APPAYYA MANIYANI Vs. B S KULAL

JUDGEMENT

(1.) THIS petition is directed against the order dated 20. 9. 1997 passed by the Election Tribunal (Civil Judge, Senior Division, Puttur), dakshina Kannada, rejecting I. A. II filed by the present revision-Petitioner with a prayer to the effect that the petition lacks material particulars and as such, it should be rejected. The Election Petition in this case has been filed under Section 21 of the Karnataka municipalities Act, 1964. Section 21 provides a right to a candidate for the office of Councillor as well as to voter of the division concerned to file any Election Petition challenging the election of returned candidate. Sub-section (1) provides that no election of a councillor shall be called in question except by an election petition presented to the Election Tribunal within fifteen days from the date of the declaration of the result of the election. Section 21 (4) provides that,

(2.) THE Election Petition in this case has been, filed only on the ground specified by Clause 23 (d) (iii) i. e. , improper acceptance or refusal of any vote or reception of any vote which is void. The returned candidate ie. , the present revision petitioner filed the application I. A. II for striking out the pleadings as well as for rejection of election petition for want of particulars. It was stated that the election Petition, vide paragraph 5 (1), (2) (3) and (4), lacks material points and particulars. Vide paragraph 5, as mentioned earlier, the ground alleged is. about the illegal rejection of validly cast votes in favour of the election petitioner. As per petitioner's case counting of invalid votes as valid in favour of the returned candidate has been done. It has been stated that rejection of ten votes as invalid is not correct. It has also been stated by rejection of ten votes as invalid, there has been a wrong decision by the respondent No. 3 in rejecting the votes polled in favour of the election petitioner and that the 3rd respondent rejected that some votes polled in favour of the petitioner wrongly. The petitioner has alleged that the election has been vitiated by acceptance of some votes cast in favour of 1st respondent and 2nd respondent in the election and refusal of votes cast in favour of the petitioner as invalid. As regards paragraph 5 (2) whatever particulars at that time could be given with respect to declaration that rejection of 10 votes as invalid was not a correct decision. The petitioner very clearly says that out of those ten votes, the votes that have been rejected as invalid and particularly those polled in favour of the petitioner, the decision was wrong. Atleast particulars about ten votes which were alleged to be invalidly rejected as invalid votes should have been given. No doubt in paragraph 5 (1) and 5 (3)the allegations were some what vague that even number is not given that how many other valid votes polled in favour of the petitioner were declared to be invalid erroneously or illegally by the returning officer nor the number has been given how many invalid votes of the returned candidate were accepted as valid votes. But paragraph 5 (2) is very clear that as many as ten votes, have been declared invalid which were cast in favour of the petitioner, that can very easily be examined. The Tribunal has rejected the application taking the view that "it appears that the petitioner herein has not furnished the material facts and particulars of the votes polled as valid or as invalid votes and alleged to have held incorrectly by the returning Officer and is basing on the gathered information and on the same, it appears that more particulars and facts, if any, to be furnished, the same becomes. a part of evidence which cannot be pleaded at this stage. " It is further observed that most of the facts and particulars involved in the relied on rulings on behalf of respondent No. 1 in support of I. A. II, the facts thereon are not applicable to the present facts of this case and taking this view, the court opined that it is premature stage to strike down paragraph 5 (1) to (4) (wrongly mentioned in IA. II as para 6 (1) to (4) of the election Petition) or rejecting the entire petition and with these observations, the Court rejected the petition. This order has been passed by the Civil Judge acting as an Election Tribunal.

(3.) THE Election Tribunal in the Karnataka Municipalities Act has been defined by Section 2 (9) as under:-