Karnataka High Court

Smt. Padmavati Srinivas W/O ... vs Smt. B.Pushpa W/O Narayan @ Dish ... on 4 January, 2022

Bench: E.S.Indiresh

                         1




         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

     DATED THIS THE 4TH DAY OF JANUARY, 2022

                      BEFORE

       THE HON'BLE MR.JUSTICE E.S.INDIRESH


     WRIT PETITION No.204512 OF 2015 (GM-EC)


BETWEEN:

SMT. PADMAVATI SRINIVAS
W/O JINDAPPA
AGE: 39 YEARS,
OCC : HOUSE WIFE & CMC COUNCILLOR
R/O : H.NO.8-11-20
MADDI PET,
RAICHUR-584103

                                     ... PETITIONER
(BY SRI MAHANTESH PATIL, ADVOCATE)

AND:

1.     SMT. B.PUSHPA
       W/O NARAYAN @ DISH NARAYAN
       OCC : SOCIAL WORKER,
       R/O : H.NO.9-9-14
       MADDI PET,
       RAICHUR-584102.

2.     THE RETURNING OFFICER
       (ASSISTNAT COMMISSIONER)
       LOCAL BODY ELECTIONS FOR
                               2




     CITY MUNICIPAL COUNCIL
     RAICHUR-584101.
                                            ... RESPONDENTS

(BY SRI GANESH S.KALBURGI, ADVOCATE FOR R1
    SRI VIRANAGOUDA BIRADAR, AGA FOR R2 )


     THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING
TO ISSUE A WRIT IN THE NATURE OF CERTIORARI TO
QUASH THE IMPUGNED ORDER DATED 31.05.2014 ON IA
NO. I IN ELECTION PETITION NO. 4 OF 2013, PASSED BY
THE PRINCIPAL SENIOR          CIVIL JUDGE AND CJM            AT
RAICHUR, VIDE ANNEXURE-D AND ETC.,


     THIS PETITION COMING ON FOR FINAL HEARING
GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-

                          ORDER

This writ petition is filed by the petitioner

challenging the order dated 31.05.2014 passed on IA.I in

Election Petition No.4/2013 on the file of the Principal

Senior Civil Judge and CJM, Raichur, vide Annexure-D.

2. The petitioner and respondent No.1 have

contested the election for the post of Councilor of City

Municipal Council, Raichur, from Ward No.22 (Maddi Pet),

which was reserved for women category. The election was

held on 07.03.2013 and counting of votes was started on

11.03.2013 at Raichur and in the said election, the

respondent No.1 lost in the fray. Being aggrieved by the

order passed by 2ndrespondent herein, holding that the

petitioner herein is the successful candidate in the said

election, 1st respondent filed Election Petition No.4/2013

before the trial Court. Since, there is delay of 77 days in

filing the Election Petition, 1st respondent filed an

application-IA.I under Section 5 of Limitation Act and

contended that she was pregnant and was suffering from

abortion and as per the advice of the doctor, she was

taking bed rest, and as such, there was delay in filing the

Election Petition. In this regard, the petitioner has filed

objections, contending that the application filed under

Section 5 of the Limitation Act is not maintainable insofar

as Election Petition is concerned, and accordingly, sought

for rejection of the application. In order to fortify their

case, respondent No.1 has adduced evidence as PW1 and

produced 5 documents and same were marked as Exs.P1

to 5, however, no evidence was adduced by the

respondent/petitioner herein.

3. The competent Court, after considering

averments made in the application-IA.I, by its order dated

31.05.2014, allowed IA.I and consequently, condoned the

delay of 77 days in filing the Election Petition. Being

aggrieved by the same, respondent No.1 in Election

Petition No.4/2013 has presented this writ petition.

4. I have heard Sri Mahantesh Patil, learned

counsel for the petitioner and Sri Ganesh S.Kalburgi,

learned counsel for respondent No.1 and Sri Viranagouda

Biradar, learned AGA for respondent No.2.

5. Sri. Mahantesh Patil, learned counsel for

the petitioner contended that the impugned order

dated 31.05.2014 passed by the trial Court on IA.I is

contrary to law as the Limitation Act is not applicable

to the election proceedings. In this connection he

places reliance on the judgment of the Apex Court in

the case of Anwari Basavaraj Patil and Ors. v.

Siddaramaiah and Ors., reported in AIR 1994 SC 512.

Further, learned counsel appearing for the petitioner,

while drawing the attention of the Court to Section 29

(2) of the Limitation Act, contended that there is bar

to accept the application under Section 5 of the

Limitation Act.

6. Per contra, learned counsel for respondent No.1

sought to justify the order passed by the trial Court and

the learned AGA reiterates the submission made by

learned counsel for respondent No.1.

7. Having heard the learned counsel for the parties,

the short question involved in this writ petition is whether

Section 5 of the Limitation Act is applicable to the election

petition filed under the provisions of Karnataka Gram

Swaraj and Panchayat Raj Act, 1993?

8. The Hon'ble Apex Court in the case of Anwari

Basavarajappa Patil, stated supra, held that Section 29

(2) have to be read along with the other provision of

Limitation Act, in respect of applicability to the election

proceedings. Paragraphs 6 and 7 of the judgment reads as

under:

" 6. There is no provision in the Representation of the People Act, 1951 making all or any of the provisions of the Limitation Act applicable to the proceedings under the Act. The Appellant, however, relies upon Section 29(2) of the Limitation Act. According to him by virtue of the said provision, all the provisions contained in Section 4 to 24 (both inclusive) apply to the proceedings under the Act including the recrimination notice under Section 97. Sub- section (2) of Section 29, which alone is relied upon before under Section reads:

Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Section 4 to 24(inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.

7. In H.N. Yadav v. L.N Misra (1974) 3 SCR 31, this Court held that the words "expressly excluded" occurring in Section 29(2) of the

Limitation Act do not mean that there must necessarily be express reference in the special or local law to the specific provisions of the Limitation Act, the operation of which is sought to be excluded. It was held that if on an examination of the relevant provisions of the Special Act, it is clear that the provisions of the Limitation Act are necessarily excluded then the benefits conferred by the Limitation Act cannot be called in aid to supplement the provisions of the Special Act. That too was a case arising under the Representation of the People Act and the question was whether Section 5 of the Limitation Act is applicable to the filing of the election petition. The test to determine whether the provisions of the Limitation Act applied to proceedings under Representation of the People Act by virtue of Section 29(2) was stated in the following words:

The applicability of these provisions has, therefore, to be judged not from the terms of the Limitation Act but by the provisions of the Act relating to the filing of election petitions and their trial to ascertain whether it is a complete code in itself which does not admit of the application of any of the provisions of the Limitation Act mentioned in Section 29(2) of that Act."

9. The Hon'ble Apex Court at paragraph 8 of the

judgment concludes that the Representation of People Act

is a self contained code and accordingly concluded that

"the provisions of Section 5 of the Limitation Act does not

govern the filing of the election petitions or their trial".

10. In order to ascertain whether the Limitation

Act is applicable to the Karnataka Gram Swaraj and

Panchayat Raj Act, 1993 (hereinafter referred to as 'the

Act'), it is relevant to extract Section 15 of the Act.

"15. Election petition.- (1) No election to fill a seat or seats in a Grama 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 section 19 and section 20 to the Designated Court within whose territorial jurisdiction the panchayat area concerned or the major portion of the panchayat area concerned is situate 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 or if there are more than one returned candidate at the election, and if the dates of declaration of the results of the their election are different, the last of those dates.

(2) A petitioner shall join as respondent to his petition,-

(a) where the petitioner, in addition to claiming a declaration that the election of all or of any of the returned candidates is void , claims a further declaration that he himself or any other candidate has been duly elected all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and

(b) any other candidate against whom allegation of any corrupt practice are made in the petition;

(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be true copy of the petition.

Explanation.- The expression "returned candidate" means a candidate who has been declared as duly elected."

(emphasis supplied)

11. Sections 19 and 20 of the Act provides for

nullifying the declaration of result. Perusal of the Section

15 of the Act would indicate that the Act expressly

provides that the election petition shall be filed within 30

days from the date of declaration of the result. In this

connection, Apex Court in the case of Suman Devi Vs.

Manisha Devi and Ors., reported in (2018) 9 SCC 808,

wherein the question before the Apex Court was relating to

the provisions contained under the Haryana Panchayati Raj

Act, 1994. Paragraph-8, 9 and 10 of the said judgment

reads as under:

"8. In Charan Lal Sahu v. Nandkishore Bhatt, a two-Judge Bench held that there is no common law right to challenge an election since it is purely a matter of regulation by the terms of statute. The right being statutory, the terms of the statute must be complied with.

9. A three-Judge Bench of this Court in Lachhman Das Arora v. Ganeshi Lal, construed the provisions of Section 8(1) of the Representation of the People Act, 1951, which prescribes a period of 45 days to file an election petition. Dr A.S.Anand, C.J. speaking for the Court, held thus: (SCC pp.535-36, para7)

"7. On its plain reading, Section 81(1) lays down that an election petition calling in question any election may be presented on one or more of the grounds specified in sub- section (1) of Section 100 and Section 101of the Act to the High Court by any candidate at such election or by an elector within forty-five days from, but earlier than, the date of election of the returned candidate, or if there are more than one returned candidates at the election and the dates of their election are different, the later of those two dates. The Act is a special code providing a period of limitation for filing of an election petition. No period for filing of an election petition is prescribed under Indian Limitation Act. The Act insofar as it relates to presentation and trial of election disputes is a complete code and a special law. The scheme of the special law shows that the provisions of Section 4 to 24 of the Indian Limitation Act do not apply. If an election petition is not filed within the prescribed period of forty-five days, Section

86(1) of the Act, which provides that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117, is straightway attracted."

(emphasis in original)

10. The Haryana Panchayati 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. The High Court has failed to notice both the binding judgments of this Court and its own precedents on the subjects, to which we have referred. The first respondent filed an election petition in the first instance to which there was an objection to maintainability under Order 7 Rule 11 Code of Civil Procedure. Confronted with the objection under Order 7 Rule 11, the first respondent obviated a decision thereon by withdrawing the election petition. The grant of liberty to file a fresh election petition cannot obviate the bar of limitation. The fresh election petition filed by the first respondent was beyond the statutory period of 30 days and was hence liable to be rejected."

12. Following the declaration of law by the Apex

Court referred to above, I am of the view that allowing the

application-IA.I filed under Section 5 of Limitation Act by

the trial Court is contrary to the law declared by the

Hon'ble Apex Court. In that view of the matter, impugned

order passed by the trial Court is contrary to the law

declared by the Hon'ble Apex Court in the decisions

referred to above. I am of the view that, there is no

specific provision in the Act, which provides for

condonation of delay in filing the Election Petition. In the

result, following order is passed: