Kerala High Court
Adv.M.Philip Koshy vs Prof.Saji Chacko on 15 June, 2010
Author: S.S.Satheesachandran
Bench: Thottathil B.Radhakrishnan, S.S.Satheesachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Tr.Appeal(C).No. 4 of 2010()
1. ADV.M.PHILIP KOSHY, S/O.M.P.KOSHY,
... Petitioner
Vs
1. PROF.SAJI CHACKO, S/O.K.K.CHACKO,
... Respondent
2. MADHU PARUMALA, S/O.GOPALA PANICKER,
3. K.SAJEEV, S/O.KUNJUKUNJU,
For Petitioner :SRI.T.KRISHNAN UNNI (SR.)
For Respondent :SRI.JACOB P.ALEX
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :15/06/2010
O R D E R
C.R.
THOTTATHIL B. RADHAKRISHNAN
&
S.S.SATHEESACHANDRAN, JJ.
-------------------------------
Tr.Appeal (C).NO.4 OF 2010 ()
-----------------------------------
Dated this the 15th day of June, 2010
J U D G M E N T
S.S.SATHEESACHANDRAN, J.
The respondent in an election petition, whose election as a member to the District Panchayat is under challenge, has filed this transfer appeal against the order of the learned Single Judge turning down his request for transfer of the election petition to a different court imputing bias against the Presiding Officer trying the election petition.
2. Parties, for the sake of convenience, are referred to as shown in the present appeal, the returned candidate as the 'appellant' and the petitioner in the election petition as the '1st respondent'.
3. Short facts necessary for disposal of this appeal, leaving aside the rival case canvassed by the parties in the proceedings Tr.A.4/10 2 of the election petition now pending for consideration, may be summed up thus: The court below has passed a number of adverse orders against the appellant flouting and overlooking the statutory provisions in the trial of the election petition, and therefore the appellant has reasonable apprehension that he will not get a 'fair trial 'from that court. In the course of the trial of the election petition, more particularly, when the evidence of the 1st respondent was in progress, an application moved by him (I.A.No.221/2010) for issuing notice against some third parties, two members of the Legislative Assembly and another, that they be also named in the final decision of the court as having indulged in corrupt practices, which was the main ground for impeaching the election of the returned candidate, without giving any opportunity to the appellant, was ordered by the court and that order, viewed in the backdrop of various adverse orders passed earlier against the appellant, would give an impression that there is a likelihood of bias on the part of the court, and a trial before that court would not only be unfair but unjust depriving the appellant to have the opportunity of fair trial. Coupled with the above, another circumstance canvassed to Tr.A.4/10 3 impute bias against the presiding officer was that he had allowed the applicant to have a scrutiny of the election records including ballot papers overruling the objections of the appellant and without entering any finding whether satisfactory ground had been established for such scrutiny. Examination of ballot papers was allowed even before the examination of the first respondent, petitioner in the election petition, and the procedure so followed has generated reasonable apprehension in the mind of the appellant that the court is biased and he would not get a fair trial. The transfer petition raising imputations as above was filed seeking transfer of the election petition to any other District court (Election Tribunal) within the State.
4. The learned Single Judge, after hearing both sides and considering the rival case presented by them with reference to disputed facts and also questions of law, was not impressed by the ground of transfer - bias imputed against the Presiding Officer - canvassed by the appellant, and concluded that the appellant has not made out a case for transfer. Whether a transfer under Section 24 of the Code of Civil Procedure in Tr.A.4/10 4 relation to an election petition presented before an appropriate court notified by the Government in consultation with the High Court under Section 88(2) of the Kerala Panchayat Raj Act, 1994 for short, the 'Act', which too arose for consideration on the challenges pressed into service by the first respondent opposing the transfer petition was also gone into by the learned Single Judge adverting to the relevant sections of the Kerala Panchayat Raj Act, Representation of the People Act, 1951 and two decisions rendered by this Court namely, Ravi v. Ali Kunhu (2007 (1) KLT 1034) and Aisha Potti v. The Returning Officer (2002 (2) KLT 146). In the former of the two decisions, Ravi v. Ali Kunhu (2007 (1) KLT 1034), it has been held that sub section (2) of Section 88 of the Act is not mandatory, but only directory, and the jurisdiction of a court to try an election petition under Section 88(1) is not dependent on a notification under Section 88(2) of the Act. In the other decision rendered earlier in point of time, namely, Aisha Potti v. The Returning Officer (2002 (2) KLT 146), a different view had been taken that once the Government issued a notification as contemplated under sub section (2) of Section 88 of the Act, that court alone Tr.A.4/10 5 will have jurisdiction to try the election petition, and, therefore, transfer of an election petition from a notified court to another non-notified court invoking Section 24 of the CPC is impermissible. The learned Single Judge observing that the provisions of the CPC are made applicable subject to the provisions of the Act and the rights of the parties are governed by the provisions of the Panchayat Raj Act and the rules thereunder even in matters relating to trial of an election petition, has held that the decision in Ravi v. Ali Kunhu (2007 (1) KLT 1034) cannot be understood to lay down the proposition that the Munsiff/District Court concerned has jurisdiction "even without a notification to that effect as contemplated under Section 88(2) of the Act." The appellant assails the order passed by the learned Single Judge on both the conclusions formed - rejection of his grounds for transfer and also that the above provision, Section 88(2) of the Panchayat Raj Act, interdicts and curtails the superior court from invoking Section 24 of the CPC in transfer of an election petition from a notified appropriate court to another non-notified court, but, court of competent jurisdiction as under Section 88(1) of the Act. Tr.A.4/10 6
5. We heard the counsel on both sides, learned Senior counsel Sri.T.Krishnanunni, for the appellant, and Sri.Jacob P. Alex for the 1st respondent. The learned senior counsel Sri.T.Krishnanunni adverting to the orders passed from time to time by the Presiding Officer at various stages of the trial, strenuously contended that the manner in which the trial is being conducted has created reasonable apprehension in the mind of the appellant that he will not get a fair trial. We, however, have noticed that the adverse orders passed by the court below against the appellant had been challenged by him before this Court, and also before the apex court twice, and at any stage thereof, he had not imputed any bias nor even a whisper thereof against the Presiding Officer. It is also undisputed that further challenges taken by the appellant, after being negatived by this Court, on both occasions, had been turned down by the apex court. We refrain from making any reference to the earlier orders passed by the Presiding Officer, in respect of which challenges had been raised before this Court, some of them later to the apex court also, as any dilation over Tr.A.4/10 7 such orders has to be avoided at this stage. The learned senior counsel Sri.T.Krishnanunni advanced an argument that the omission, default or failure on the part of the appellant to impute bias against the Presiding Officer when his previous orders were challenged before this Court earlier, and also the apex court, cannot be viewed as a circumstance belittling the ground for transfer raised. We need only observe that the final orders passed either by this Court or the apex court in respect of the challenges raised against the orders of the Presiding Officer have to be treated as conclusive except to any matter left open for consideration in trial. Any imputation of bias against the Presiding officer on account of the adverse orders previously passed against the appellant, which had been further agitated before this Court, and also the apex court, cannot be countenanced as he had no such case earlier and further the decisions rendered thereof have become final and conclusive.
6. So, on the facts presented, the ground of transfer raised by the appellant imputing bias against the Presiding Officer has necessarily to be examined solely with respect to the orders Tr.A.4/10 8 passed during the course of recording of the evidence for scrutiny of the election records, and also allowing an application moved by the 1st respondent, I.A.No.221 of 2010, for issuing notice to some third parties as to why they should not be named, for having indulged in corrupt practice, in the final decision to be rendered in the case.
7. First of all, whether the court below should have permitted the scrutiny of ballot papers at the stage of the examination of the 1st respondent/petitioner in the election petition, and at that stage, whether sufficient grounds had been made or not for such scrutiny, no doubt, depends upon the facts and circumstances involved and also the materials placed before the court. The appellant has not challenged that order permitting scrutiny of the ballot papers. The learned counsel for the 1st respondent submits that the scrutiny of the election records were done by both the parties in the presence of an officer of the court as permitted by the court. Though scrutiny of the records by the appellant or any representative on his behalf was disputed, we find no need to go into such question in the Tr.A.4/10 9 present appeal. A court having jurisdiction to decide a case is fully empowered to pass such orders as are necessary for a decision in the case. Jurisdiction conferred on the court enables it to pass even such order which may turn out to be wrong and perhaps illegal. Aggrieved party affected by that order has to challenge it in proper proceedings before the appropriate forum as provided by law. Even assuming that the order passed by the Presiding Officer in the present case for scrutiny of election records is wrong or illegal, that by itself is not sufficient to hold that that order was passed as he is biased towards the appellant. Needless to point out, if the scrutiny of the records permitted by the court during the stage of examination of the 1st respondent has vitiated the trial, it may be a ground available to the appellant to impeach the final order in the case, if need be. At what stage, a court trying an election petition can permit inspection of the ballot papers depends upon the materials placed and also the facts and circumstances involved in the case. Secrecy of ballot which is often projected as a shield to resist the scrutiny has necessarily to be weighed with that of a competing principle 'the purity of election'. The 1st respondent/the Tr.A.4/10 10 petitioner in the election petition has challenged the election of the appellant imputing corrupt practice alleging that keeping the District collector in duress, in his presence, the postal ballots had been forcefully collected and stamped in favour of the appellant. May be in the background of the allegations raised challenging the election of the appellant and materials prescribed, the court below has permitted the scrutiny of the election records in the presence of an officer of the court in advance, before completing the recording of evidence by the parties. In the context, it may be profitable to note the decision of the apex court in Neelalohithadasan Nadar v. George Mascrene (1994 (1) KLT 887 (SC)) repelling the challenge raised over the scrutiny of the election records, the apex court has observed thus:
"Secrecy of ballot" principle pre-supposes a validly cast vote, the sanctity and sacrosancy of which must in all events be preserved. When it is talked of ensuring free and fair elections it is meant elections held on the fundamental foundation of purity and the "secrecy of ballot" as an allied vital principle. In view of the above, it is the settled position that out of the two competing principles, the Tr.A.4/10 11 purity of election principle must have its way. Section 94 of the Act cannot be pressed into service to suppress a wrong coming to light and to protect a fraud on the election process. The primary purpose was thus to purify the electoral process and not to hunt or hound the voter's choice, when exercised validly and freely. It is for that purpose that the court, in the interest of justice, to facilitate a quick trial permitted the parties to inspect beforehand the records but after the framing of the requisite issues arising from the pleadings of the parties and earlier. This attempt could not be termed as permitting a 'roving or fishing' enquiry, as it is sometimes described in cases of a claim for recount."
The above decision rendered by a Bench of three Judges in a case wherein the challenge was on the ground of double voting, no doubt, has significance in examining the order passed by the court below in permitting the scrutiny of the election records in the course of recording evidence. We are not expressing any opinion on the correctness of the order, but only observing that we are not impressed by the arguments canvassed that the scrutiny permitted before completing of the evidence is illegal.
8. The Presiding Officer on an application moved by the Tr.A.4/10 12 1st respondent (I.A.No.221/2010) had ordered for issuing notice to some third parties directing their appearance to show cause why they should not be named in the final decision as having indulged in corrupt practice is projected to impute bias against him. The order passed against such third parties, it is submitted, had already been set aside by this Court on the challenge taken by two among the parties. The appellant was not given opportunity even to file a counter against the above interlocutory application is the basis for imputing bias. A time limit had been fixed by this Court for disposal of the case and that period being over, further extension was applied for by the court below and allowed, is not under dispute. The term of office of the appellant, whose election is impeached in the petition, will be over within a few months. Challenges raised before this Court and later before the apex court, over various orders of the court below, and the orders passed staying the trial of the election petition, no doubt, have contributed for the delay in the culmination of the proceedings. In that backdrop, the non-providing of an opportunity to the appellant/petitioner to file a counter to the interlocutory application has to be examined, Tr.A.4/10 13 and that too, with reference to the statutory provisions empowering the court to issue notice to third parties to be named in the final decision in case they have indulged in corrupt practice in the election. True, the stage at which such notice was issued was not correct. Still, having regard to the statutory provisions, it goes without saying that the appellant has no say in the matter. He has also not challenged the order passed by the court issuing notice to the third parties. When the parties who had been issued the notice had challenged such order, the court was not inclined to adjourn the trial is canvassed as a ground or a circumstance to impute bias against the Presiding Officer. We find no merit in the case so projected since a time bound disposal had been ordered by this Court earlier, which the court below was bound to give effect to. So much so, the grounds canvassed for transfer - bias imputed against the Presiding Officer - as held by the learned Single Judge, is unworthy of any merit.
9. The matrix of the case for transfer - the ground of bias imputed against the Presiding Officer - having been found to be unworthy of any merit or consideration, the decision of the Tr.A.4/10 14 learned Single Judge declining the request for transfer has only to be upheld. But, as already indicated, since conflicting views had been expressed over the competency of the superior court to invoke the powers under Section 24 of the CPC to transfer an election petition from a notified court under Section 88(2) of the Act to another court, we deem it proper to examine that question as well to resolve the controversy thereunder.
10. Section 88 of the Act reads thus:
88. The Court competent to try election petition:- (1) The Court having jurisdiction to try an election petition shall be,-
(a) in the case of a Village Panchayat, the Munsiff's Court having jurisdiction over the place in which the headquarters of the Panchayat is located; and
(b) in the case of a Block Panchyat or District Panchayat the District Court having jurisdiction over the place in which the headquarters of the Panchayat concerned is located.
(2) the Government shall, in consultation with the High Court notify the appropriate Courts in the Gazette.
Stressing upon Article 243-O of the Constitution of India, which Tr.A.4/10 15 place a bar to interference by courts in electoral matters otherwise than provided by any law by the Legislature of the State, the learned counsel for the 1st respondent has argued that the statutory provision covered by Section 88(2) of the Act has to be honoured in letter and spirit, and only the court notified by the Government as the appropriate court has jurisdiction to try an election petition. The High Court, even when it has supervisory jurisdiction over the civil court, which has been notified as the appropriate court under Section 88(2) of the Act by the Government to try the election petition, cannot exercise any power under Section 24 of the CPC to transfer an election petition from the file of that appropriate court to any other court as it is not so provided under the provisions of the Act, is the submission of the counsel. Section 94 of the Act envisages of trial of an election petition subject to the provisions of that Act and Rules in accordance with the procedure applicable under the Code of Civil Procedure is highlighted by the counsel to contend that only in respect of the trial, and that too, subject to the provisions of the Act and Rules, the provisions of the CPC have application in resolving election disputes. When the statute, Tr.A.4/10 16 Panchayat Raj Act, is silent with respect to the conferment of any power on any superior court to transfer election petition from a notified appropriate court, it is the submission of the counsel that whatever be the circumstances justifying a course of transfer, it cannot be done by a superior court invoking Section 24 of the CPC. Drawing an analogy with reference to the provisions under the Representation of the People Act, particularly, Sections 80A, 86, 96, 99 and 116 A of the Act, it is argued that only the Judge/Judges nominated by the Chief Justice can try an election petition under the above Act, and similarly, the appropriate court notified by the Government under Section 88(2) of the Act alone has jurisdiction to try an election petition under that Act and, it cannot be transferred by the superior court under Section 24 of the CPC for the reason that the appropriate court notified is a civil court under its supervision and control. Reliance in support of the proposition canvassed is placed by the counsel in Upadhyaya Hargovind Devshanker v. Dhirendrasinh Virbhadrasinhji Solanki and Others ((1988) 2 SCC 1), Satya Narain v. Dhuja Ram and Others (AIR 1974 SC 1185) and Mohinder Singh Gill and another Tr.A.4/10 17 v. The Chief Election Commissioner, New Delhi and others (1978) 1 SCC 405).
11. Per contra, the learned counsel Sri.T.Krishnanunni pointing out that efficacious and speedy disposal of an election petition, the disposal for which an outer limit from the date of its presentation is prescribed under Section 93(5) of the Act, is the spirit behind notification of the appropriate court for trial of the election petition, and it does not in any way whittle down the powers of the superior court where the court notified as the appropriate court is a civil court under its supervision and control. The establishment of the civil court and its supervision and control by the superior courts with reference to the Civil Courts Act, Code of Civil Procedure and the Constitution of India is stressed upon by the counsel to contend that the notification issued by the Government nominating one or more of the civil courts having competence and jurisdiction to try an election petition as enjoined under Section 88(1) of the Act, in no way curtail, and further, it cannot place any restriction or interdiction on the superior court to exercise its empowerment to transfer an Tr.A.4/10 18 election petition from the notified appropriate court to any other court of competent jurisdiction. At the most, only in respect of the presentation of an election petition the notification over the appropriate court can be given significance as of having inviolability having regard the provision under Section 89 of the Act, but not in relation to the authority and power of the superior court as enjoined under Section 24 of the CPC to transfer the election petition to some other competent court, if need be, according to the learned counsel. The learned counsel has relied on E.Kumar v. P.Jothi and Others (CDJLJ 2009 MHC 284) and N.P.Ponnuswami v. the Returning Officer, Namakkal Constituency, Namakkal, Salem District and Others (AIR 1952 SC 64) to support the argument that once after the presentation of the election petition before the appropriate court the supervisory control enjoined by the superior court which has the power of transfer of the proceeding can invoke the provisions under Section 24 of the CPC, is empowered to order transfer, and, for which, no sanction or permission or a fresh notification from the Government nominating the transferee court as the appropriate court is called for, and, at the most, the court to Tr.A.4/10 19 which the case is transferred must be a court having competent jurisdiction to try the election petition under Section 88(1) of the Act. Judicial pronouncement rendered by a Division Bench of this Court, namely, Sushama v. Mercy Antony (1999 (3) KLT
818) on the maintainability of the civil revision petition under Section 115 of the CPC over the judgment passed by the appellate court in respect of an election petition under the Panchayat Raj Act is pointed out by the learned counsel to contend that the power of superintendence and control exercised by this Court over the civil court under the constitutional provisions and also that of the Code of Civil Procedure not only confer empowerment, but, cast an obligation to exercise its powers under Section 24 of the CPC in the matter of transfer of an election petition from an appropriate court to a court of competent jurisdiction. Articulating on the constitution and establishment of Court, Tribunal and a civil court, and the distinction to be drawn between a civil court and court trying a dispute of civil nature and the administration and control over such court, Tribunal and civil court by the superior court, the learned counsel placing reliance on Nahar Industrial Tr.A.4/10 20 Entreprises Ltd. v. Hong Kong and Shanghai Banking Corporation ((2009) 8 SCC 646), contended that the appropriate court notified by the Government for trial of the election petition is a civil court which otherwise has jurisdiction under Section 88(1) of the Act. Reading into Section 88(2) of the Act, a restriction placing an embargo on the superior court from transferring the election petition from the appropriate court to another court of competent jurisdiction is not correct, and the notification naming an appropriate court by the Government, does not in any way affect supervisory jurisdiction exercisable under Section 24 of the CPC.
12. Sub section (2) of Section 88 of the Act provides for notification of an appropriate court by the Government in consultation with the High Court, and so much so, that court, and that court alone, which is otherwise having jurisdiction as under sub section (1) of Section 88 of the Act, has jurisdiction to try the election petition, is the ground of opposition canvassed to contend that Section 24 of the CPC, applicable for transfer of a case from one civil court to another, cannot be invoked for Tr.A.4/10 21 transfer of an election petition from an appropriate court by the superior court. How far the proposition so canvassed is correct is the question to be examined in the case. We may note two things before proceeding further that only the established civil court of competent jurisdiction can be notified by the Government as the 'appropriate court' for trial of the election petition and that there is no special procedure under the Act for transfer from an appropriate court notified by the Government to another court of competent jurisdiction. As regards the presentation of an election petition, qualifying the persons who are competent to present such petition and also within the time limit fixed thereof, Section 89 of the Act mandates that such election petition has to be presented before the appropriate court notified by the Government. The Statute clearly specifies the court, the persons competent to do so and also the outer time limit thereof for presentation of an election petition before the appropriate court. That does not indicate that a restriction is imposed on the superior court from making an order of transfer, if need be, from the appropriate court to another court of competent jurisdiction. In the context, it has to be noticed that Tr.A.4/10 22 jurisdiction to try an election petition under sub section (1) of Section 88 of the Act, so far as the Village Panchayat is concerned, is with the Munsiff Court, and for the District Panchayat, the District Court, having jurisdiction over the place in which the headquarters of such Panchayat is located. Only that court/courts, and if there are more than one court, one or more of them, can be notified as the appropriate court/courts by the Government after consultation with the High Court. It is not a case of the Government after consultation with the High Court conferring jurisdiction on a court to try an election petition, publishing a notification naming that court as the appropriate court. The Munsiff/District court/courts, which are otherwise having jurisdiction to try the election petition, after consultation with the High Court is/are notified by the Government as the appropriate court/courts for trial of the election petition relating to the disputes to the election of the members of the Panchayat. An election petition can be presented by any candidate at such election or by any elector of the ward, to which the election was held. Possibility of having one or more election petitions relating to the election of a candidate from a ward of the Panchayat, at the Tr.A.4/10 23 instance of any candidates at such election or by electors of the ward, cannot be ruled out. If election petitions are filed before different courts where there are more than one Munsiff Court having jurisdiction as enjoined under Section 88(1) of the Act, consideration of such petitions jointly may be necessary to avoid conflicting decisions and also to suit the convenience of the parties, which, in that event, is possible only on transfer of such petitions to one court. That may inevitably cause delay in trial and disposal of the election petitions. So much so, the nomination of the appropriate court restricting the presentation of the election petition to one such court is essential and that has been taken care of under Section 89(1) of the Act. Whether such restriction in the matter of presentation of the election petition, does in any way indicate that the trial of the election petition so presented can be conducted only by the appropriate court is the question to be examined. We do not find any merit in the arguments canvassed by the learned counsel for the 1st respondent that the procedure under the Code of Civil Procedure is not fully applicable to the trial of an election petition, but only to the extent and subject to the provisions of the Act and the Tr.A.4/10 24 Rules as specified under Section 94 of the Act. So far as the trial of an election petition otherwise than stating that the court having jurisdiction to try the election petition shall be nominated as the appropriate court by the Government in consultation with the High Court and the election petition shall be presented before that court, nothing more is provided in the Act and the Rules regarding the procedure how the trial of the petition is to be regulated. The Civil court having competent jurisdiction is notified as the appropriate court, where there are more than one court, one of them or more, as the case may be, by the Government has to be taken note of to examine the scope and ambit of Section 94 of the Act. What are the grounds under which an election of a candidate can be impeached are provided under Section 102 of the Act, and the provisions of the Act and Rules thereunder govern how the grounds canvassed for impeaching the election are to be appreciated. The trial of an election petition, as nearly as may be, it is stated under Section 94 of the Act, has to be conducted in accordance with the procedure applicable under the Code of Civil Procedure for the trial of suits subject to the Act and the Rules made thereunder. Tr.A.4/10 25 Authority of the court to refuse examination of any witness or witnesses where it has reason to decline such examination, recording the reasons in writing thereof, and also the applicability of the provisions of the Indian Evidence Act in recording the evidence subject to the provisions of the Act, as spelt out in Section 94 of the Act does not in any way postulate that the trial of an election petition by an appropriate court is not a trial by a civil court following a different procedure otherwise than provided under the CPC. On the contrary, subject to the provisions of the Act and Rules, the election petition has to be tried by the appropriate court, which is a civil court, as nearly as may be, following the procedure under the CPC as applicable to the trial of suits. A civil court notified as an appropriate court trying an election petition in accordance with the CPC is subject to all other incidents forming part of the trial under the Code except to the extent where there is a specific exclusion. Other than stating of the authority of the court to refuse the examining of witnesses for justifiable reasons and also the applicability of the Indian Evidence Act in the recording of evidence, there is nothing in Section 94 of the Act excluding the Tr.A.4/10 26 incidents of trial under the CPC in the trial of an election petition by the appropriate court.
13. We may also advert to some of the other relevant sections in the Act in the resolving of election disputes to the offices of the Village Panchayat/District Panchayat, which give a clear indication that there is no special procedure dehors the Code of Civil Procedure applicable in the trial of such election petitions before the court, whether it be the appropriate court as notified by the Government or as the ordinary civil court constituted under the law of the land, except to the extent of rendering a decision subject to the provisions under the Act and Rules thereunder. Section 113 of the Act confers right on an aggrieved person to prefer an appeal against the orders passed by the appropriate court under Sections 100 and 101 of the Act. Section 113 of the Act reads thus:
113. Appeals:- (1) Any person aggrieved by an order made by the court under section 101, may prefer an appeal, on any question of law or of fact,-Tr.A.4/10 27
(a) before the District Court on the decision of the Munsiff's Court; and
(b) before the High Court on the decision of the District Court;
(2) The Government shall, in consultation with the High Court, notify the appropriate courts in the Gazette.
(3) Every appeal under this section shall be preferred within a period of thirty days from the date of the order of the court under section 100 or section 101:
Here also, sub section (2) of the above Section contemplates of notification of the appropriate court in consultation with the High Court in the Gazette. Procedure in appeal is governed by Section 114 of the Act, which, in explicit terms spell out that the appeal has to be disposed of in accordance with the procedure laid down in the Code of Civil Procedure for hearing of the appeals. So much so, an appeal preferred against the decision under Sections 100 and 101 of the Act by the District Court notified as the appropriate court, and the High Court shall be strictly governed by the procedure laid down in the Code of Civil Procedure. Another important section which has significance in relation to the dispute involved falls under Chapter XIV of the Tr.A.4/10 28 Act dealing with the provision relating to members and president of Panchayats. Any dispute over the validity of election of a President and Vice President of a Panchayat has to be resolved on presentation and adjudication of a petition before the competent court as covered under sub section (14) of Section 153 under the above Chapter of the Act. Sub Section (14) of Section 153 of the Act reads thus:
(14) Where a dispute arises as to the validity of an election of President or Vice President of a Panchayat, any member of that Panchayat may file a petition-
(a) in the case of Village Panchyat, before the Munsiff Court having jurisdiction over the area in which its headquarters is situated;
(b) in the case of Block Panchyat or District Panchayat, before the District Court having jurisdiction over the area in which its headquarters is situated, for decision and such decision shall be final.
Here also, it is specifically provided under sub section (15) of Section 153 of the Act that the procedure for hearing of such an election petition shall be as laid down in the Code of Civil Tr.A.4/10 29 Procedure while trying a suit. Sub section (15) reads thus:
(15) Every petition [referred to in sub-section (14)] shall be disposed of in accordance with the procedure laid down in the Code of Civil Procedure, 1908 (Central Act 5 of 1908) while trying a suit.
Not only that, a different and special procedure has not been provided for disposal of the election petition in relation to any office of Village Panchayat/District or that of the President/Vice President of such Panchayat the provisions of the Act makes it crystal clear that the procedure laid down in the Code of Civil Procedure in the case of trial of a suit has to be followed for the hearing and disposal of such petitions. Merely because the Act provides for notification of an appropriate court from among the competent civil courts in entertaining election petition and also appeals as under Sections 88(2) and 113(2) of the Act respectively, it cannot be said that the procedure laid down in the Code of Civil Procedure in the hearing and trial of such petition as in a suit which confers empowerment on the superior Tr.A.4/10 30 court to transfer a petition from the appropriate court to a competent court of civil jurisdiction in exercise of the powers under Section 24 of the CPC has been curtailed or restricted or excluded by the Act. Since no special procedure for trial and disposal of an election petition otherwise than under the Code of Civil Procedure is provided under the Act, the nomination of one of the competent courts of civil jurisdiction by the Government as the appropriate court under the provisions of the Act with or without consultation of the High Court makes no difference in exercise of the powers of the superior court in supervising, controlling and regulating the trial of the suit including its exercise of superintendence under the revisional jurisdiction over such subordinate courts conferred under Section 115 of the Act or powers of transfer under Section 24 of the CPC.
14. Is there any restriction on the powers of the superior court under Section 24 of the CPC for the sole reason that one among the competent civil courts, which is otherwise having jurisdiction over the dispute is nominated and notified as the appropriate court by the Government where the procedure to be Tr.A.4/10 31 followed by that appropriate court for deciding the dispute is that of the Code of Civil Procedure, has to be examined with reference to the question whether any special procedure has been provided in the Act, the statute, or the statutory rules to be followed by that court, or appellate forum, if provided, on any challenge from the decision of the court of first instance. An established civil court, which otherwise has jurisdiction, is notified by the Government as the appropriate court for trial of the election petition. That being so, in the absence of any special procedure under the Statute, the procedure to be followed by that court in the hearing and disposal of the petition is the ordinary rules of Code of Civil Procedure subject to the exception, if any, provided under the Statute namely, the Panchayat Raj Act and the Rules thereunder.
15. The long catena of judicial pronouncements from National Telephone Company Ltd. (In Liquidation) and another v. His Majesty's Postmaster-General (1913 AC
546) unequivocally spell out that where a question is referred to an established court without more, the ordinary incidents of the Tr.A.4/10 32 procedure of that court with the general right of appeal from its decisions are attached, and to be followed. The House of Lords in the above decision considered the entertainability of an appeal, the proceedings of which commenced on a reference to the Railway and Canal Commission under the Telegraph (Arbitration) Act, 1909. Noticing that the reference to the above Commission has been made as a Court of record and not as arbitrators, it was held that an appeal lay from its decision to the Court of Appeal. Where a reference is made to an established court, without more, Lord Atkinson has observed that it is "simply the question of extending the jurisdiction of an existing Court of law, with all its incidents a right of appeal, to a new matter closely resembling in character those matters over which it has already jurisdiction as a Court of law". In Secretary of State for India v. Chellikani Rama Rao and others (AIR 1916 Privy Council 21), considering the procedure to be followed in the case of appeal preferred against an order of the Forest Settlement Officer as under the Madras Forest Act (V of 1882), it has been held where the appeal is so preferred to an established court as an ordinary court of the country, the Tr.A.4/10 33 procedure to be followed in appeal is the ordinary rules of the Code of Civil Procedure. The apex court in National Sewing Thread Co. Ltd. Chidambaram v. James Chadwick and Brothers Ltd. (AIR 1953 SC 357) dilating on the procedure to be followed by the High Court in an appeal under the Trade Marks Act, 1940, then in force, which does not provide or lay down any procedure for prosecution of the appeal has observed that once the appeal is preferred, it has to be determined according to the rules and practice of the procedure of the court and in accordance with the provisions of the Charter that court is constituted, and it confers on it power in respect to the method and manner of exercising that jurisdiction. The same principle was reiterated by the apex court in Collector, Varansi v. Gauri Shanker Misra and others (AIR 1968 SC 384) reiterating that when a Statute directs that an appeal shall lie to a court already established then that appeal must be regulated by the practice and procedure of that court.
16. In Ram Chandra Aggarwal and another v. The State of Uttar Pradesh and another (AIR 1966 SC 1888), Tr.A.4/10 34 the apex court dilating on the procedure to be followed by a civil court in a proceeding on a reference from a criminal court under Section 146 (1) of the Code of Criminal Procedure, 1898, has observed thus:
"When a special or local law provides for an adjudication to be made by a constituted Court
- that is, by a Court not created by a special or local law but to an existing Court - it in act enlarges the ordinary jurisdiction of such a Court. Thus, where a special or local statute refers to a constituted Court as a Court and does not refer to the Presiding Officer of that Court the reference cannot be said to be a persona designata".
17. The question involved as to the procedure to be followed when an established court has been nominated to decide the dispute by a statutory prescription with the Statute laying down no specific procedure, has been considered by various High Courts in relation to the entertainability of cross objections in appeal from the awards passed by the Motor Accidents Claims Tribunal under the Motor Vehicles Act. Tr.A.4/10 35
18. In Delhi Transport Undertaking of Delhi Municipal Corporation, Delhi and another v. Kumari Lalita (AIR 1972 KLT 281), B.P.Venkatappa Setty v.
B.N.Lakshmiah and another (1973 ACJ 306), The Union Co-operative Insurance Society Ltd., Madras v. Lazarammal Ravel and others (AIR 1974 Madras 379), K.Chandrashekara Naik and another v. Narayana and another (AIR 1975 Karnataka 18), Gurdev Kaur and anotehr v. Rash Behari Das (1979 ACJ 304), U.P.State Road Transport Corporation v. Smt.Janki Devi and others (AIR 1982 Allahabad 296) and Sudhakaran v. Varghese (1983 KLT 5), the respective High Courts rendering the decisions thereof have held that cross objections are entertianable in an appeal preferred against the award of the Motor Accidents Claims Tribunal under the Motor Vehicles Act on the principle that when the Statute provides for a right of appeal but is silent as to the procedure to be followed by the appellate court, the rules of the civil court procedure are applicable in the hearing and disposal of such appeals. Similarly, in considering whether in an appeal preferred from an Tr.A.4/10 36 award of the Motor Accidents Claims Tribunal, the High Court can scrutinise such appeal as to its admissibility under Order XLI Rule 11 of the CPC though it has not been so provided under the provision of the Motor Vehicles Act which enabled the filing of an appeal against an award of the Motor Accidents Claims Tribunal, a Division Bench of this Court in New India Assurance Co. Ltd. v. Pathumma (1986 KLT 553) has held that in the absence of any provisions in the Statute prescribing the procedure to be followed by the appellate forum or court, the ordinary incidents of the procedure of that court would be attracted to such appeal. In that view of the matter, it was held that Order XLI Rule 11 of the CPC is applicable for scrutinising the merit of the appeal from an award of the Tribunal at the admission stage to receive it on the file of the court.
19. We do not find any merit in the objection raised by the learned counsel for the respondents relying on Article 243-O of the Constitution of India and also Upadhyaya Hargovind Devshanker v. Dhirendrasinh Virbhadrasinhji Solanki and Others ((1988) 2 SCC 1), Satya Narain v. Dhuja Ram and Tr.A.4/10 37 Others (AIR 1974 SC 1185) and Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others ((1978) 1 SCC 405) to buttress the challenge that the Act is a self contained code and when an appropriate court is notified by the Government for trial of the election petition, the incidents of jurisdiction vested with the superior courts over such court in the matter of transfer, but not so provided, can be read into the Statute and given effect to. This Court in Sushama v. Mercy Antony (1999 (3) KLT 818) in examining the maintainability of a civil revision petition under Section 115 of the CPC against orders passed by the appellate court in appeals under Section 113 of the Act, has held the restriction under clause (b) of Article 243-O of the Constitution of India is only to the effect that "election to the Panchayat can be called in question only before an authority and in such a manner provided for by or under any law made by the Legislature of a State". There is nothing in the Act, as already indicated, barring the entertainability of a transfer of an election petition by the superior court invoking Section 24 of the CPC. We find that the decisions relied by the counsel have no application to the question involved - Tr.A.4/10 38 transfer of an election petition by the superior court, invoking its empowerment to do so under Section 24 of the CPC for justifiable reasons. We also notice that the decision E.Kumar v. P.Jothi and Others (CDJLJ 2009 MHC 284) relied by the learned counsel for the appellant has been rendered on an entirely different factual matrix in which a transfer order passed earlier before trial on consent was challenged later after disposal of the election petition impeaching the jurisdiction of that transferee court. We do not rely on that decision having regard to the facts involved in that case. In Nahar Industrial Entreprises Ltd. v. Hong Kong and Shanghai Banking Corporation ((2009) 8 SCC 646), which too relied by the counsel for the appellant, we notice that transfer of a case from a civil court to the Debts Recovery Tribunal constituted under the Recovery of Debts Due to Banks and Financial Institutions Act, was involved. Having regard to Section 31 of the above Act with reference to the establishment of civil courts and the procedure applicable to them, it was held that transfer of a suit from a civil court to the Debts Recovery Tribunal as ordered by the High Court, which was challenged, cannot be sustained. Some of the Tr.A.4/10 39 observations made in the decision delineating the characteristics of the civil courts from courts of civil nature constituted under the Special statute lend assurance to the view taken by us. However, we are not basing our conclusion over the issue of transfer canvassed on the above decision since in that case also the fact situation is different - transfer from a civil court to a Tribunal constituted under a Special statute, in which specific provision has been made indicating that pending suits as on the constitution of Tribunal alone can be transferred from the civil court.
20. The upshot of the discussion as above leads to the conclusion that where a Statute name or nominate or notify a court, which is otherwise having jurisdiction, as the appropriate court, to entertain and try any dispute with respect to a right covered by the Statute, but, without providing any special procedure to be followed by that appropriate court (subject to the existence of the rule making power), the absence of such statutory provision would imply that the ordinary incidents of the procedure of that court would be attracted in respect of such Tr.A.4/10 40 proceedings. When a Munsiff/District court or one among such courts, where the headquarters of the Village/District Panchayat is situated, as under Section 88(1) of the Act, is/are notified as the appropriate court/courts, with statutory prescription that the election petition shall be presented before that court (Section 89 of the Act) and the procedure to be followed in the trial of that petition shall be that of the Code of Civil procedure in the trial of a suit subject to the provisions of the Act and the Rules thereunder (Section 94 of the Act), in which no other procedure for such trial is spelt out, it follows the incidents of the jurisdiction of the Munsiff/District Court are maintained, and the ordinary incidents of the procedure of that court would be attracted in the trial of the election petition. That being so, the Munsiff Court subordinate to the District Court and also the High Court, and the District Court subordinate to the High Court, are subject to supervisory control of those courts, and such superior courts are empowered to transfer and withdraw any election petition tried by that appropriate court invoking Section 24 of the CPC. A note of caution of course is required so far as the withdrawal/transfer of an election petition by the Tr.A.4/10 41 District Court from an Additional District court challenging the election of a member of the District Panchayat since the notification of the appropriate court (District Court) by the Government under Section 88(2) of the Act is made by the Government in consultation with the High Court. Propriety, rather than strict rules of law, demand that any request for transfer of an election petition from an appropriate District Court trying an election petition as notified by the High Court should be presented before, and considered, by the High Court, and not by the District Court, though for the purpose of Section 24 of the CPC, Courts of Additional and Assistant Judges are deemed to be subordinate to the District Court. We do not wish to dilate much on the above aspect since that question is not directly but only incidentally arising for consideration in the present petition.
21. The resultant position emerging on an analysis of facts and law involved is that Section 24 of the CPC empowering the superior courts for transfer and withdrawal of the cases from the subordinate courts is applicable to the civil courts which have Tr.A.4/10 42 been notified as the appropriate courts on satisfaction of the grounds for such transfer. We affirm the view taken in Ravi v. Ali Kunhu (2007 (1) KLT 1034) that Section 88 (1) of the Act is a substantive provision while Section 88(2) of the Act is not so, and the jurisdiction of the court is not dependent upon sub section (2) of Section 88 of the Act. The notification under Section 88(2) of the Act by the Government naming an established civil court as the appropriate court for trial of the election petition, and that alone, with the Act laying down no special procedure to be followed by that court, does not in any way whittle down the incidents of procedure attached to and to be followed by that court. The established court notified being a civil court covered by the CPC, the incidents of transfer applicable to its proceedings exercisable by a superior court as under Section 24 of the CPC, are in no way affected by the notification by the Government under Section 88(2) of the Act. We hold that the contrary view expressed by the learned Single Judge in the order impugned in the appeal and also the decision Aisha Potti v. The Returning Officer (2002 (2) KLT 146) that Section 24 of the CPC is inapplicable for transfer of an election Tr.A.4/10 43 petition from a notified court to another court of competent jurisdiction is not correct, and we hold that those decisions do not reflect the correct proposition of law in the matter of transfer of an election petition under the Act.
We concur with the order of the court below that the transfer petition lacks merit and the request for transfer is not allowable in the case. Appeal is therefore dismissed.
THOTTATHIL B. RADHAKRISHNAN JUDGE S.S.SATHEESACHANDRAN JUDGE prp Tr.A.4/10 44