MOHAN KRISHNA SHETTY Vs. DINAKAR KESHAV SHETTY

JUDGEMENT

(1.) THIS petition is filed under Section 81 of the Representation of the People Act, 1951, (hereinafter called 'the Act') challenging the election of respondent No. 1 to the Kumta Legislative Assembly Constituency - 78, Uttara Kannada District (hereinafter called 'the Kumta Constituency') seeking for the following reliefs:-

(2.) DURING the pendency of the Election Petition, the original petitioner died on 29.12.2008 and a notification was issued and Smt. Sharada, the wife of the original petitioner and a voter from the Kumta constituency, made an application for continuing the proceedings and the said application for substitution was allowed and applicants were permitted to continue the proceedings as per the order dated 22.01.2010.

(3.) IT is further averred in the Election Petition that Sri Monte Fernandes, one of the polling agents of the original petitioner raised objection and he requested for re-counting of votes on the ground that there was discrepancy in the counting of postal ballot papers as per Annexure 'C' to the election petiton. The Returning Officer, without giving an opportunity to the aforesaid agent of the original petitioner, proceeded to reject the request of the agent of the original petitioner as per Annexure 'D' to the election petition. The agent of the original petitioner gave another application (Annexure 'E' to the petition) to the Returning Officer - Respondent No.8 in continuation of his earlier application - Annexure 'C earlier before the results were declared for recounting of the votes and the said application was also rejected by the Returning Officer stating that there was no mistake in counting and proceeded to declare the result of the election and declared the first respondent as having elected from Kumta Constituency. IT is averred that there is discrepancy in the votes shown in the General Statistics and Form No.20 in respect of the votes recorded in EVMs. In SI. No.67 of the General Statistics, the total votes polled was shown as 815, whereas in the final result in Form No.20, it was shown as 813. IT is further averred in the petition that large number of persons posed themselves as real voters and exercised the votes and thereby prevented the real voters from exercising their votes in the election. About 14 real voters came forward to apply for ballot papers, after other persons had already voted as such voters. After satisfying about the identity of each one of them, the Election Officer allowed them to mark ballot papers (tendered ballot paper). However, the Returning Officer did not take into account the tendered votes in the manner in which it ought to have been taken into account in view of the narrow margin of 20 votes between the original petitioner and respondent No. 1 and non-counting of tendered votes has materially affected the result of the original petitioner in the election. IT is further averred that as per the grounds urged as referred to above, the original petitioner is entitled to the prayers sought for in the election petition.