Karnataka High Court
Smt Pushpa R vs The State Election Commission ... on 15 November, 2021
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.16985/2021 (LB - ELE)
BETWEEN
SMT. PUSHPA R.,
W/O SRI. SRINIVAS MURTHY,
AGE 30 YEARS,
R/O GAGONAHALLI VILLAGE,
THIPPASANDRA HOBLI - 562 131,
MAGADI TALUK,
RAMANAGARA DISTRICT.
... PETITIONER
[BY SRI.RAVINDRA PRASAD B., ADVOCATE
(PHYSICAL HEARING)]
AND
1. THE STATE ELECTION COMMISSION KARNATAKA,
HAVING OFFICE AT NO.8, I FLOOR,
BEHIND KARNATAKA CO-OPERATIVE MARKETING
FEDERATION BUILDING, CUNNINGHAM ROAD,
BANGALORE - 560 052.
2. THE DEPUTY COMMISSIONER,
RAMANGARA DISTRICT,
RAMANAGARA - 562 108.
3. THE TAHSILDAR,
MAGADI TALUK,
RAMANAGARA - 562 120.
2
4. THE GRAMAPANCHAYATH CHIKKAHALLI,
O/AT CHIKKAHALLI,
TIPPASANDRA HOBLI,
MAGADI TALUK,
RAMANAGARA - 562 131.
5. THE RETURNING OFFICER/
DESIGNATED OFFICER,
GRAMPANCHAYATH CHIKKAHALLI,
O/AT CHIKKAHALLI, TIPPASANDRA HOBLI,
MAGADI TALUK,
RAMANAGARA - 562 131.
ALSO OFFICE AT ZONE OFFICER,
REGIONAL FOREST ZONE,
MAGADI - 562 120.
6. SMT. BHAVYA T G.,
W/O SRI. DEVENDRAKUMAR,
AGE 35 YEARS,
R/AT VIRUPAPURA VILLAGE,
TIPPASANDRA HOBLI,
MAGADI TALUK,
RAMANAGARA DISTRICT - 562 127.
... RESPONDENTS
[BY SMT.VAISHALI HEGDE, ADVOCATE FOR R1;
SMT.PRATHIMA HONNAPURA, AGA FOR R2, R3 AND R5
(PHYSICAL HEARING);
SRI.MAHESH S KUMAR, ADVOCATE FOR R4;
SRI.S.KUMAR, ADVOCATE FOR C/R6
(VIDEO CONFERENCING)]
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 12.08.2021 PASSED BY THE LEARNED TRIAL
COURT i.e HONBLE ADDL. SENIOR CIVIL JUDGE AND JMFC AT
MAGADI IN ELECTION PETITION NO.2/2021 PRODUCED AT
ANNEXURE - L.
3
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petition calls in question an order dated 12.08.2021 passed in E.P.No.2/2021 declining to entertain the election petition on the sole ground of the petition being presented with a delay of 24 hours as the last date for filing an application in terms of the Rules was on 27.02.2021. The last date i.e., 27.02.2021 was a fourth Saturday and was a non-sitting day though the office remained open and the petitioner could have filed an application on 27.02.2021. 28.02.2021 was a Sunday, the petitioner has filed the election petition on 01.03.2021, the next working day.
2. The Court hearing the Election Petition on considering the judgments of the Division Bench of this Court has declined to entertain the petition on the score that the delay in filing the election petition, even if it is of a day, cannot be entertained. While no fault found with the reasoning of the 4 Court, which declined to accept the election petition. The circumstances now brought before this Court would stand covered by the general orders passed by the Apex Court with regard to extension of limitation.
3. Learned counsel appearing for the petitioner would submit that all limitations under every statute was extended by the Apex Court in view of the prevailing situation of COVID-19, in the present case as well the election was conducted in the month of December, 2020. Therefore, the issue in this petition is covered by the directions issued by the Apex Court extending all statutory limitations and would submit that the filing of the election petition also should be extended in view of the peculiar facts of the case.
4. This submission of the learned counsel appearing for the petitioner though contrary to the statute would become acceptable as elections were conducted during the period in which the Apex Court had directed all statutory limitations even of filing cases before statutory Tribunals to be extended from 5 time to time. The Apex Court in Miscellaneous Application No.665/2021 by order dated 23.09.2021 has directed as follows:
ORDER
1.Due to the outbreak of COVID-19 pandemic in March, 2020,this Court took Suo Motu cognizance of the difficulties that might befaced by the litigants in filing petitions/ applications/ suits/ appeals/all other proceedings within the period of limitation prescribed underthe general law of limitation or under any special laws (both Centraland/or State). On 23.03.2020, this Court directed extension of theperiod of limitation in all proceedings before the Courts/Tribunalsincluding this Court w.e.f. 15.03.2020 till further orders.
2.Considering the reduction in prevalence of COVID-19 virus and normalcy being restored, the following order was passed in the Suo Motu proceedings on 08.03.2021:
"1. In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till14.03.2021 shall stand excluded. Consequently, the balanceperiod of limitation remaining as on 6 15.03.2020, if any, shall become available with effect from 15.03.2021.
2. In cases where the limitation would have expired during the period between 15.03.2020 till 14.03.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 15.03.2021. In the event the actual balance period of limitation remaining, with effect from 15.03.2021, is greater than 90 days, that longer period shall apply.
3. The period from 15.03.2020 till 14.03.2021 shall also standexcluded in computing the periods prescribed under Sections23 (4) and 29A of the Arbitration and Conciliation Act, 1996,Section 12A of the Commercial Courts Act, 2015 and provisos(b) and (c) of Section 138 of the Negotiable Instruments Act,1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.7
4. The Government of India shall amend the guidelines for containment zones, to state.
"Regulated movement will be allowed for medical emergencies, provision of essential goods and services, and other necessary functions, such as, time bound applications, including for legal purposes, and educational and job-related requirements."
3.Thereafter, there was a second surge in COVID-19 cases which had a devastating and debilitating effect. The Supreme Court Advocates on Record Association (SCAORA) intervened in the Suo Motu proceedings by filing Miscellaneous Application No.665 of 2021seeking restoration of the order dated 23.03.2020. Acceding to therequest made by SCAORA, this Court passed the following order on27.04.2021:2 "We also take judicial notice of the fact that the steep rise in COVID-19 Virus cases is not limited to Delhi alone but it has engulfed the entire nation. The extraordinary situation caused by the sudden and second outburst of COVID-19 Virus, thus, requires extraordinary measures to minimize the hardship of litigant-public in all the states. We, therefore, restore the order dated 23rd March, 2020 and in continuation 8 of the order dated 8th March, 2021 direct that the period(s) of limitation, as prescribed under any general or special laws in respect of all judicial or quasi- judicial proceedings, whether condonable or not, shall stand extended till further orders.
It is further clarified that the period from 14th March,2021 till further orders shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.
We have passed this order in exercise of our powers under Article 142 read with Article 141 of the Constitution of India. Hence it shall be a binding order within the meaning of Article 141 on all Courts/Tribunals and Authorities."
4.In spite of all the uncertainties about another wave of the deadly COVID-19 virus, it is imminent that the 9 order dated08.03.2021 is restored as the situation is near normal.
5.We have heard learned Attorney General for India, Mr. Vikas Singh, learned Senior Counsel for the Election Commission of India, Mr. Shivaji M. Jadhav, learned counsel for the SCAORA and other learned Advocates. There is consensus that there is no requirement for continuance of the initial order passed by this Court on 23.03.2020 and relaxation of the period of limitation need not be continued any further. The contention of Mr. Vikas Singh is that the order dated 08.03.2021 can be restored, subject to a modification. He submitted that paragraph No.2 of the order dated 08.03.2021 provides that the limitation period of 90 days will start from15.03.2021 notwithstanding the actual balance of period of limitation in cases where limitation has expired between 15.03.2020 and 14.03.2021. According to him, the period of limitation prior to15.03.2020 has to be taken into account and only the balance period of limitation should be made available for the purpose of filing cases.
106.The order dated 23.03.2020 was passed in view of the extraordinary health crisis. On 08.03.2021, the order dated23.03.2020 was brought to an end, permitting the relaxation of period of limitation between 15.03.2020 and 14.03.2021. While doing so, it was made clear that the period of limitation would start from 15.03.2021. As the said order dated 08.03.2021 was only a one-time measure, in view of the pandemic, we are not inclined to modify the conditions contained in the order dated 08.03.2021.
7.The learned Attorney General for India stated that paragraph No.4 of the order dated 08.03.2021 should be continued as there are certain containment zones in some States even today.
8.Therefore, we dispose of the M.A. No.665 of 2021 with the following directions: -
I. In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till02.10.2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15.03.2021, if any, shall become available with effect from 03.10.2021.11
II. In cases where the limitation would have expired during the period between 15.03.2020 till 02.10.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 03.10.2021. In the event the actual balance period of limitation remaining, with effect from 03.10.2021, is greater than 90 days, that longer period shall apply.
III. The period from 15.03.2020 till 02.10.2021 shall also stand excluded in computing the periods prescribed under Sections23 (4) and 29A of the Arbitration and Conciliation Act, 1996,Section 12A of the Commercial Courts Act, 2015 and provisos(b) and (c) of Section 138 of the Negotiable Instruments Act,1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.
IV. The Government of India shall amend the guidelines for containment zones, to state.
12"Regulated movement will be allowed for medical emergencies, provision of essential goods and services, and other necessary functions, such as, time bound applications, including for legal purposes, and educational and job-related requirements."
5. Therefore, in the peculiar facts of this case, though the election petition had to be preferred within the limitation prescribed under the statute, in terms of the order passed by the Apex Court, I deem it appropriate to extend the limitation that is prescribed under the statute to file the petition by 30 days, from the date of receipt of a copy of this order. If the petition is filed within 30 days from the date of receipt of copy of this order, the same shall be considered on its merit, without reference to delay as obtaining in the statute. The order declining to accept the application on the ground that it was delayed by a day runs counter to what the Apex Court has rendered in the aforesaid order.
136. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition is allowed.
(ii) Impugned order dated 12.08.2021 passed by the learned Additional Senior Civil Judge & JMFC, Magadi in Election Petition No.2/2021 stands quashed.
(iii) Matter is remitted back to the trial Court to consider the petition on its merit without reference to delay.
Sd/-
JUDGE SJK