Karnataka High Court Sets Aside Election Of Congress MLA From Malur Constituency, Stays Order For 30 Days To Allow Him To Approach SC

The Karnataka High Court on Tuesday set aside the 2023 election of Congress Member of Legislative Assembly (MLA) K Y Nanjegowda representing Malur constituency (Kolar district).

During the 2023 assembly election, Nanjegowda won by a margin of 248 votes against BJP candidate KS Manjunath Gowda.

Justice R Devdas, while allowing the petition filed by defeated candidate KS Manjunath Gowda said:

“The elections petition is allowed in part directing recounting of votes and then to declare the results afresh. The election of Respondent no 1 to Malur Assembly constituency in Kolar District during the election held in May 2023, is hereby set aside.”

It added “The Election Commission of India is directed to ensure recounting of votes and declaration of results afresh of Malur assembly constituency within four weeks from the date of the receipt of this judgement. All other procedures after declaration of results shall be followed in accordance with law.”

It also directed ECI to take note of the fact that the District Election Officer has failed to furnish the video recording before the high court, and thus appropriate action be taken against the District Election Officer in accordance with law.

Following the court pronouncing the order, the respondent MLA (K Y Nanjegowda) filed an application seeking stay of the judgment to enable him to challenge it in the Supreme Court.

Allowing the same the high court said, “The prayer made by the respondent no 1, and the submission made by the counsel cannot be said to be unreasonable. In that view of the matter the said application is allowed. The judgment passed by this court today shall stand stayed for a period of 30 days to enable respondent no 1 to approach the Honourable Supreme Court.”

Background

The plea had sought recounting of votes at 149-Malur assembly constituency and to declare the petitioner –KS Manjunath Gowda, as having been elected on the basis of the votes secured by him or in the alternative on the basis of the results of the recount.

It had sought to set aside the election of Nanjegowda as being void and to declare the petitioner as the elected candidate to the assembly constituency.

The petitioner had contended that the Returning Officer and his team of Election Officers had obtained signatures of the counting agents of the petitioner even before the EVMs were opened, in violation of Rule 66A of the Rules, 1961. The Returning Officer did not pass any order on the application for recounting filed by the petitioner.

Further, there was wrong tabulation of the votes by the Returning Officer, and the signature of the counting agents of the petitioner have not been obtained in many of Form-17C Part II and in that regard, the Returning Officer has contended during his examination that the counting agents of the petitioner were not available at the table. Moreover, unauthorised persons were permitted to enter the counting centre, etc.

Findings

The bench noted that the video recording of the counting process is not made available to this Court for verification. It then said, "The veracity of such allegations could be easily verified by looking at the videograph."

Following which, it said, "This Court is also of the considered opinion that the petitioner has given sufficient details of the discrepancies in the process of counting. The petitioner has been able to point out various Form-17C Part II documents where the signatures of the petitioners counting agents are not found. In some documents, the petitioner has been able to point out signatures of fictitious persons signing as the counting agent of the petitioner.The Returning Officer and the other officials have admitted that a copy of the order passed by the Returning Officer, in respect of the application for recounting, was retyped."

It added, "This, coupled with the fact that the original order dated 15.05.2023 is not available with the Returning Officer and was not found along with documents presented from the strong room, has created sufficient doubt in the mind of this Court that the Returning Officer may not have passed an order on the day of counting. If it is found true that no order was passed by the Returning Officer on the application for recounting, this Court can proceed to hold that the Returning Officer has violated a mandatory provision of the statute."

Thus, it held "Since the recordings are not available, this Court should draw an adverse inference against the Returning Officer, that he did not pass any order."

It also rejected the contention of the respondent that the requirement of video recording the process of counting is contained in the Handbook for Returning Officers, which are only guidelines to the Returning Officers, and therefore, it cannot be considered as a mandatory provision.

Case Title: K.S MANJUNATH GOWDA AND K.Y.NANJE GOWDA & Others

Case No: Election Petition 10 OF 2023.

Citation No: 2025 LiveLaw (Kar) 309

Appearance: Senior Advocate Jayakumar S Patil for Advocates Shrihari A V, Sanjana Reddy, Raghavendra S V, Thurumalesh H K for Petitioner.

Senior Advocate Nalina Mayegowda for Advocates Mahendra Gowda C R, Venkatesh H K for R1.

Advocates Deepak S Shetty, R Vybhav for R13.

Click Here To Read/Download Order