Karnataka High Court
Shaheed Shahazadha vs Sri.K.Narayana Reddy on 17 January, 2019
Equivalent citations: AIR 2019 KARNATAKA 42, AIRONLINE 2019 KAR 217
Author: S.Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JANUARY 2019
BEFORE
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
WRIT PETITION No.10479 OF 2017 (LB-ELE)
Between:
Shaheed Shahazadha,
S/o Shazadha L.S.,
Aged about 29 years,
R/at No.1, Janu Gutta Circle,
Near Karnataka Saw Mill,
Kamsamudra - 563 129,
Bangarapet Taluk,
Kolar District. ... Petitioner
(By Sri S.V. Prakash, Advocate)
And:
1. Sri K. Narayana Reddy,
S/o Late Konda Reddy,
Aged about 52 years,
R/at Kongarahalli Village,
Kamasamudram Hobli,
Bangarapet Taluk,
Kolar District - 563 129.
2. The Returning Officer,
Zilla Panchayath elections,
Kamasamudram Constituency,
Bangarapet Taluk,
Kolar District - 563 129. ... Respondents
(By Sri Badrinath, Advocate for R-1;
Smt.Prathima Honnapura, AGA for R-2)
2
This Writ Petition is filed under Articles 226 & 227 of
the Constitution of India, praying to quash the order dated
20.02.2017 passed by the Court of III Additional District and
Sessions Judge, Kolar (Sitting at KGF) on I.A. No.1
condoning the delay in presenting the election petition in
Election Misc. No.1/2016 produced as Annexure-L to the
writ petition and etc.
This Writ Petition having been heard and reserved on
10.12.2018 and coming on for pronouncement of orders, this
day, the Court, made the following:
ORDER
The petitioner is seeking for issuance a writ of certiorari against the order dated 20.02.2017 passed by the Court of III Additional District & Sessions Judge, Kolar (Sitting at K.G.F.) on I.A. No.1 in Election Miscellaneous No.1/2016.
2. Facts made out as regards the present dispute are produced herein below for better understanding of the issue.
3. On 13.02.2016, the petitioner along with Sri K. Narayana Reddy hereinafter respondent No.1 had contested the election for the membership of Kolar Zilla 3 Panchayat from Kamasamudram Constituency No.17. After the declaration of result on 23.02.2016, the Respondent No.1 has filed an election petition on 21.03.2016 before the learned Senior Civil Judge & Principal JMFC, K.G.F. in Election Misc. No.1/2016 seeking for a declaration that election was null and void, contending on various grounds that the nomination was wrongly accepted.
4. However pursuant to Karnataka Panchayat Raj (Second Amendment) Act, 2015 that came into effect on 25.02.2016 and published vide Gazette Notification dated 23.02.2016, the District Courts were declared to be the designated Courts to entertain the election petitions challenging the election of members of the Zilla Panchayat. In light of the aforesaid amendment, the respondent No.1 preferred an application before the learned Civil Judge, KGF seeking for return of the election petition filed by him so as to enable the 4 petitioner to re-present the petition before the designated Court having jurisdiction. The said application by respondent No.1 to return the petition was allowed by the Court of Senior Civil Judge and Principal J.M.F.C., K.G.F, by order dated 18.08.2016.
5. On 19.08.2016, the election petition and other papers were returned to the first respondent by the Court of Senior Civil Judge and Principal J.M.F.C., K.G.F, pursuant to which on 23.08.2016, the respondent No.1 re-presented the election petition before the Court of learned District and Sessions Judge, Kolar along with I.A.No.1 for condonation of delay in re-presenting the election petition. Though I.A. No.1 was filed seeking condonation of delay in re-presenting the election petition, the petitioner herein had filed his objections not only opposing delay in re-presenting the petition of 4 days, but had also contended that the delay in filing the petition before the District Court being 154 5 days which includes the time spent before the wrong Court could not be condoned. The learned III Additional District & Sessions Judge, Kolar to whom the matter was entrusted, by his order dated 20.02.2017, has allowed I.A.No.1 seeking for condonation of delay, by observing as follows:
"Petitioner is entitled for exclusion of time between 21/03/2016 and 19/08/2016, inclusive of both days, spent by him in prosecuting the petition before the wrong Court i.e. Court of Senior Civil Judge at KGF.
After exclusion of the time noted above, spent by the petitioner in prosecuting the petition before the Court of Senior Civil Judge at KGF, certainly petition filed, by way of representing it, before designated Court, is within 30 days as prescribed under Section 15 of the Karnataka Panchayat Raj Act."
6. The petition's merit as made out in the election petition before the lower Court is not the matter of dispute here, but what is at issue is whether the lower Court committed an error in allowing the 6 application of respondent No.1 for condonation of delay in re-presenting the petition and also condoning the delay in filing the petition in terms of the impugned order.
7. In the impugned order, the lower Court has given its finding on two issues. Firstly, whether the election petition by the petitioner before the designated Court is in time? Secondly, whether petitioner is entitled for exclusion of time during which he has been prosecuting this petition before the Court of Senior Civil Judge, K.G.F. from the date of presentation of petition to the said Court till date its return to him by the said Court?
8. The lower Court has computed the period of limitation from date of declaration of election result (24/02/2016) upto the day limitation ends (24/03/2016) for filing of petition as per Section 15 of the Karnataka Panchayat Raj Act, 1993 (30 days) ['Act' 7 for brevity]. Taking note of the order dated 18.08.2016 directing return of the petition permitting re-presentation before the designated Court and that the files were returned to the petitioner on 19.08.2016 and re-presented on 23.08.2016, the Court has calculated the delay beyond 30 days till re-presentation before the designated Court on 23.08.2016 and accordingly holds that there has been a delay of 151 days, as the petition was filed before the designated Court on 152nd day i.e. beyond the limitation period of 30 days as per Section 15 of the Karnataka Panchayat Raj Act. The lower Court, however, has invoked the provision of Section 14 of the Limitation Act, 1963 to overcome this delay of 152 days. While ordering thus, the lower Court has recorded in its observation at para- 11 while applying Section 14 that -
"11. ...It is held by Hon'ble High Court of Orissa in AIR 1991 Ori 160 (Dasharath Behara vs Katai Devi) that Section.14 of the Limitation Act has to be liberally construed.8
Unless there is sufficient material to come to the finding that plaintiff had acted dishonestly with lack of good faith he cannot be denied the benefit of Section 14..."
Further, the Court has observed that:
"Hon'ble Apex Court in its reported judgment in AIR 2014 SC 83 ONGC Ltd. Vs. Modern Construction and Company, which is also noted in order passed by Senior Civil Judge for return of petition to present it before designated Court, has held as under:-
"12. Section 14 of the Limitation Act provides protection against the bar of limitation to a person bonafidely presenting his case on merit but fails as the Court lacks inherent jurisdiction to try the suit. The protection also applies where the plaintiff brings his suits in the right Court, but is nevertheless prevented from getting a trial on merit because of subsequent development on which a Court may lose jurisdiction because of the 9 amendment of the plaint or an amendment in law or in a case where the defect may be analogous to the defect of jurisdiction...(sic)"
9. However, the question that falls for consideration is as to "whether provisions of the Limitation Act can be invoked when Section 15 of the Act provides for a specific period of within 30 days from, but not earlier than the date of declaration of the result of the election?"
10. Section 15 of the Karnataka Panchayat Raj Act, 1993 reads as follows:
"15. Election Petition.- (1) No election to fill a seat or seats in a Gram Panchayat shall be called in question except by an election petition presented on one or more of the grounds specified in sub-section (1) of the 19 and Section 20 to the Civil Judge (Junior Division) within whose territorial jurisdiction the Panchayat area concerned or the major portion of the Panchayat area concerned is 10 situated by any candidate at such election or by any voter qualified to vote at such election together with a deposit of five hundred rupees as security for costs, within thirty days from, but not earlier than, the date of declaration of the result of the election of the returned candidate at the election, and if the dates of declaration of the results of their election are different, the last of those dates..."
11. It is thus clear from bare reading of the provision that a statutory period of 30 days is provided in the Act. However, there is no provision in the Act that is analogous to Section 14 of the Limitation Act, 1963. This being so, can the provision of Section 14 of the Limitation Act be invoked? The respondent's answer is in the affirmative by relying on the judgments of the Apex Court in the case of Vidyacharan Shukla Vs. Khubchand Baghel and Others reported in AIR 1964 SC 1099, wherein the Apex Court has held that the relevant provisions of Limitation Act, 1963 would be applicable in an election petition by virtue of Section 11 29(2) of the Limitation Act. The question for consideration in the said case revolved around the proper construction of Section 29(2) of the Indian Limitation Act, 1908. Referring to this, the Hon'ble Court in the case of Hukumdev Narain Yadav v. Lalit Narain Mishra, reported in AIR 1974 SC 480 observed:
"13. Secondly, Vidyacharan Shukla's case, (1964) 6 SCR 129 = (AIR 1964 SC 1099) is one which dealt with an appeal under the Act while what we have to consider is whether the Limitation Act is at all applicable to election petitions under the act. Thirdly, Section 29(2) of the new Limitation act does not now give scope for this controversy whether the two limbs of the Section are independent or integrated. No doubt Section 5 would now apply where Section 29(2) is applicable to even applications and petitions, unless they are expressly excluded. Even assuming that the Limitation Act applies to election petitions under the Act, what has to be seen is whether Section 5 is excluded from application to such petitions".12
The Court has further observed -
"17. ......but what we have to see is whether the scheme of the special law, that is, in this case the Act, and the nature of the remedy provided therein are such that the legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If on an examination of the relevant provisions it is clear that the provisions of the Limitation act are necessarily excluded. Then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our view, even in a case where the special law does not exclude the provisions of section 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject matter and scheme of the special law excluded their operation......"
12. Therefore, what remains to be determined is whether the legislature has intended the statute to be 13 an exhaustive code? On this context, it has been observed by the Hon'ble Supreme Court in the case of Suman Devi v. Manisha Devi and Others (Civil Appeal No.8337/2018) at para-9 as follows:-
"9. The Haryana Panchayat Raj Act, 1994 is a complete code for the presentation of election petitions. The statute has mandated that an election petition must be filed within a period of 30 days of the date of the declaration of results. This period cannot be extended. The provision of Section 14 of the Limitation Act, 1963 would clearly stand excluded. The legislature having made a specific provision, any election petition, which fails to comply with the statute, is liable to be dismissed..."
Similarly, in the present case on hand, taking note of Section 15 of the Act, it can be said that the Karnataka Panchayat Raj Act, 1993 is an exhaustive code governing the subject matter of the present dispute.
13. This Court in the case of Smt. Ishrath Banu v. The Returning Officer, also The Assistant 14 Commissioner, Kollegala Sub-Division And Others reported in ILR 2018 KAR 4437 has also held that Sections 14 and 5 of the Limitation Act as not being applicable to the proceedings under the Act as observed in para-29 of the judgment.
14. The Karnataka Panchayat Raj Act has no provision analogous to Section 14 of the Limitation Act. The contention of respondent is that in the present case, in the absence of a provision such as Section 14 of the Limitation Act, the corresponding provision could be borrowed. Whether in case of any omission, the corresponding provision can be borrowed is a question as regards which Hon'ble Supreme Court has observed in Hukumdev Narain Yadav's case (supra) that -
"20. It is also significant that delay in the presentation of the election petition under the repealed Section 81 could be condoned by the Election Commission in its discretion under the proviso to the repealed Section.85 of the Act. But there was nothing in Section 15 85 which permitted the Election Commission to condone the non-compliance with the provisions of Section 117 of the Act. When the Act was amended and the jurisdiction was given to the High Court to entertain and try election petitions, a provision similar to the proviso for condoning delay was not enacted. This omission definitely expresses Parliament's intention not to confer the power to condone any delay in the presentation of the petition. The whole object of the amendment in 1966 was to provide a procedure for a more expeditious method of disposal of election disputes, which experience has shown had become dilatory under the former procedure where election trials were not concluded even after five years when the next elections were held, notwithstanding the fact that every petition was enjoined to be tried as expeditiously as possible and endeavor was required to be made to conclude the trial within six months from the date on which the election petition was presented to the High Court for trial".16
15. In Charan Lal Sahu v. Nandkishore Bhatt, reported in (1973) 2 SCC 530, the Hon'ble Apex Court has held that there is no common law right to challenge an election, since it is purely a matter of regulation by the terms of the statute. Since there is no statutory right analogous to Section 14 of the Limitation act, 1963, there remains no right for the respondent to seek for condonation of delay of the days spent in wrong forum to be condoned.
16. The right being statutory, the terms of the statute must be complied with. Therefore, there cannot be any borrowing of any provision from any other source when the statute is clear and unambiguous with respect to the aspect in question. The only other contention of the respondent being reliance of Section 24A of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 ('the Act' for brevity) is to be rejected, as the election petition was filed on 21.03.2016, while the amendment 17 as Section 24A of the Act was introduced much earlier on 31.12.2015 and was brought into force on 25.02.2016. Therefore, the contentions of the respondents are devoid of merits.
17. Accordingly, in view of the above discussion, the petition is allowed and the order dated 20.02.2017 is set aside. Consequently, Election Mis.No.1/2016 is dismissed.
Sd/-
JUDGE RS/VGR ct:mhp