- (1.) This appeal under S. 116-A of the Representation of the People Act, 1951, is directed against the decision of the Karnataka High court setting aside the election of the appellant D. B. Raju to the State Legislative council, and directing the recount of the votes after excluding those of 242 nominated members. The election was held by adopting the Single transferable vote method'. The polling took place on 3/07/1988 and the counting was taken up on the next date, that is, 4/07/1988. After several rounds of counting the appellant was declared as the successful candidate.
(2.) The election in question relates to the Chitradurga Local Authorities Constituency, comprising 121 Mandal Panchayats. The last date and time fixed for receiving nomination papers was 3. 00 p. m. on 3/06/1988. According to the appellants case, a decision was taken by the Chitradurga Zilla Parishad in its special meeting held on 28/05/1988 to nominate two members from each Mandal Panchayat, that is, a total number of 242 members. Accordingly, steps were taken under the provisions of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 (hereinafter referred to as 'the Parishads Act') read with the rules framed thereunder, and 242 members were duly nominated in time to be included in the electoralroll. This has been denied by the election petitioner-respondent 1, as also some of the respondents who contested the election. According to their case, the inclusion of the names of the nominated members in the electoral roll took place after the period for nomination was over and they were, therefore, not included in the electoral roll in the eye of law. The main question in the case which thus arises is as to whether the names of the 242 nominated members were included in the electoral roll within the time permitted by the law.
(3.) The Deputy Commissioner, who was impleaded in the election petition as respondent 5 (in this appeal also he is respondent 5, had triple role to play in connection with the disputed election. He was authorised under the Parishads Act and the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats (Conduct of Election) Rules, 1985 (hereinafter referred to as 'the Parishads Rules') to take steps for completing the nomination of the members; under S. 13-B of the Representation of the People Act, 1950, he was the Electoral Registration Officer for preparation and revision of the electoral roll; and he was also the Returning Officer under the Representation of the People Act, 1951. According to the case of the appellant, a resolution was passed by the Zilla Parishad on 28/05/1988 nominating the aforementioned 242 members, and the Chief secretary of the Zilla Parishad sent the list of the names to the Deputy Commissioner on 30/05/1988. The Deputy Commissioner was, under S. 5 (9 of the Parishads Act, required to publish the said names so as to complete the process of nomination. He was also vested with the jurisdiction to include the names in the electoral roll under the provisions of the Representation of the People Act, 1950. It is relevant to note at this stage that the question of inclusion of the names in the electoral roll could arise only after the nomination was complete in the eye of law. A nominated person was entitled to be included as a voter for the election to the council Constituency after he became a member of the Mandai Panchayat and not before. Having learnt about the nominations on the eve of the election, some persons challenged the same and objected before the Deputy Commissioner to the proposed publication. However, the Deputy Commissioner on 1/06/1988 passed an order directing the necessary steps to be taken under the Parishads Act, and accordingly a list of the nominated members was pasted on the notice board of the office of the Deputy Commissioner. Before the nominated persons could be treated to have become members of the Panchayats it was necessary that certain other steps also were taken in accordance with the Parishads Act and the Parishads Rules. Ss. (1 of S. 40 of the Parishads Act, which is mentioned below, makes it clear that anominated person becomes the member of a Mandal Panchayat only on the publication of his name under S. 5 (9: "40.Commencement of term of office.- (1 The term of office of the members elected at a general election or at a second election held under Ss. (7 of S. 5, or nominated shall commence on the date immediately after the expiry of the term of office of the outgoing members of the Mandal Panchayat or the period of appointment of an Administrative Committee or Administrator under S. 8, or on the date of publication of their names under Ss. (9 of S. 5, whichever is later. "the manner of publication of the names has been prescribed by Rule 73 of the Parishads Rules in the following terms: "73.Publication of names of members elected or nominated to Mandal Panchayat. The Deputy Commissioner shall, as soon as conveniently may be, publish the list containing the names of the members elected or deemed to have been elected or nominated to the Mandal Panchayat by causing such list to be affixed on the notice board of his office, office of the Tahsildar, concerned Mandal Panchayat and in the Chavadi. "with a view to complete the nomination, the Deputy Commissioner sent out the names for affixing the same on the notice boards of the office of the concerned Tahsildars and Mandal Panchayats and in the Chavadis. The Deputy Commissioner could have taken steps for inclusion of the names in the electoral roll of the State council Constituency after receipt of the information of their due publication in the offices situated at different places. There is a serious dispute as to when the necessary information became available at Chitradurga and the formal steps of including those names in the electoral roll were actually taken. After examining the evidence led by the parties, the High court has held that the names were not included in the electoral roll by 3. 00 p. m. on 3/06/1988.;