rules framed thereunder the alterations having been effected without notice to him is absolutely unfair and not proper procedure at all.