Judgment:
1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE25H DAY OF JUNE, 2018 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.16518 OF2018LB-ELE) BETWEEN: SMT. ISHRATH BANU W/O SRI IRISHAD PASHA AGED ABOUT51YEARS ZILLA PANCHAYAT MEMBER CHAMARAJA NAGAR R/AT NO.7/496, 6TH CROSS BASAVESHWARA NAGAR KOLLEGALA TOWN - 571440 CHAMARAJA NAGAR DISTRICT. ... PETITIONER (By SRI V.R. SARATHY ADVOCATE) AND:
1. THE RETURNING OFFICER ALSO, THE ASSISTANT COMMISSIONER KOLLEGALA SUB-DIVISION KOLLEGALA TALUK CHAMARAJ NAGAR DISTRICT-571 444.
2. THE THASILDAR KOLLEGALA TALUK KOLLEGALA CHAMARAJ NAGAR DISTRICT-571 444. 2 3.
4.
5. SMT.SHANTHI W/O CHENNAIAH AGED ABOUT28YEARS R/AT HUGYA VILLAGE HUGYA POST, KOLLEGALA TALUK CHAMARAJ NAGAR DISTRICT-571444. SMT. CHANDRA W/O RAMAR AGED ABOUT44YEARS R/AT VELLARIPORAI MARTALLI POST, RAMAPURA HOBLI KOLLEGALA TALUK CHAMARAJ NAGAR DISTRICT-571 444. SRI.JOHN DON BOSCO S/O.KANAKARATHINAM AGED ABOUT55YEARS R/AT MARTALLI, MARALLI POST KOLLEGALA TALUK CHAMARAJ NAGAR DISTRICT-571320. ... RESPONDENTS (BY SRI PRATHIMA HONNAPURA, AGA FOR R1 & R2; MS. MAITHREY KRISHNAN FOR SRI CLIFTON D’ ROZARIO ADV., FOR R5; R3 & R4 - SERVED AND UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER
PASSED BY THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, KOLLEGALA IN ELECTION PETITION NO.02/2017, DATED23D FEBRUARY, 2018 (ANNEXURE-A) ALLOWING THE INTERLOCUTORY APPLICATION FILED BY THE5H RESPONDENT SEEKING FOR CONDONATION OF DELAY FILED UNDER SEC.5 R/W SECTION14OF THE3LIMITATION ACT AND CONSEQUENTLY REJECT THE ELECTION PETITION NO.02/2017 THEREBY DECLARING THAT THE LIMITATION ACT HAS NO APPLICATION TO THE ELECTION PETITION AND ETC. DAY, THE COURT MADE THE FOLLOWING: THIS WRIT PETITION COMING ON FOR ORDER
S THIS ORDER
The petitioner has filed the present writ petition for a writ of certiorari to quash the impugned order passed by the learned Senior Civil Judge and Judicial Magistrate First Class, Kollegala dated 23.02.2018 made in Election Petition No.2/2017 allowing the application filed by the 5th respondent seeking for condonation of delay under Section 5 read with Section 14 of the Limitation Act and consequently, reject the Election Petition No.2/2017 thereby, declaring that the Limitation Act has no application to the Election Petition. 4 2. It is the case of the petitioner that on 04.12.2015, the State Government issued notification to hold elections to various Zilla Panchayat constituencies in the State of Karnataka. By Karnataka Act No.44 of 2015, the Karnataka Panchayat Raj Act, 1993 has been amended in which certain provisions have been amended and incorporated and it has been called as Karnataka Grama Swaraj and Panchayat Raj Act (for short ‘the Act’).
3. For the purpose of trial of Election Petition, the designated Court has been incorporated and the said designated Court has jurisdiction to adjudicate the Election Petition which came into force on 31.12.2015. As on that date, the District Court was designated Court to entertain the Election Petition arising out of Zilla Panchayat constituencies. 5 4. On 06.02.2016, in pursuance of calendar of events published by authorities, the petitioner contested under BCA-Women category by filing nomination. Similarly, 3rd respondent has filed her nomination to the said seat. On 20.02.2016, elections were held to the Maratalli Zilla Panchayat Constituency of Chamaraja Nagar Zilla Panchayat. On 23.02.2016, results have been declared by the Returning Officer that petitioner has been successfully elected as returned candidate of Maratalli Zilla Panchayat. As on that date, the State Government through notification has given effect to the amended Act.
5. On 21.03.2016, 5th respondent as a voter filed Election Petition No.3/2016 before the Senior Civil Judge, Kollegala challenging the candidature of the petitioner for the Maratalli Zilla Panchayat Constituency. On the basis of the Election Petition filed 6 by the 5th respondent, the trial Court issued notice to the petitioner. On receipt of the notice, the present petitioner filed an application under Section 17 (1) read with Section 16 of the Karnataka Panchayat Raj Act, 1993 on the ground that Election Petition filed was mis- joinder and non-joinder of provisions contemplated under Sections 15, 16, 17, 18, 19 and 20 of the Act and the petitioner has to file the Election Petition before the proper forum having jurisdiction. However, the Election Petition filed before the Senior Civil Judge was not maintainable under Section 15 of the Act and further as per Section 16(1) (a) (b) of the Act, the Election Petition shall invariably consist of concise statement of material facts on which the petitioner relied upon and also put forth the full particulars of any corrupt practice etc., sought for dismissal of the Election Petition. 7 6. The said application was resisted by the 5th respondent by filing objections.
7. Learned Senior Civil Judge considering the application and objection by the order dated 23.07.2016 allowed the application – I.A.No.2 filed by the present petitioner under Section 17(1) read with Section 16 of the Act and ultimately, Election Petition filed by the 5th respondent came to be dismissed holding that the Court has no jurisdiction to entertain the petition.
8. Aggrieved by the said order passed by the learned Senior Civil Judge, 5th respondent filed W.P.No.44388/2016 before this Court. This Court by an order dated 30.08.2017 dismissed the petition as infructuous in view of the subsequent amendment to law and reserved liberty to the 5th respondent to file an appropriate application before the Court below. 8 Thereafter, 5th respondent presented fresh Election Petition on 12.9.2017 before the designated Senior Civil Judge along with application under Section 5 read with Section 14 of the Limitation Act to condone the delay of 1 year, 5 months 19 days. The learned Senior Civil Judge after hearing both the parties by the impugned order dated 23.02.2018 has allowed the application and permitted the 5th respondent to prosecute the petition by condoning the delay of one year five months nineteen days or excluding the period from 24.3.2016 to 11.9.2017. Hence, present writ petition is filed.
9. I have heard the learned counsel for the parties to the lis.
10. Sri V.R. Sarathy, learned counsel for the petitioner vehemently contended that the impugned order passed by the learned Senior Civil Judge allowing the 9 application filed by the 5th respondent under Section 5 read with Section 14 of the Limitation Act and condoning the delay in filing the Election Petition and permitting the 5th respondent to prosecute the Election Petition is erroneous and contrary to the material on record. He further contended that the learned Senior Civil Judge erred in condoning the delay of one year, five months, nineteen days in filing the Election Petition mainly on the basis of the un-reported decision of this Court in the case of SMT.LALITHA v. RETURNING OFFICER made in W.P.No.*53087/2016 dated 26.10.2016. The said judgment is not applicable to the facts and circumstances of the present case. Therefore, he submits that learned Judge has committed an error in allowing the application filed under Section 5 read with Section 14 of the Limitation Act and the same is contrary to law. Corrected vide chamber order dated 22.09.2018 10 11. He further contended that as on the date of filing of the Election Petition by the 5th respondent, the designated Court was the District Court and the 5th respondent filed election petition before the Senior Civil Judge and Judicial Magistrate First class, Kollegala on 24.6.2016. Subsequently, on 23.07.2016, the Election Petition No.3/2016 filed by the 5th respondent came to be dismissed as not maintainable. Even though as on the date of the order, the appeal lies under Section 171(2) of the Act to the District Judge. Instead of filing the appeal, 5th respondent has filed writ petition No.44388/2016. On 30.08.2017, this Court dismissed the writ petition with liberty to the 5th respondent to file appropriate application before the trial Court. On these grounds, he sought to quash the impugned order by allowing the writ petition. 11 12. Per contra, Ms.Maitreyi Krishnan, learned counsel for respondent No.5 sought to justify the impugned order and contended that though the 5th respondent approached different forum by filing the Election Petition on 24.3.2016 and Election Petition No.3/2016 came to be dismissed on 23.7.2016, the writ petition came to be filed before this Court. In view of amendment of the provision of Section 2 (9-A) of the Act with effect from 12.7.2017, this Court dismissed the petition filed by the 5th respondent with liberty to file proper application before the trial Court. Therefore, the application filed by the 5th respondent under Section 5 read with Section 14 of the Limitation Act, which has been allowed is in accordance with law and the Election Petition was filed within time.
13. She further contended that this Court in the case of MR.NAGESH SAPALYA v. DEPUTY COMMISSIONER12AND OTHERS made in W.P.Nos.15284-15285/2010 dated 2.2.2011 allowed the writ petitions and directed the Returning Officer to accept the nomination of the petitioners therein and permitted him to contest in Grama Panchayath Election. Subsequently, the Election Petition filed came to be rejected holding that the provisions of Section 5 read with Section 14 of the Limitation Act would not be applicable and the same was set aside by this Court in W.P.No.44112/2011 on 7.12.2012. Hence, the trial Court is justified in condoning the delay by the impugned order. Accordingly, she sought to dismiss the present writ petition.
14. Learned AGA appearing for respondent Nos.1 and 2 submits that the trial Court proceeded to allow the application on the basis of the un-reported decision of this Court in the case of SMT.LALITHA v. RETURNING13OFFICER made in W.P.No.*53087/2016 dated 26.10.2016. It was a case where the Election Petition was pending before the designated Court and subsequently, the amendment came into force in view of the provision to Section 18 of the Act, the Election Petition was transferred to the jurisdictional Court. Admittedly, in the present case no appeal was filed before the concerned District Judge. The trial Court was not justified in condoning the delay applying the provisions under Section 5 read with Section14 of the Limitation Act to the Election Petition.
15. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully. Corrected vide chamber order dated 22.09.2018 14 16. It is an undisputed fact that elections to the Maratalli Zilla Panchayath Constituency of Chamaraja Nagar Zilla Panchayat was conducted on 20.02.2016 and the present petitioner was declared as a returned candidate of Marathalli Zilla Panchayath Constituency on 23.2.2016. It is also not in dispute that as on the date of presentation of the election petition by the 5th respondent, District Court was designated to entertain the Election Petition. Whereas, the 5th respondent filed Election Petition before the Senior Civil Judge, Kollegala, which was not designated Court as on that date. Therefore, the present petitioner filed application - I.A.No.2 under Section 17(1) read with Section 16 of the Act on the ground that the Election Petition filed by the 5th respondent was not maintainable under the provisions contemplated under Sections 15, 16, 17, 18 and 20 of the Act. So also, respondent No.4 filed 15 I.A.No.1 under Section 17(1) read with Section 16 of the Act with regard to maintainability. The trial Court considering the rival contentions urged by the parties, by an order dated 23.7.2016 allowed the application filed by the petitioner as well as the 4th respondent and held that the Election Petition filed by 5th respondent before the learned Senior Civil Judge was dismissed as not maintainable on the ground that the Senior Civil Judge has no jurisdiction to entertain the petition.
17. As on the date of rejection of the Election Petition by the learned Civil Judge as not maintainable, an appeal can be filed under Section 171(2) of the Act, which reads as under: “2) Any person aggrieved by any decision or order of the (designated Court) under this section may, within thirty days from the date of such decision or order appeal to the District 16 Judge and the decision of the District Judge on such appeal shall be final.” 18. Unfortunately, 5th respondent instead of filing an appeal as contemplated had filed Writ Petition No.44388/2016 before this Court on 17.8.2016 challenging the dismissal of the Election Petition.
19. In the meanwhile, Government of Karnataka has amended the provisions of the Karnataka Gram Swaraj and Panchayat Raj Act by Act No.37 of 2017 w.e.f. 12.07.2017 and substituted Senior Civil Judge Court as designated Court for the trial of election disputes relating to Gram Panchayaths, Taluk Panchayats and Zilla Panchayats which reads as under: “Amendment of section 2.- In section 2 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (Karnataka Act 14 of 1993) (hereinafter referred to as the 17 principal Act), for clause (9A), the following shall be substituted, namely:- '(9A) “Designated Court” means the jurisdictional Court of Senior Civil Judge designated for the trial of election disputes related to Gram Panchayats, Taluk Panchayats and Zilla Panchayats, in whose territorial jurisdiction respectively, the panchayat area or a major portion of the panchayat area is situated'.” In view of the aforesaid amendment, this Court by the order dated 30.08.2017 has dismissed the writ petition filed by the 5th respondent as infructuous with liberty to file an appropriate application before the Court below. A careful reading of the said order passed by this Court reflects that this Court has not excluded the limitation to file Election Petition, though wrongly filed by the 5th respondent on 24.03.2016 without 18 availing the appeal provisions as contemplated under Sub-Section (2) of Section 171 of the Karnataka Gram Swaraj and Panchayat Raj Act.
20. This Court only disposed of the petition as infructuous reserving liberty to the petitioner therein to file an appropriate application before the trial Court, which does not mean exclusion of the time spent under the provisions of Section 5 read with Section 14 of the Limitation Act.
21. The contention of the learned counsel for the 5th respondent that, in the case of MR. NAGESH SAPALYA v. DEPUTY COMMISSIONER AND OTHERS made in W.P. Nos.15284-15285/2010 dated *02.02.2011 allowed the petition permitting the petitioner therein to approach the designated Court after excluding the limitation, cannot be accepted at all. In the said case Corrected vide chamber order dated 22.09.2018 19 what was challenged by the petitioner therein was the rejection of his nomination by the returning officer of the concerned Gram Panchayat. Therefore, a direction was sought before this Court to accept the nomination papers filed by the petitioner and permit him to contest the panchayat election and subsequent writ petition filed by the same petitioner in W.P. No.44112/2011, where the petitioner assailed dismissal of the application filed in I.A. No.2 filed under Section 5 read with Section 14 of the Limitation Act, in Election Petition. This Court while allowing the Writ Petition has held that, if the dates are taken into consideration, the relevant date would be 07.03.2011 and when a copy of the Writ Petition was made available to the petitioner, and the Election Petition was filed on 22.07.2011 within the time as contemplated in the Act. The application filed for condonation of delay was only superfluous and 20 had been filed by the petitioner by way of abundant caution. The facts of the said case and the facts of this case are entirely different and has no application to the facts of the present case.
22. In the order made in W.P. No.44112/2011 dated 07.12.2012, in fact, this Court has held that: ‘Hence, in my opinion, the order passed by the Court below insofar as holding that the Limitation Act is not applicable though is justified, the rejection of main petition as a consequence of rejecting IA-II is not justified’. Therefore, this Court also held that the provisions of Section 5 read with Section14 of the Limitation Act is not applicable to the Election Petitions.
23. The trial Court proceeded to allow the application filed under Section 5 read with Section 14 of the 21 Limitation Act to condone the delay of 1 year 5 months 19 days excluding the period from 24.03.2016 to 12.09.2017. Virtually, the trial Court set aside the order passed by the learned Civil Judge dismissing the Election Petition as not maintainable on 23.07.2016, which is impermissible in law. It was not the case of the 5th respondent before the trial Court that, this Court while dismissing the writ petition No.44388/2016 as infructuous on 30.08.2017 has been set aside the order passed by the learned Civil Judge (Jr.Dn.) in dismissing the Election Petition on 23.07.2016 as not maintainable. The trial Court proceeded to condone the delay by wrongly applying the decision of this Court in the case of Smt. Lalitha V/s. Returning Officer, passed in W.P. No.53087/2016 on 26.10.2016, wherein, as on the date of the application filed, the Election Petition was pending. The facts in the instant 22 case and the facts in the cited case are different, therefore, it is not applicable to the facts and circumstances of the present case. The Court below failed to notice that the provisions of Limitation Act is not applicable to the Election Petition.
24. The Hon’ble Supreme Court while considering the provisions of limitation, under Section of 81(1) of the Representation of the people Act, 1951, in respect of Election Petition in the case of Lachhman Das Arora v. Ganeshi Lal, (1999) 8 SCC532 at Para Nos.6 and 7 has held as under: “6. Section 81(1) of the Act deals with the presentation of election petitions and provides:
81. Presentation of petitions.- (1) An election petition calling in question any election may be presented on one or more of the grounds specified in sub- 23 section (1) of Section 100 and Section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates.
7. On its plain reading, Section 81(1) lays down that an election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of Section 100 and Section 101 of the Act to the High Court by any candidate at such election or by an elector within forty-five days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned Candidate at the election and the dates of their election are different, the later of 24 those two dates. The Act is a special code providing a period of limitation for filing of an election petition. No period for filing of an election petition is prescribed under the Indian Limitation Act. The Act insofar as it relates to presentation and trial of election disputes is a complete code and a special law. The scheme of the special law shows that the provisions of Sections 4 to 24 of the Indian Limitation Act do not apply. If an election petition is not filed within the prescribed period of forty-five days, Section 86(1) of the Act, which provides that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117, is straightaway attracted.” 25. Sub-Section (1) of Section 15 of Karnataka Gram Swaraj and Panchayat Raj Act, 1993, reads as under:
25. “ (1) No election to fill a seat or seats in a Grama Panchayat shall be called in question except by an election petition presented on one or more of the grounds specified in sub-Section (1) of Section 19 and Section 20 to the [the Designated Court]. within whose territorial jurisdiction the Panchayat area concerned or the major portion of the Panchayat area concerned is situated by any candidate at such election or by any voter qualified to vote at such election together with a deposit of five hundred rupees as security for costs, within thirty days from, but not earlier than, the date of declaration of the result of the election of the returned candidate at the election, and if the date or if there are more than one returned candidate at the election, and if the dates of declaration of the results of the their election are different, the last of those dates.” 26 26. In the present case, the 5th respondent is a voter, filed an Election Petition on 24.03.2018, within 30 days from the date result of election was announced, but, before a wrong forum i.e. before the Civil Judge, which was not the designated Court, as on the date of filing of the petition.
27. The provisions of Sections 15(1) and (2) of Representation of the People Act, reads as under: “15. (1) A general election shall be held for the purpose of constituting a new Legislative Assembly on the expiration of the duration of the existing Assembly or on its dissolution. (2) For the said purpose, 1[the Governor or Administrator, as the case may be]., 2[***]. shall by one or more notifications published in the Official Gazette of the 27 State on such date or dates as may be recommended by the Election Commission, call upon all Assembly constituencies in the State to elect members in accordance with the provisions of this Act and of the rules and orders made thereunder: Provided that where a general election is held otherwise than on the dissolution of the existing Legislative Assembly, no such notification shall be issued at any time earlier than six months prior to the date on which the duration of that Assembly would expire under the provisions of clause (1) of article 172 3[***]. 4[or under the provisions of section 5 of the Government of Union Territories Act, 1963 (20 of 1963), as the case may be.].” 28. Section 81(1) in the Representation of the People Act, 1951 reads as under:
28. “(1) An election petition calling in question any election may be presented on one or more of the grounds specified in 1[sub-section (1)]. of section 100 and section 101 to the [High Court]. by any candidate at such election or any elector [within forty-five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates]..” 29. Though, the provisions of Section 15 of the Karnataka Gram Swaraj and Panchayat Raj Act and Section 18(1) of the Representation of the People Act are synonymous, the limitation prescribed under the Karnataka Gram Swaraj and Panchayat Raj Act, is 30 days from the date of declaration of result of the election, and 45 days under the Representation of the People Act, to file an Election Petition. Therefore, under 29 both the said Acts, the provisions of Section 5 read with Section 14 of the Limitation Act to file an Election Petition is not applicable as held by the Hon’ble Supreme Court stated supra.
30. The Hon’ble Supreme Court in the case of G.V. SREERAM REDDY AND ANOTHER Versus RETURNING OFFICER AND OTHERS reported in (2009) 8 Supreme Court Cases 736 while considering the provisions of Sections 81 to 87 of the Representatives of Peoples’ Act, at Para Nos. 15 and 16 has held as under: “15) This Court, on previous occasions, had the chance to interpret Section 81(1). It must be noted that the Representation of the People Act, 1951 is a special statute, and a self- contained regime. In K. Venkateswara Rao v. Bekkam Narasimha Reddi a question arose whether 45 days’ period provided under Section 81(1) could be 30 condoned through the application of the Limitation Act?. After examining the relevant provisions of the Act, this Court held: (AIR p.877, para
14) "14…..the Limitation Act cannot apply to proceedings like an election petition inasmuch as the Representation of the People Act is a complete and self-contained code which does not admit of the introduction of the principles or the provisions of law contained in the Indian Limitation Act."
This has been reiterated in Hukumdev Narain Yadv v. Lalit Narain Mishra wherein this Court has again read the requirements under Section 81 strictly, while stating that the Act is a self- contained special statute.
16) While interpreting a special statute, which is a self - contained code, the 31 Court must consider the intention of the Legislature. The reason for this fidelity towards the Legislative intent is that the statute has been enacted with a specific purpose which must be measured from the wording of the statute strictly construed.” 31. Admittedly, in the present case, it is not the case of 5th respondent, who has filed an Election Petition before a wrong forum, that, the provisions applicable to file an Election Petition in the absence of any declaration in the case of ‘Mr. NAGESH SAPALYA’ by this Court. As stated supra, the contention that the Election Petition is maintainable before the designated Civil Judge, which was filed on 12.09.2017, applying the provisions of Section 5 read with Section 14 of Limitation Act, to condone the delay of 1 year 5 months 32 19 days in filing the Election Petition, cannot be accepted.
32. Under the provisions of Section 15 of the Karnataka Gram Swaraj and Panchayat Raj Act, Election Petition should be filed within 30 days from the date of declaration of results of the election of the returning candidate or if the date of declaration of results of the election is differed, the last of those both dates. As per Sub Section (6) Section 17 of the Act, every Election Petition shall be tried expeditiously and endeavor shall be made to conclude the trial within six months from the date on which the Election Petition is presented before the designated Court for trial. The legislature thought it fit that there must be prescribed limitation to file an Election Petition and the Election Petition should be concluded within six months from the date of its filing. Even on that ground also the fresh 33 petition filed by the 5th respondent before the Court below cannot be sustained.
33. In view of the aforesaid reasons, the writ petition is allowed. The impugned order dated 23.02.2018 passed on I.A. No.1 in EP No.2/2017 on the file of the learned Senior Civil Judge (JMFC) at Kollegala, is hereby quashed.
34. The Election Petition filed by the 5th respondent is dismissed as barred by limitation. Ordered accordingly. Sd/- JUDGE Vmb/Sbs*