Research › Search › Judgment

Karnataka High Court · body

2015 DIGILAW 1106 (KAR)

Gowramma v. State of Karnataka

2015-09-21

R.S.CHAUHAN

body2015
ORDER : R.S. Chauhan, J. 1. In a election petition challenging the election of a member of Gram Panchayath under Section 15 of the Karnataka Panchayath Raj Act, 1993 (The Act', for short), whether the Civil Judge (Jr. Div) is a persona designata or a civil court? Whether the Civil Judge has the power under Order 39, Rule 1 and 2 of the Civil Procedure Code ('the Code' for short), or not while dealing with an election petition? There are the two moot questions before this court. The said issues have arisen in the following factual matrix: 2. The election for the Gram Panchayath, namely Vatadahosahalli Gram Panchayath, was held on 2-6-2015. Both the petitioner, Smt. Gowramma, and the respondent No. 5, Smt. Nagalakshmamma had contested the election for the seat of member of the said Gram Panchayath. While the petitioner was elected as a member, Smt. Nagalakshamamma lost the election. Therefore, she filed an election petition before the Civil Judge (Jr. Div), and JMFC, Gudibanda challenging the petitioner's election as well as the election of one, Sri. Mallappa as members of the said Gram Panchayath. The said election petition was filed under Sections 15 and 19 of the Act. In her petition, Smt. Nagalakshamamma alleged that the Returning Officer had not signed nearly 100 ballot papers before entrusting it to the voters who had come for voting; one of the nine ballot papers, that have been approved to be received under postal ballot, the same has been illegally allowed to be polled in so far as the same relates to one K.N. Narasimhamurthy. For, his ballot paper has been received by misrepresentation and by forging his signature and the same has also been polled with a forged signature. It was, further, alleged that on the counting day, on 5-6-2015, the Returning Officer submitted the final counting report without giving the contestants or their agents a chance to point out the irregularities, or the illegalities in the holding of the election, and without giving them an opportunity to seek recounting of the valid votes. It was also alleged that some of the voters have exercised their voting rights in three different constituencies in utter violation of the code of conduct of the elections. Therefore, these irregularities and illegalities gave an unfair advantage to Smt. Gowramma to nominate a presidential candidate for the Gram Panchayath, which is about to commence. It was also alleged that some of the voters have exercised their voting rights in three different constituencies in utter violation of the code of conduct of the elections. Therefore, these irregularities and illegalities gave an unfair advantage to Smt. Gowramma to nominate a presidential candidate for the Gram Panchayath, which is about to commence. Thus, Smt. Nagalakshmamma sought the relief that the election be declared as illegal, the election result dated 5-6-2015 should be set aside, and fresh election be convened. Along with the election petition, Smt. Nagalakshmamma also filed an application for temporary injunction under Or. 39, Rules 1 and 2 of the Code for restraining Smt. Gowramma from continuing to function as a member of the Gram Panchayath, including restraining her from nominating any member for the post of President of the Gram Panchayath. 3. By order dated 7-7-2015, the learned Civil Judge allowed the application for temporary injunction under Or. 39, Rules 1 and 2 of the Code. Hence, this petition before this Court. 4. Mr. Sadasiva Reddy, the learned Senior Counsel for the petitioner, has relied upon three judgments of this court, namely Sri. S. Nagangound v. Y. Basi Reddy [1969 ILR Mys. 734], Mallesheppa v. Revansiddappa and Ors. [1979 (2) Kar. L. J. 171] and Bhairgouda s/o Balgouda Patil v. Sudhir Nagesh Gadde (Writ Petition No. 82245/2013, decided on 31-7-2014, by this Court), in order to support his plea that the Civil Judge (Jr. Div) is not a Civil Court, but is a persona designate; as such, he does not enjoy all the powers of the Civil Court. Therefore, he is not bestowed with the power under Or. 39, Rules 1 and 2 of the Code. Thus, the learned Civil Judge could not have passed the impugned order dated 7-7-2015 restraining the petitioner from discharging her duties as a member of the Gram Panchayath. Secondly, since the election of the President of the Gram Panchayath was shortly due, the election process was still continuing. Under Section 291 of the Act the Civil Court is prohibited from interfering with the process of the election. Hence, the impugned order violates the bar contained in Section 291 of the Act. Thus, the impugned order is legally unsustainable. 5. Per contra, Mr. Under Section 291 of the Act the Civil Court is prohibited from interfering with the process of the election. Hence, the impugned order violates the bar contained in Section 291 of the Act. Thus, the impugned order is legally unsustainable. 5. Per contra, Mr. Shyam Koundinya, the learned counsel for Smt. Nagalakshmamma, respondent No. 5, has raised the following pleas before this court: firstly, under Section 15 of the Act, the Civil Court is not a persona designata, but is a Civil Court. In order to support this plea, the learned counsel has relied upon the case of Laxmappa v. Election Officer Ranebennur and Others. [(1995) 1 Kant L. J. 289]. Secondly, according to Section 17 (7) of the Act, "every election petition shall be tried by the Civil Judge (Junior Division), as nearly as may be in accordance with the procedure applicable under the Civil Procedure Code, 1908, to the trial of suits." Thus, all the powers contained in the Civil Procedure Code have been bestowed upon the Civil Judge (Jr. Div.). In order to buttress this plea, the learned counsel has relied upon the cases of Sathi Vijay Kumar v. Tota Singh & Ors., [2007 AIR (SCW) 304], and Ram Sukh v. Dinesh Aggarwal, [ (2009) 10 SCC 541 ]. Hence, the learned Civil Judge has ample powers under Or. 39, Rules 1 and 2 of the Code to pass a temporary injunction order against the petition. Therefore the impugned order is legally valid. Thirdly, Section 291 of the Act is inapplicable as the respondent No. 5 had challenged the petitioner's election after the election was over. Since Section 291 of the Act prevents the Court from passing an injunction order during the course of election, as the Gram Panchayath election was over with the election of the members, the bar contained in Section 291 of the Act is inapplicable. Thus, the learned Civil Judge was justified in exercising his power under Or. 39, Rules 1 and 2 of the Code. Therefore, the learned counsel has supported the impugned order. 6. In rejoinder, Mr. Thus, the learned Civil Judge was justified in exercising his power under Or. 39, Rules 1 and 2 of the Code. Therefore, the learned counsel has supported the impugned order. 6. In rejoinder, Mr. Sadashiva Reddy, the learned Senior Counsel, has submitted that Section 17 (7) of the Act uses the words "every election petition shall be tried by the Civil Judge (Junior Division), as nearly as may be in accordance with the procedure applicable under the Civil Procedure Code..." Therefore, the election petition has to be 'tried' "as nearly as may be". These words clearly indicate that the entire Code is not applicable to a trial of an election petition. Secondly, the Civil Judge (Jr. Div) is required to follow the 'procedure' for the trial of a suit. But an application under Or. 39, Rules 1 and 2 of the Code is not part of 'procedure' for the trail of a suit. It is a supplemental proceeding to the main suit. Thirdly, the power under Order 39, Rules 1 and 2 of the Code has not been specifically bestowed on the Civil Judge (Jr. Div). Since the Civil Judge (Jr. Div) is a persona designata, a special power has to be bestowed upon him. Fourthly, even if for the sake of arguments it is held that the power under Or. 39, Rules 1 and 2 of the Code does exists with the Civil Judge, even then the learned Civil Judge should have realized that the balance of convenience is not on the side of the respondent No. 5, but is on the side of the petitioner. Thus, the power under Or. 39, Rules 1 and 2 of the Code has been exercised illegally. Fifthly, the cases of Sathi Vijay Kumar (supra) and Ram Sukh (supra) are distinguishable on factual basis as both the cases dealt with the 'procedural' aspects of the Code. The said cases did not deal with supplemental proceedings. Thus, the case law cited by the respondent No. 5 does not support her case. Fifthly, the cases of Sathi Vijay Kumar (supra) and Ram Sukh (supra) are distinguishable on factual basis as both the cases dealt with the 'procedural' aspects of the Code. The said cases did not deal with supplemental proceedings. Thus, the case law cited by the respondent No. 5 does not support her case. Sixthly, Section 291 of the Act begins with a non-obstante clause and ousts the operation of "any law for the time being in force." Moreover, it prohibits the court from passing any permanent or temporary injunction or from making any interim order restraining any proceeding which is being or about to be taken under this Act for the conduct of any election under the Act. Since the election of the President was about to take place-an election under this Act-- the learned Civil Judge could not have restrained the petitioner from taking part in the election process and could not have restrained her from nominating a member for the post of President of the Gram Panchayath. Thus, the impugned order is clearly in violation of the bar contained in Section 291 of the Act. Seventhly, in an election petition the court should not interfere with the functioning of a member as it deprives his/her constituency a voice in the affairs of the Panchayath. The learned Civil Judge has overlooked this essential factor while passing the impugned order. Hence, the impugned order deserves to be set aside. 7. Heard the learned counsel for the parties, perused the impugned order, and considered the case law cited at the Bar. 8. From Mallesheppa (supra) to Vinaykumar Soorinje and Anr. v. The Returning Officer/Tehsildar and Ors., [2005 (6) Kar L. J. 484] to Bhairgouda (supra), this court has consistently held that "the Munsiff functioning under the Act is not a Court but a person designate and as such, he does not enjoy all the powers of the Civil Court. " It is true that in the case of Laxmappa (supra) this Court has taken a different view and has held that a Civil Judge is not a persona designata, but is a Civil Court. However, the above mentioned cases were not brought to the notice of the court in the case of Laxmappa. Therefore, Laxmappa (supra) is not a binding authority. Moreover, the Civil Judge (Jr. Div) has not been granted all the powers of the civil court. However, the above mentioned cases were not brought to the notice of the court in the case of Laxmappa. Therefore, Laxmappa (supra) is not a binding authority. Moreover, the Civil Judge (Jr. Div) has not been granted all the powers of the civil court. Thus, the court is a designated court under Section 15 of the Act. But it cannot be said that it is a Civil Court having all the powers under the Code. 9. In order to understand the powers bestowed upon the Civil Judge (Jr. Div) one would have to consider the scope of Section 17 of the Act. The said section is as under: "Section 17 : Trial of election petition.--(1) The Civil Judge (Junior Division) shall dismiss an election petition which does not comply with the provisions of section 15. Explanation.--An order of the Civil Judge (Junior Division) dismissing an election petition under this sub-section shall be deemed to be an order made under clause (a) of sub-section (1) of section 18. (2) Where more election petitions than one are presented to the Civil Judge (Junior Division) in respect of the same election, the Civil Judge (Junior Division) may, try them separately or in one or more groups. (3) Any candidate not already a respondent shall, upon application made by him to the Civil Judge (Junior Division) within fourteen days from the date of commencement of the trail and subject to any order as to security for costs which may be made by the Civil Judge (Junior Division), be entitled to be joined as a respondent. Explanation.--For the purpose of this section, a trial of petition shall be deemed to commence on the date fixed for the respondents to appear before the Civil Judge (Junior Division) and answer the claim or claims made in the petition. (4) The Civil Judge (Junior Division), may upon such terms as to costs and otherwise as he may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in his opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition, which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition. (5) The trial of an election petition shall, so far as is practicable consistently with the interest of justice in respect of the trail, be continued from day-to-day until its conclusion, unless the Civil Judge (Junior Division) finds the adjournment of trial beyond the following day to be necessary for reasons to be recorded. (6) Every election petition shall be tried as expeditiously as possible and endeavor shall be made to conclude the trail within six months from the date on which the election petition is presented to the Civil Judge (Junior Division) for trial. (7) Subject to the provisions of this Act every election petition shall be tried by the Civil Judge (Junior Division), as nearly as may be in accordance with the procedure applicable under the Civil Procedure Code, 1908 (Central Act 5 of 1908), to the trial of suits: Provided that the Civil Judge (Junior Division) shall have discretion to refuse for reasons to be recorded in writing, to examine any witness or witnesses if he is of the opinion that their evidence is not material for the decision of petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings. (8) The provisions of the Indian Evidence Act, 1872 shall subject to the provisions of this Act be deemed to apply in all respects to the trail of the election petition. (9) Notwithstanding anything in any enactment to the contrary, no document shall be inadmissible in evidence at the trial of the election petition on the ground that it is not duly stamped or registered." 10. A bare perusal of the said provision clearly reveals that it deals with "the trial of election petition". The provision defines some of the procedures and all the powers vested in the Court. But while defining the procedures, the provision differs from the Code. The Explanation appended to sub-section (3) clearly states that the trial of the petition shall be deemed to commence on the date fixed for the respondents to appear before the court and answer the claim or claims made in the petition. Since a trial of a civil suit is said to begin not when the respondent appears, but when the issues are framed, this provision clearly deviates from the normal principle applicable to a civil suit. 11. Since a trial of a civil suit is said to begin not when the respondent appears, but when the issues are framed, this provision clearly deviates from the normal principle applicable to a civil suit. 11. Most importantly, sub-section 7 of Section 17 clearly stipulates that the election petition shall be "tried... as nearly as may be in accordance with the procedure applicable under the Civil Procedure Code, to the trial of suits." The use of the words, "as nearly as may be" clearly indicates that the entire Civil Procedure Code is not to be applied in the case of trial of an election petition. Moreover, what is to be applied is "the procedure applicable under Civil Procedure Code to the trial of a suit." It is trite to state that "the procedure for the trial of a suit" is contained in Sections 9 to 33 of the Code and from Or. 1 to Or. 20 of the Code. But besides containing, "the procedure for the trial of a suit" the Code also contains other provisions such as Incidental Proceedings contained in Part III, and Supplemental Proceedings contained in Part VI of the Code. In fact, Section 94, contained in Part VI of the Code, bestows the power of granting temporary injunction upon the Civil Court. The said power is further elaborated in Or. 39, Rules 1 and 2 of the Code. Therefore, the power to grant a temporary injunction is part of supplemental proceedings. It does not form part of "procedure for trial of a suit. Hence, the power to grant a temporary injunction is not vested in the Civil Judge (Jr. Div.) while he tries an election petition under Section 15 read with Section 17 of the Act. 12. Of course, Mr. Shyam Kondinya, the learned Counsel for the respondent No. 5, has relied upon the cases of Sathi Vijay Kumar (supra) and Ram Sukh (supra) in order to support his contention that the provisions of the Code are applicable to an election petition. However, the issue in the case of Sathi Vijay Kumar (supra) was whether the power under Or. 6, Rule 16 of the Code to strike out pleadings is vested or not in the Civil Judge trying an election petition? Obviously, the said power deals with "a procedure" for trial of a civil suit. However, the issue in the case of Sathi Vijay Kumar (supra) was whether the power under Or. 6, Rule 16 of the Code to strike out pleadings is vested or not in the Civil Judge trying an election petition? Obviously, the said power deals with "a procedure" for trial of a civil suit. It is in this background that the Hon'ble Supreme Court opined that although the Representation of People Act, 1951 does not make a provision for striking out of pleadings, but as general principles as to pleadings in civil suit are applicable to election petition, thus, the court would have the power under Or. 6, Rule 16 of the Code to strike out the pleadings. Obviously, the issue was with regard to "procedure for the trial of a suit: However, as discussed above the power to grant injunction is supplemental and not part of "the procedure for trial of suit". Thus, the case of Sathi Vijay Kumar (supra) does not support the case of respondent No. 5. 13. Similarly, in the case of Ram Sukh (supra) the issue was whether the Civil Court trying an election petition has the powers under Or. 6, Rule 16 and under Or. 7, Rule 11 of the Code. Since both these Orders deal with "the procedural aspects for trying a civil suit", the Apex Court was of the opinion that the Civil Court does have the jurisdiction to exercise its powers under both these Orders. However, even this case deals with a "procedure for trial of a suit. Hence, even this case does not buttress the case of the respondent No. 5. 14. Furthermore, before prohibiting an elected member from exercising the powers and duties vested in the member, the learned Civil Judge should have also considered the consequences of grant of temporary injunction: once a member is denied the right to exercise his powers, the constituency represented by him/her loses its voice in the affairs of the Gram Panchayath. In the instant case by denying the petitioner the right to vote in the up-coming election for the Presidency of the Gram Panchayath, the learned Civil Judge has denied her constituency the right to choose the President of the Gram Panchayath. In the instant case by denying the petitioner the right to vote in the up-coming election for the Presidency of the Gram Panchayath, the learned Civil Judge has denied her constituency the right to choose the President of the Gram Panchayath. It is for this reason that in catena of cases the Hon'ble Supreme Court has held that a duly elected member of an elected body should not be denied his right to exercise his powers and to carry out his duties as an elected member. In democracy, he/she is the voice of the people. He/she represents the interests of the people. Thus, the Courts must be weary of granting temporary injunction in an election petition. 15. However, the contention with regard to the applicability of Section 291 of the Act, as raised by the learned Senior Counsel is bit too far. Section 291 of the Act is as under: "291. Injunctions not to be granted in election proceedings.--Notwithstanding anything contained in any law for the time being in force, no Court shall grant any permanent or temporary injunction or make any interim order restraining any proceeding which is being or about to be taken under this Act for the conduct of any election under this Act." 16. Since the provision begins with a non-obstante clause, it clearly ousts the applicability of all the laws in force for the time being. This would also include the power of the Civil Court under Section 94 and under Or. 39, Rules 1 and 2 of the Code. However, the provision prohibits the court from granting any injunction, temporary or permanent, or an interim order "restraining any proceeding...for the conduct of any election under the Act" However, in the present case the learned Civil Judge has not restrained any proceeding for the conduct of the election of the President under the Act. The learned Civil Judge has merely restrained the petitioner from participating in the election of the President of the Gram Panchayath. Therefore, the contention raised by the learned Senior Counsel that the learned Civil Judge has violated the bar contained in Section 291 of the Act is unacceptable. 17. However, as the learned Civil Judge did not have the power to grant the temporary injunction, the impugned order is ultra vires his jurisdiction. The impugned order is, thus, void ab initio. Therefore, the impugned order dated 7-7-2015 is set aside. 17. However, as the learned Civil Judge did not have the power to grant the temporary injunction, the impugned order is ultra vires his jurisdiction. The impugned order is, thus, void ab initio. Therefore, the impugned order dated 7-7-2015 is set aside. The writ petition is, hereby, allowed. No order as to cost.