R. Basavaraj vs State of Karnataka and others. Writ Petition 11566/2020 decided on 19 November 2020.
Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348982/1/WP11566-20-19-11-2020.pdf
Held: Paragraph 21..Alternate remedy -…Rule 15 (1) provides that the validity of the election of the President or the Vice-President may be called in question by a petition presented to the District Judge, within seven days from the date of declaration of the election, by any candidate at such election or by three or more Councillors joined together as petitioners. Clause (3) of Rule 15 provides that the petitioner shall join as respondents to his petition where the petitioner in addition to claiming a declaration that the election of the returned candidate is void and claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and when no such further declaration is claimed, only the Returning Officer as respondent. Rule 17(a)(ii) enumerates the grounds for declaring the election of the returned candidate as void, that being, non-compliance of the provisions of the Act or any of the Rules.
22. …A plain reading of the above provisions, do not envisage or invest powers with the District Judge to go into the question of the validity of reservation notification. Rule 17 invests power in the District Judge, in a duly constituted Election Petition, to declare the election of the returned candidate to be void, if in the opinion of the District Judge the ‘result’ of the election has been materially affected by any non- compliance with the provisions of the Act or of any of the Rules. A plain reading of the said provision would mean and refer to the action and conduct of the returned candidate in not complying with the provisions of the Act or the Rules. By any stretch of imagination, these provisions cannot be interpreted in a manner that the law invests powers in the District Judge, while dealing with an Election Petition, to declare a notification issued under Rule 13 and 13-A of the Rules as void or illegal.
23. A co-ordinate Bench of this Court in the case of Mr.Ravindra Nayak Vs. Karnataka State Election Commission and Others reported in ILR 2019 KAR 1409, while considering the question of alternate remedy in the matter of reservation and rotation of seats arising out of the Karnataka Municipal Corporations Act, but while dealing with similar provisions of law, noticed the decision of the Apex Court in the case of Bharati Reddy Vs. State of Karnataka and Others (2018) 12 SCC 61. The Apex Court in the case of Bharati Reddy has held that judicial review is a part of basic structure and therefore the exercise of power under Article 226 of the Constitution of India cannot be said to be an absolute bar, though it is left to the discretion of the Court as to whether such power is to be exercised in a 65 particular case. While interpreting Section 35 of the Karnataka Municipal Corporations Act, 1976, which appears to state that the election petition could be preferred to redress a grievance where there has been non-compliance of the provisions of the Act or Rules, or orders made thereunder, the co-ordinate Bench has held that the principle of rotation as envisaged by the Guidelines is not merely a private right of a contestant but is a statutory requirement and such grievance if left open to be raised by every individual contestant subsequent to the announcement of results would not only be impractical, but an illusory alternative remedy, and in fact no remedy at all in the light of the discussion therein. This Court is in respectful agreement of the decision of the co- ordinate Bench. Therefore, in the matter of reservation of the Offices of President and Vice- President and for that matter to post of Councillors, Election Petition as provided under Rule 15 of the Rules is not a remedy.
Compiled by S. Basavaraj, Advocate, Daksha Legal
Daksha Legal 