H M NAGARAJU Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THE petitioner who is the elected member of the Duggatti Grama panchayath has filed an election petition in the Court of Munsiff at chamarajnagar in Election Petition No. 1 of 1996 challenging the election of the 3rd respondent to the post of Adhyaksha on the ground that the election of the 3rd respondent is illegal and void as it is contrary to the rules provided for election to the post of Adhyaksha and Upadhyak-sha. The learned Munsiff by his order dated 31st May, 1996, dismissed the election petition upholding the election of the 3rd respondent. This order is called in question by the petitioner in this writ petition.

(2.) THE learned Counsel for the 3rd respondent raised a preliminary objection that the Writ Petition is not maintainable under Articles 226 and 227 of the Constitution of India on the ground that the order of the munsiff is revisable under Section 115 of the CPC. In support of this contention, he relied on the decision of this Court in H. V. Venkatesh v election Offtcer-cum-Tahsildar, Mulbagal Taluk, Kolar District and others. This Court in the above decision has held that the Munsiff who has been conferred with a power to decide the election dispute could be equated with the Munsiff Court and therefore, the order passed by the munsiff is revisable by this Court under Section 115, CPC. No doubt the order passed by the Munsiff is revisable under Section 115 of the CPC, but at the same time, it cannot be said that the order of the Munsiff cannot be challenged by way of a writ petition under Articles 226 and 227 of the Constitution of India. The power conferred on this Court under Articles 226 and 227 of the Constitution of India cannot be taken away by the statute except by way of an amendment to the Constitution of India. Therefore, the contention of the learned Counsel for the 3rd respondent that the writ is not maintainable has no substance and accordingly, this preliminary objection raised by the Counsel for the 3rd respondent is rejected.

(3.) THE facts of this case are, the 2nd respondent is a person appointed as an Election Officer to hold the election to the post of Adhyaksha and upadhyaksha of the Grama Panchayath. He issued the notice calling for the meeting of the Grama Panchayath for the purpose of election to the post of Adhyaksha of the Grama Panchayath. As per this notice, any member of the Grama Panchayath can file nomination on or before 1. 00 p. m. on 28-12-1995 offering himself as a candidate to the post of Adhyaksha. Respondent 3 filed his nomination at 12. 15 p. m. on 28-12-1995. As nobody raised objection to the acceptance of the nomination filed by respondent 3, the election was held as scheduled. In the election, petitioner and 3rd respondent secured six votes each. In view of the equality of votes, the Returning Officer has drawn the lot and declared the 3rd respondent as elected. This election of the 3rd respondent was challenged by the petitioner by way of an election petition as stated above.