Karnataka High Court
Mallikarjunagouda vs Principal Munsiff on 12 July, 1995
Equivalent citations: ILR1995KAR2595, 1995(4)KARLJ510, 1996 A I H C 72
ORDER Rajendra Babu, J.
1. This Petition is directed against an order made by the Munsiff at Hubli in an Election Petition arising under Section 15 of the Karnataka Panchayat Raj Act, 1993 in relation to an election to the Gramapanchayat. The petitioner was the Returned candidate and his election came to be challenged by respondent No. 2 herein. Various grounds had been taken to challenge the election. The results of the elections were announced on 18.12.1993 and the Election Petition was filed on 10.1.1994. A Memo was filed seeking withdrawal of the Election Petition on 22.1.1994 and orders are yet to be passed by the learned Munsiff. In the meanwhile respondent No. 3 filed an application under Order 1 Rule 10 of the Code of Civil Procedure to transpose him as the petitioner.
2. The learned Counsel for the petitioner contended that a perusal of the provisions of the Karnataka Panchayat Raj Act in so far as Sections 15, 16, 17, 18 and 19 are concerned they are akin to the provisions available in the Representation of the People Act 1951. However, there is no provision providing for withdrawal of the Petitions under the Act. Therefore, in view of Section 17(7) it was permissible to file a Memo as provided under Order 23 as provided under C.P.C. for withdrawal of the Petition and therefore the question of following the procedure prescribed under Sections 109 or 110 of the Representation of People Act would not arise and further when the provisions of the Act prescribes a time limit within which an Election Petition can be filed and imposes very severe restrictions and also conditions thereto as to the manner of filing of the Petition, unless those conditions are complied with an Election Petition cannot be maintained and the provisions of Order 1 Rule 10 has no place in such cases and therefore the learned Munsiff has completedly misdirected himself in making the order impugned herein.
3. Sri Jayakumar S. Patil, learned Counsel for the contesting respondent who had been allowed to come on record by transposition as petitioner submitted that there is no bar under the provisions of the Act to apply Order 1 Rule 10 of the Code of Civil Procedure and in any event it is certainly permissible to invoke the provisions of Order 1 Rule 8 sub Rule (5) of the Code of Civil procedure and hence the order made by the learned Munsiff need not be interfered with. The learned Government Pleader submitted that an Election Petition affects the entire constitutency and therefore affects public interest and hence provisions of Order 1 Rule 8 would be attracted to such a case although no specific provision has been made under the Act as has been made under the Representation of the People Act under Sections 109 and 110(3)(c). It is further urged that it is certainly open to the Court to invoke the provisions of Order 1 Rule 8(4) & (5) and therefore could appropriately safeguard the interest of the constituency by making an appropriate order at the time of the disposal of the memo regarding withdrawal of the case.
4. The law as to the nature of elections and conduct of Election Petitions has been very succinctly stated by the Supreme Court in JYOTI BASU AND ORS. v. DEBI GHOSAL AND ORS . It is stated therein that it is not a common law right or a fundamental right. It is only a statutory right. A right to get elected and a right to dispute the election is controlled by the statute. Outside the statute there is no right to elect, no right to be elected and no right to dispute an election. Therefore, we have to examine the scheme of the Act in order to state whether the provisions of Order 1 Rule 10 in this case could have been invoked or not.
5. An Election Petition could be filed under Section 15 of the Act within the period prescribed and subject to the conditions set forth therein. Further such an Election Petition will have to comply with Section 15 as well. If the conditions are not complied with, Election Petition is liable to be dismissed under Section 17 of the Act without notice to the other side. Any candidate who is not a party to the proceedings can become a party to the proceedings as provided under Section 17(3) of the Act if he complies with the conditions thereto. Provisions regarding candidates being impleaded are also provided thereto. When the Act provides as to who could be the parties before Court under Sections 15, 16 and 17, question of invoking a general provision as provided under Order 1 Rule 10 would not arise at all, because as to who could be parties before Court is regulated by the provisions aforesaid. If the parties cannot be impleaded except as provided under the Act Order 1 Rule 10 cannot be invoked which is not consistent with the scheme of the Act.
6. In AMIRLAL v. Hunna Mal , the Supreme Court held that Order 1 Rule 10 can be invoked subject to law of limitation. In MOHAN v. SURENDRA , it was made clear that the provisions of Order 1 Rule 10 cannot be held to avoid the consequences of non-joinder for which a special provision is made in the Representation of People Act.
7. A person who could have filed an Election Petition himself if he has not filed such a Petition within the period of limitation and subject to the conditions prescribed under Section 15 cannot by an indirect method transpose himself as petitioner. The scheme of the provisions therefore to that extent are inconsistent with Order 1 Rule 10 C.P.C. and it cannot be allowed to be invoked and that is exactly what has been done by the learned Munsiff in this case. Hence, the order impugned herein cannot be sustained.
8. At the same time I must make the position in law clear. The basic difference between a suit and an Election Petition is noticed in SAMARNATH v. KEDARNATH , and it has been held that in the former the matter is confined to parties while the latter raises a dispute invoking the entire constituency. The provisions of C.P.C. will apply to trial of an Election Petition except to the extent its provisions may be found to be inconsistent with the provisions of the Act. Since no provision is made in the Act as to withdrawal of Election Petitions Order 23 Rule 1 may be invoked. In such a circumstance the trial Court can examine whether Order 23 Rule 1A can be applied and permission granted to respondent No. 3 to transpose himself as petitioner. The Court may also examine the applicability of the principles underlying Order 1 Rule 8(4) before allowing withdrawal of the Election Petition considering the nature of Election Petition as affecting the entire constituency. Subject to this observation this Petition shall stand allowed and the order impugned herein shall stand quashed. Rule made absolute accordingly.