Andhra HC (Pre-Telangana)
Thurupu Vasantha vs Rudraboina Balamani And Ors. on 19 November, 2002
Equivalent citations: 2003(1)ALD271
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
ORDER L. Narasimha Reddy, J.
1. The two Civil Revision Petitions (CRPs) filed under Section 115 of the Code of Civil Procedure and the two Writ Petitions (WPs) filed under Article 226 of the Constitution of India, arise under similar factual situation and related to the same subject matter. Hence, they are disposed of through a common order.
2. The Office of Sarpanch of Ramareddy Village of Sadasivnagar Mandal, Nizamabad District, was reserved in favour of women. The elections were held in November, 2001. The petitioner by name Thurupu Vasantha and two other candidates i.e., Smt. Argonda Hanmavva and Smt. Rudraboina Balamani, contested the elections. The petitioner was declared as elected. One of the unsuccessful candidates, by name Smt. Argonda Hanmavva, filed O.P. No. 1 of 2002 and the other candidate, by name Rudraboina Balamani, filed O.P.No. 2 of 2002, on the file of the Principal Junior Civil Judge-cum-Election Tribunal, at Kamareddy (hereinafter referred to as 'the Election Tribunal'). Notices in the said OPs were served upon the petitioner. She engaged an Advocate, but thereafter was set ex parte on 25-5-2002. The petitioner filed I.A. No.677 of 2002 in O.P. No. 1 of 2002 and I.A. No.681 of 2002 in O.P. No. 2 of 2002, under Order IX Rule 7 of CPC, to set aside the order dated 25-5-2002 setting her ex parte. Through a common order dated 24-9-2002, the Election Tribunal dismissed both the I.As. CRP Nos. 4493 and 4494 of 2002 are filed against the orders in the said I.As.
3. The evidence of the election petitioners was recorded and the Election Tribunal, through its common order dated 3-9-2002, directed recounting of the votes. W.P. Nos. 21372 and 21382 of 2002 are filed challenging the order of the Election Tribunal dated 3-9-2002 directing recounting of the votes.
4. The parties are arrayed at different positions in CRPs and WPs. For the sake of convenience, the election petitioner in O.P. No. 1 of 2002 Smt. Argonda Hanmavva, is referred to as 'the 1st respondent' and the election petitioner in O.P.No. 2 of 2002 Smt. Rudraboina Balamani, is referred to as 'the 2nd respondent'. The other respondents are mostly official respondents and the contest is between the petitioner and the contesting respondents (1st and 2nd respondents).
5. It was contended by the petitioner that as soon as she received notices in the OPs, she engaged an Advocate by name Sri J. Bhupati. It is her case that inspite of instructions being given to him, counters were not prepared and filed and on account of lapses committed by him, she was set ex parte. It is her case that she came to know the fact of her having been set ex parte, only when the authorities of the Panchayat Raj Department were taking steps to undertake recounting on 21-9-2002 and immediately thereafter, she filed the I.As. The 1st and 2nd respondents did not file any counter-affidavit to these I.As.
6. So far as the order directing recounting is concerned, it is the contention of the petitioner that even though she was set ex parte, the Election Tribunal was under obligation to see whether the Island 2nd respondents have made out a case for recounting. Mere existence of request will not do it.
7. Sri C.R. Pratap Reddy, learned Counsel for the petitioner, submits that the petitioner was diligent in pursuing the proceedings as is evident from the fact that she has engaged an Advocate as soon as she received notices in the OPs. He submits that the lapse was on the part of the advocate engaged by the petitioner in the Election Tribunal and she cannot be penalised for it. It is also his contention that the dismissal of the applications under Order IX Rule 7 CPC was mainly on the basis that recounting was already ordered. He states that as long as the plea put-forth by the petitioner was not disputed by the 1st and 2nd respondents, by filing counter-affidavits, the Tribunal ought to have set aside the order, setting aside the petitioner ex parte and proceeded with the matter, giving her an opportunity.
8. As regards the order directing recounting of the votes, the learned Counsel submits that it is settled principle of law that unless the election petitioners make out a strong case for undertaking recounting, the Election Tribunal cannot order for it. According to him, the existence of a meagre margin of votes between the elected and the defeated candidates, does not by itself, constitute the basis, and the Tribunal was under obligation to verify as to whether there existed any application for recounting at the relevant point of time before the Election Officer, whether the grounds pleaded are acceptable in law and whether they have been established on the basis of unimpeachable evidence.
9. Sri G. Manohar, learned Counsel appearing for the 1st and 2nd respondents, submits that the CRPs filed under Section 115 CPC are not maintainable for the reason that the Election Tribunal is persona designata and not a Civil Court. He states that the remedy under Section 115 of CPC is not available to challenge any proceedings of the Election Tribunal. He further states that the Election Tribunal has given adequate opportunity to the petitioner to file counter in the Election Petitions as well as to contest the matter. It was only when the petitioner did not turn up in spite of several opportunities being given, that the Election Tribunal had set her ex parte. According to him, even if the allegation of the petitioner is true, the same does not constitute a valid ground for restoration of the proceedings. On the validity of the orders passed by the Election Tribunal directing recounting, he states that in the absence of any contest to the contentions raised on behalf of the respondents herein, the Election Tribunal had no alternative but to take them as proved, and accordingly no exception can be taken to the said orders.
10. Before proceeding with the discussion on the merits of the matter, the objection raised on behalf of the respondents touching on the maintainability of the revisions, needs to be considered. Under Section 233 of the A.P. Panchayat Raj Act (for short 'the Act'), an election held under the Act can be questioned only by an Election Petition presented to such authority, and in accordance with such Rules as may be made in that behalf. In exercise of rule making power under Section 268 read with Section 233 of the Act, the Government of Andhra Pradesh framed A.P. Panchayat Raj (Election Tribunals in respect of Gram Panchayats, Mandal Parishads and Zilla Parishads) Rules 1995 issued under G.O. Ms. No. 111, PR & RD Department, dated 3-3-1995 (hereinafter referred to as 'the Rules'). Under Rule 2 of the Rules, election petitions are to be presented to the Court of District Munsif, having territorial jurisdiction over the places in which the office of Gram Panchayat is located, in respect of election of Members, Sarpanch and Upa Sarpanch of Gram Panchayat. Election Petitions challenging the election of Presidents, Vice Presidents, etc., of Zilla Parishads and Mandal Parishads shall be presented to the Court of Subordinate Judge, having territorial jurisdiction over such local bodies.
11. The learned Counsel for the petitioner submits that inasmuch as presentation of election petitions is provided to the Court as such and not with reference to any individual Presiding Officer by name or the office held by him, the Election Tribunal cannot be treated as persona designata. The main basis of contention of the learned Counsel for the respondents is Sub-rule 3 of Rule 2 of the Rules, whereunder it is stated that the Election Tribunal shall be deemed to exercise the jurisdiction as persona designata and not in his capacity as a Judge or another officer of the Government, as the case may be.
Rule 2 of the Rules reads as under:-
"2. (1) Save as otherwise provided no election held under the Act, whether of a Member, Sarpanch or Upa Sarpanch of Gram Panchayat, President and Vice-President of Mandal Parishad and Member of Mandal Parishad Territorial Constituency thereof, shall be called in question except by an election petition presented in accordance with these Rules to the Election Tribunal as defined in Sub-rule (2) by any candidate or elector against the candidate who has been declared to have been duly elected (hereinafter called the returned candidate) or if there are two or more returned candidates against all or any such candidates.
(2) The Election Tribunal shall be,--
(i) except in cases following under Clause (ii) a. The District Munsiff, if there is more than one District Munsiff, the Principal District Munsiff, having territorial jurisdiction over the place in which the office of Gram Panchayat is located, in respect of the election of Members, Sarpanches and Upa-Sarpanches of Gram Panchayats;
b. The Subordinate Judge or if there is more than one Subordinate Judge at the headquarters, having territorial jurisdiction over the place in which the office of Mandal Parishad or Zilla Parishad as the case may be, is located, in respect of the election disputes and matters pertaining to the election of President, Vice-President and Members of Mandal Parishad Territorial Constituencies and Chairman, Vice-Chairman and Members of Zilla Parishad Territorial Constituencies.
Explanation :--For purposes of these rules, the expressions "Subordinate Judge" and "District Munsif shall in relation to the Scheduled Areas mean the Agency Divisional Officer.
(ii) Where the Government so direct, whether in respect of Gram Panchayats generally or in respect of any class of Gram Panchayats, Mandal Parishads and Zilla Parishads such Officer or Officers of the Government as may be designated by the Government in this behalf by name or by virtue of office.
Provided that an election petition may, on application, be transferred :-
a. If presented to a Subordinate Judge or the District Munsiff, as the case may be, under Clause (i) by a the District Judge concerned to another Subordinate Judge or Munsiff Magistrate as the case may be, within his jurisdiction;
b. It presented to an officer of the Government under Clause (ii) by the Government to another officer of the Government.
Where an election petition is so transferred, the authority to which it is transferred shall be deemed to be the Election Tribunal.
(3) An Election Tribunal exercising jurisdiction under these Rules shall be deemed to exercise such jurisdiction as a persona designata and not in his capacity as a Judge or another officer of the Government, as the case may be."
From a reading of the Rule, it is evident that under Sub-rule (2), the jurisdiction is conferred upon the Courts of District Munsiff or Subordinate Judge, as the case may be per se. It is only under Rule 2(2)(ii) that the Government has reserved to itself the power to designate the officer or officers to act as Election Tribunals. While those constituted under Rule 2(2) (ii) squarely fit into the description of persona designata, the Election Tribunals referred to under Rule 2(2)(i) are Courts with expanded jurisdiction to try the election petitions.
12. Many a time, it is too difficult to distinguish between a regular Court and a persona designata. Both the institutions undertake adjudication. While the jurisdiction of a regular Court is general in nature, a persona designata emerges when jurisdiction is conferred upon an individual person to act as a Tribunal to decide certain specified matters. Such conferment of jurisdiction can be on a person identified by name or by the office held by him. If the conferment is on existing Court or institution as such, slightly different consequences follow.
13. In Re-Mangu Venkataiah case, (1962) 1 An.WR 296, a Division Bench had an occasion to deal with this aspect. Justice Kumarayya (as he then was) aptly described the distinction as under :-
"The expression 'persona designate' connotes a person appointed by name or other personal description in contradistinction to one whose identity is to be ascertained by the office he holds. So, then, where a person is indicated in the statute not by name but by an official designation, the question always arises whether the intention was to single him out as a persona designata i.e., as an individual, the designation being merely his further description or it was that he would cease to be the person so indicated on losing his official designation. If he be a judicial officer as in this case and is intended by the statute to act not otherwise than in a judicial capacity or a Court, certainly he cannot come within the expression 'persona designata' so that he may, irrespective of his continuance in office, perform the duty. Whether the intention is one or the other has to be gathered from the words used, the nature of the functions to be performed and the objects and purport of the statute."
14. In support of this ruling, reliance was placed on another judgment of this Court in Bathula Krishna Brahmam v. Daram Chenchi Reddi, (1959) 2 An.WR 265. The observations made thereunder were as under:
"The effect of all these decisions is that if the Presiding Officer was selected to act in a particular manner in his private or individual capacity, he acts as a persona designata and not in his capacity as a Judge. But if additional duties are entrusted to him as the Presiding Officer of that Court, he discharges them as a Court attracting all the incidence of such jurisdiction such as appeal, revision, etc., attached to it. When new functions are assigned to him, his jurisdiction as Presiding Officer is enlarged, quite dissimilar to the situation where the officer is constituted a special authority and does not act in the discharge of these functions as the Presiding Officer."
15. From the dicta laid in both the judgments, it is evident that the emphasis is only on the nature of conferment of jurisdiction, viz., as to whether the Presiding Officer was chosen to head the Tribunal in his private or individual capacity or additional duties were entrusted to him, as the Presiding Officer of that Court. In the present case, it is evident that the Election Tribunal, which was trying the election petitions was the one constituted under Rule 2(2)(i) and not the one constituted under Rule 2(2)(ii) of the Rules. Though Rule 2(3) is to the effect that the Election Tribunal exercising jurisdiction under these Rules shall be deemed to exercise the jurisdiction as persona designata, a combined reading of the entire Rule indicates that such presumption shall apply to the Tribunal constituted by the Government under Rule 2(2)(ii) of the Rules.
16. Whoever functions as the District Munsif, is empowered to hear and dispose of the election petitions by virtue of he being the Presiding Officer of that Court. The situation can be contrasted to the one under the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, whereunder the Appellate Tribunals are constituted by issuing separate notifications and conferring specific powers on the Presiding Officers so notified. In most of the cases, the officers conferred with such jurisdiction are the Judges of the rank of District Judge, and acting as the Presiding Officers of certain Courts in the districts. However, every officer who happens to be presiding over such court, cannot act as a Presiding Officer of the Tribunal, unless a specific notification is issued in this regard. The same is not the situation here, A District Munsif or the Principal District Munsif, as the case may be, are per se conferred with the jurisdiction without the necessity of issuing any special notification in this regard. Therefore, on an election petition being filed in a Court of District Munsif, what exactly happens is that the jurisdiction of the Presiding Officer is enlarged; quite dissimilar to the situation where the officer is constituted as a special authority and does not act in discharge of these functions as a Presiding Officer. Therefore, the consequences as indicated by the Division Bench in Bathula Krishna Brahmam case (supra), viz., that the enlarged jurisdiction, shall attract the incidence of appeal, revision etc., would follow.
Since the provision conferring jurisdiction upon the District Munsif adds finality to the decision rendered in election petition, remedy of appeal will not be available. However, the remedy of revision does not get affected.
17. Persona designata are specialised Tribunals meant to try and decide the cases placed before them. Inasmuch as they are especially constituted for a specific purpose, cases are not transferable from them. Existence of any provision enabling transfer of such matters to other ordinary Courts is, a factor to indicate that such Tribunals are not persona designata. Under Proviso to Rule 2(2) (ii), the concerned District Judge is conferred with the power to order transfer of cases from one Subordinate Judge or District Munsif Court, as the case may be, to another within his jurisdiction. This would go a long way in holding that the Courts constituted under Rule 2(2) (ii) of the Rules are, not persona designata. It needs to be noticed that the transferability is provided as regards the cases before the Subordinate Judge and District Munsiff and the proviso does not cover the designated Tribunals under Rule 2(2)(ii) of the Rules.
18. The learned Counsel for the respondents has relied upon several judgments of the Supreme Court in support of his contention that where a particular state of affair is required to be presumed by legislation, the same has to be carried to a logical extent and the Courts cannot scuttle the same. Reliance is placed upon the judgments reported in Lokmat Newspapers Private Limited v. Shankar Prasad, , State of Maharashtra v. Laljit Rajshi Shah, , etc. There does not exist any controversy as regards these propositions. In view of discussion undertaken above, with reference to the principle as well as the relevant provisions of Rule 2, the presumption under Rule 2(3) is confined to those constituted under Rule 2(2) (ii) and not those referred to in Rule 2(2) (i). It is not the case of the respondents that the Election Tribunal in these cases was specially constituted by the Government in exercise of its jurisdiction under Rule 2(2) (ii) and by its very nomenclature, it is the one constituted under Rule 2(2)(i) of the Rules.
19. The question, however, is when the judicial pronouncements are to the effect that conferment of jurisdiction as regards a particular matter on a Court qua a Court and not by designating the Presiding Officer of that Court either by name or with reference to the office held by him, does not constitute the same a persona designata, can it be treated as such on the basis of a deeming provision.
20. The question assumes greater importance when such presumption has the effect of conferring or taking away the jurisdiction of the Courts, particularly, the Court of record i.e., High Court. In effect, on the basis of such deeming provision, the supervisory revision jurisdiction conferred upon the High Court under Section 115 CPC stands taken away. It may be a matter of solace that even after such exclusion, the High Court can continue to exercise such powers under Article 227 of the Constitution in this case. There may be circumstances where the parties may be left without remedy. Since it has been found in the preceding paragraph that the presumption under Sub-rule (3) of Rule 2 would govern only such Tribunals as are constituted under Rule 2(2) (ii) and the Tribunal, which is dealing with the present cases is the one referred to under Rule 2(2)(i) of the Rules, it is held that this Court has jurisdiction to entertain the CRPs under Article 115 of CPC and the objection raised on behalf of the respondents.
21. Coming to the legality of the orders passed by the Election Tribunal, it is clear that the contentions of the petitioner that she engaged an Advocate as soon as she was served with notices and that she was not informed of the developments in the cases stand unrebutted. The statement of the petitioner that she came to know about her having been set ex parte, etc., only when the recounting was taking place, remained uncontroverted. What appears to have prompted the Election Tribunal more to reject the request of the petitioner appears to be the developments that have taken place subsequent to the orders setting the petitioner ex parte, than the circumstances that preceded it. While considering the application under Order IX CPC, the Court or the Tribunal, as the case may be, has to take into consideration the circumstances that led to the order setting the applicant ex parte and not the developments that have taken place thereafter. Viewed from these angles, viz., negligence or indifference on the part of the Counsel for the petitioner and the consideration by the Court of the developments that have taken place subsequent to the petitioner having been set ex parte, the orders under revision cannot be sustained. The same are accordingly set aside and the applications filed by the petitioner under Order IX Rule 7 CPC stand ordered.
22. The challenge in the writ petitions is to the orders directing recounting. It is true that the Election Tribunal was compelled to pass these orders in view of the fact that the petitioner remained ex parte and there was no effective challenge to the version put forward by the respondents. However, even from a reading of the said orders, it is to be seen that except that the difference between the votes held by the petitioner, on one hand, and the respondents, on the other, was marginal and that the version of the respondents that the counting has taken place after the power failure, no other factors appear to have been taken into account by the Election Tribunal while ordering recounting. The learned Counsel for the petitioner has placed reliance upon the judgments of this Court as well as the Supreme Court in support of his contention that a direction for recounting is an extraordinary measure and can be undertaken only when a strong case is made out by the election petitioner. Though the petitioner is responsible to certain extent for the emergence of the orders challenged in the writ petitions, the absence of petitioner or her non-participation in the proceedings does not relieve the Court of the obligation to satisfy itself as to whether the case, as required under law, was made out for recounting. While reiterating the proposition of law that recounting has to be ordered only when a strong case is made out, this Court does not propose to discuss the facts of the present case with reference to that principle, for the reasons of propriety and the same are left out to be dealt with by the Election Tribunal itself. It is true that pursuant to the orders of the Election Tribunal, recounting is said to have taken place. The fact, however, remains that the final orders were not passed. The sanctity of an election cannot be disturbed except by strictly following the procedure prescribed by law.
23. Accordingly the orders dated 3-9-2002 directing recounting of the votes are set aside and the matters are remitted to the Election Tribunal for fresh consideration. The Election Tribunal shall proceed with the matters afresh, duly giving an opportunity to the petitioner. Since the matter is already delayed, it is directed that the petitioner shall participate in the proceedings regularly and any default committed by her personally or by her Counsel, shall be liable to be taken serious note of by the Election Tribunal. The proceedings shall commence from the stage of cross examination of the witnesses already examined and the proceedings in the Election Tribunal shall be concluded as early as possible and not later than two months from the date of receipt of a copy of this order by the Election Tribunal.
24. The CRPs and the WPs are accordingly allowed. There shall be no order as to costs.