HONNAPPA K H Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) Though this petition is posted for orders, it is taken up for final hearing on a submission made by the learned counsel appearing for both the sides that the main petition ifself be heard instead of hearing and deciding the interlocutory application.

(2.) In this, petition under Art. 226 and 227 of the Constitution of India, the petitioner has sought for a writ of certiorari to quash Annexures 'A' and 'B' dated 2-4.82 and also to pass such other orders as are deemed fit under the circumstances of the case. Annexures 'A' and 'B' are dated 2.4.82 Annexure-A is the notice of the bye election proposed to be held to the office of the President, Town Municipal Council, Kadur under Rule 3(1) of the Karnataka Municipalities (President and Vice President) Election Rules 1965 (hereinafter referred to as the 'Rules') . Annexure-B is another notice issued by the Election Officer stating that a meeting of the Municipal Councillors will be held on 16.4.82 at 11.00 a.m. to elect the President, Town Municipal Council in question and voting will take place from 11.00 a.m. to 12 noon and thereafter counting of votes also will take place. Pursuant to the notice issued under Rule 3 (1) of the Rules, the petitioner and the additional respondent Sri K. M. Ramaswnmy (the application for impleading Sri K. M. Ramaswamy has been allowed to-day by a separate order) have filed nominations to contest for the office of the President of the Town Municipal Council, Kadur. It is at this stage that the validity of the aforesaid notices (Annexuros 'A' & 'B') have been challenged. In the first instance by an interim order the entire election was stayed. But subsequently on 15.4.82 it was modified and the elecction was allowed to take place, but the counting and declaration of the result of the election was stayed. Accordingly the election has now taken place. The counting and declaration of the result of the election could not take place because of the interim order passed by this court.

(3.) The one and the only contention urged by Sri H. B. Datar, learned counsel for the petitioner is that the notice in Form No. 1 published under Rule 3(1) of the Rules is not served upon the petitioner as required by R. 3(5) of the Rules, therefore, the entire election process is vitiated. It is contended, that a copy of the notice published in Form No. 1 under Rule 3(1) of the Rules is actually required to be served upon every councillor as per sub-rule (5) of rule 3 thereof and in the absence of such actual service the entire process of election gets vitiated and the Election Officer will not have jurisdiction to proceed further in the matter. It is also further contended by the learned counsel that the learned single Judge of this Court in Thammiah B v. Election Officer, Banawar (1) while interpreting R. 3(5) of the Rules in question following a decision of the Supreme Court in K. Narasimhiah v. H. C. Singh Gowda (2) has held that in the absence of actual service of the notice, which may even take place by refusal of the addressee, there is no compliamce with Rule 3(5) of the Rules, therefore, the notice published as per Rule 3(1) of the Rules is bad in law. It is also further submitted that the decision of a Bench of two Judges of this Court reported in the case of S. Ramaiah v. State of Mysore (3) has no application to the present case, because in that case what is interpreted is Rule 9(1) of the Rules and not Rule 3 (5) of the Rules. Therefore, it is submitted that the at'oresaidl decision in Thammaiah's case (1), must be applied to the instant case.