ABDUL NABI Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) The point for consideration in this petition is whether the petitioners could challenge the validity of the elections held under the provisions of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats of 1983 (in short the Act) without availing themselves of the specific remedy provided under Rule 10 of the Karnataka Mandal Panchayat (Election of Pradhan and Upapradhan) Rules, 1987. Certain facts which are not controverted may be noted before going to the rival contentions of the parties.

(2.) The petitioners are the elected members of the Mandal Panchayat. There are 22 elected members in that Mandal Panchayat and two nominated members. 19 members belong to Congress-I Party, three to Janatha Party and two are nominated members. It transpires that the first meeting of the members of the Mandal Panchayat was fixed at 11.00 a.m. on 21.04.1987. That meeting, according to the petitioners was attended by only 10 members including the nominated members. But these petitioners so also certain other members who have filed their affidavits in support of the petitioners' case were physically prevented from attending the meetings by the supporters of Janatha Party with a view to defeat the chances of Congress-I Party members including the petitioners being elected, though they had a commanding majority. Their specific allegations are against respondent-5 who is a M.L.A., respondent-3 who is the Pradhan and Respondent-4 who is the Upapradhan. According to the petitioners, respondent-5 though he had no voting right and could not participate in the proceedings of the Mandal Panchayat, he threatened the authorities and took an active part in promoting disturbances at the main gate and thereby prevented the petitioners and other members who would have voted for the petitioners from participating in the elections for the posts of Pradhan and Upapradhan. The allegations made by the petitioners are of very serious nature. It transpires that respondents-3, 4 and 5 managed to get a huge mob armed with cycle chains, Chilly powder and soda bottles etc., and this mob physically prevented the petitioners and their supporters from entering the meeting hall. Two women members who accompanied the petitioners to attend the meeting were stopped, stripped naked and chased on the street by the fiendish mob. The entire village was aghast by the mob fury created by the 5th respondent. Thus about 14 members were prevented from entering the meeting hall under the threat of bodily injury and criminal intimidation and they have sworn these facts in their affidavits which are produced as Annexures-Cl to C-10.

(3.) In the return filed by the contesting respondents they have raised various disputed questions of facts. They have submitted that the petitioners have deliberately absented themselves and therefore, they cannot be permitted to approach this Court directly to raise contentions which require detailed investigation by cross-examination and that it would be highly unsafe to decide the rights of the parties only on the basis of the affidavits on the peculiar facts and circumstances of this case; that there is no collusion between the Prescribed Officer and the contesting respondents as alleged by the petitioners; that in any event, the petitioners' remedy is to file an election petition since the election has already been concluded and the results have been declared. On these contentions, the first question that requires to be considered is-