PIDASHETTI MURIGENDRA MALLAPPA Vs. KARADI SHRISHAIL RUDRAYA & ORS.

JUDGEMENT

(1.) Under the provisions of the Karnataka Municipalities Act of 1964 (herein. after referred to as 'the Act) and the Karnataka Election of Councillors Rules of 1977 (hereinafter referred to as the Rules'), the Tahsildar, Jamakhandi, who had been appointed as the Returning Officer for holding elections to the Jamakhandi Town Municipal Council (hereinafter referred to as 'the T.M.C'), on 23-4-19.9 issued the calendar of events. Before the time and date appointed for receipt of nominations, the petitioner, respondent Nos. 1 to 9 filed their nominations from Ward No. III of the said T.M.C. which were accepted as valid. On 27-5-1979 poll was held to ward No. III and the other wards of the TMC. At the counting of votes on 28-5-1979 while the petitioner secured 678 votes, respondent Nos. 1 and 7 secured 679 and 938 votes respectively and therefore the Returning Officer has declared them as duly elected to the two general seats and respondent No. 9 as duly elected to the reserved seat. Evidently after the completion of the counting of votes, the petitioner moved the Returning Officer to recount the votes, between him and respondent No. I by stating as under

(2.) Apart from re asserting the allegations made by him in his second application seeking for re-count (Ext. A), the petitioner has asserted that certain persons who are not eligible to vote have voted, that the three 'tendered votes' should also have been counted and the action of the Returning Officer not to count them was illegal. He has also alleged various other irregularities in the scrutiny and counting of votes by the Returning Officer. But, at the hearing of these writ petitions, Sri G.B. Raikar, learned counsel for the petitioner, did not urge any of those contentions and addressed his arguments on the bas's that all the votes cast in favour of the petitioner and others were valid votes. He also did not address any arguments as to why the proviso to sub-rule (1) of Rule 61 of the Rules is invalid. I will therefore proceed to examine the case of the petitioner as presented by Shri Raikar at the hearing of the case

(3.) Shri Raikar contended that having regard to the difference of only one vote between the petitioner and respondent No. 1, the Returning Officer was under a legal obligation to recount the votes and on his failure to exercise that power, it is a fit case in which this Court should direct the Returning Officer to recount the votes. He maintained that the relief of recount sought by the petitioner cannot be adjudicated in an Election Petition by the Election Tribunal and therefore the only remedy available to him for that relief is under Art. 226 of the Constitution and therefore it is a fit case in which this Court should exercise its extraordinary jurisdiction in favour of the petitioner.