CHANABASAPPA SHIVAPPA Vs. GURUPADAPPA MURIGAPPA

JUDGEMENT

(1.) This application relates to the validity of an order made by the learned Judge who decided an election case By which he ordered that the election of the petitioner be set aside and respondent 1 be declared duly elected. The matter arises in this way : The election in question was held on 3-6-1957, to Ward No. 5 of the Athani Municipality, Belgaum District. On 5-6-1957, the scrutiny was made and the results were declared. The petitioner was declared elected along with two others, it being a three-seated constituency. Respondent 1 before us, applied to the District Judge, Belgaum on 12-6-1957, for setting aside the election and for an order that he should be declared elected. The grounds taken by the respondent in his said application inter alia were that there were corrupt practices committed in the said election and there was partiality of one Kulakarni who was the Chairman of the Municipality and the Chairman of the scrutiny committee. It was also alleged that certain votes of persons who were already dead at the time when the election took place, were recorded in the said election and the petitioner before us got those votes recorded in his favour.

(2.) The learned Extra Assistant Judge who determined the said election petition, came to the conclusion that there were no corrupt practices committed for the purpose of the election and that there was no partiality on the part of the Chairman of the Municipality who was also the Chairman of the scrutiny committee. But he held that in the facts of this case, it was necessary to have a scrutiny and recounting and accordingly made an order directing the scrutiny and recounting of the votes in question.

(3.) The scrutiny was done by two Commissioners appointed by the learned Judge. They submitted their report to the learned Judge. It appeared from the said report that the total number of votes secured by the petitioner was 251 and the total number of votes secured by respondent No. 1 before us was 249 votes. The learned Judge examined those votes and on such examination, found that one of the votes cast in favour of the petitioner, was cast on behalf of a person who was already dead and therefore he excluded that vote from counting. He further found that so far as the respondent 1 before us was concerned, one vote was excluded without any justification and he held that that vote should be held to have been cast in favour of the said respondent. It appears that the said vote was cast by putting the cross mark by the side of the Symbol and the learned Judge held that there are many other instances where votes had been cast like that but they were admitted and he further came to the conclusion that the intention was clear that the said vote was intended to be cast in favour of respondent 1. The result of his findings was, that both the petitioner and respondent 1 secured equal number of votes, i.e., 250 votes each. That being the position, a lot was drawn in the presence of the Judge and in the presence of the parties under Sub-section (3) (b) second proviso of Section 22 of the Bombay District Municipal Act, 1901. In that lottery, two chits in the name of each of the parties, viz., the petitioner and the respondent 1, wore written and folded and were picked up by a stranger. The chit containing the name of respondent 1 was picked up and consequently he was declared as elected by the learned Judge. The result was that the petitioner's election was set aside and respondent 1 was declared duly elected as a successful candidate.