Election Commission Of India vs Shri Ravishvappa Padasalagi
2022 Latest Caselaw 11201 Kant

                         1

  IN THE HIGH COURT OF KARNATAKA, DHARWAD
                                                         R
       DATED THIS THE 29TH DAY OF JULY, 2022

                     PRESENT

    THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

                        AND

   THE HON'BLE MR. JUSTICE P. KRISHNA BHAT

             OSA No.100001 OF 2022

BETWEEN:

ELECTION COMMISSION OF INDIA,
NIRVACHANASADAN, ASHOK ROAD,
NEW DELHI - 110 001.
REPRESENTED BY ITS SECRETARY.
                                            ...APPELLANT
(BY SRI. SHARATH DODWAD, ADVOCATE FOR
    SRI.MRUTUNJAY HALLIKERI, ADVOCATE)

AND:

1. SHRI.RAVISHIVAPPA PADASALAGI @ SAVADI,
   S/O SHIVAPPAPADASALAGI,
   AGED ABOUT 42 YEARS,
   OCC SOFTWARE ENGINEER/SOCIAL WORKER,
   INDEPENDENT CANDIDATE FOR ATHANI
   LEGISLATIVE ASSEMBLY CONSITUENCY,
   R/O NO.196, 5TH MAIN, 2ND CROSS,
   M.S.PALYA ROAD, SINGAPURA PARADISE,
   VIDYARANYAPURA POST,
   BENGALURU 560 097.

2. MAHESH
   S/O IRANGAOUDAKUMATALLI,
   AGED ABOUT 58 YEARS,
   OCC BUSINESS AND FARMER,
   BHARATIYA JANATA PARTY,
   CANDIDATE FOR ATHANI
   LEGISLATIVE ASSEMBLY CONSTITUENCY,
   R/O NO.4362, VIKRAMPURA, ATHANI,
   TQ ATHANI DIST: BELAGAVI - 591 304.
                          2

3. SRI.GAJANAN,
   S/O BALACHANDRA MANGASULI,
   AGED ABOUT 50 YEARS,
   OCC AGRICULTURE AND BUSINESS,
   INDIAN NATIONAL CONGRESS
   PARTY CANDIDATE FOR ATHANI,
   LEGISLATIVE ASSEMBLY CONSTITUENCY,
   R/O HOUSE NO.3413, MANGASULI GALLI,
   NEAR SBI ATHANI, TQ ATHANI,
   DISTRICT BELAGAVI - 591 304.

4. DR.NAGANATH V YADGIR,
   S/O VENKATRAO,
   AGED ABOUT 36 YEARS,
   OCC: DOCTOR,
   UTTAM PRAJAKEEYA PARTY,
   CANDIDATE FOR ATHANI,
   LEGISLATIVE ASSEMBLY CONSTITUENCY,
   R/O H.NO.10-816, MELINKERI,
   BRAHMAPURA, KALABURAGI - 585 103.

5. VINAYAK,
   PARAYYAMATHAPATI,
   AGED ABOUT 27 YEARS,
   OCC: AGRICULTURAL LABOUR,
   KARNATAKA JANTHA PAKSHA,
   CANDIDATE FOR ATHANI,
   LEGISLATIVE ASSEMBLY CONSTITUENCY,
   R/O AT POST SAPTASAGAR TQ
   ATHANI, DIST: BELAGAVI - 591 304.

6. IMRAN S/O MUKTAR AHMED PATEL
   @MUKTAR PATEL,
   AGED ABOUT 32 YEARS,
   OCC: BUSINESS,
   INDEPENDENT CANDIDATE FOR ATHANI,
   STATE LEGISLATIVE ASSEMBLY CONSTITUENCY,
   R/O H.NO.3005/A, HIPPARAGI GALLI,
   ATHANI, TQ ATHANI DISTRICT
   BELAGAVI - 591 304.

7. RAJU PARASHURAM DAWARI,
   AGED ABOUT 44 YEARS,
   OCC: PRIEST,
   INDEPENDENT CANDIDATE FOR ATHANI,
   STATE LEGISLATIVE ASSEMBLY CONSTITUENCY,
   R/O AT POST DAVARI GALLI, ATHANI TQ,
   ATHANI DISTRICT, BELAGAVI - 591 304.
                                3

8. SHRISHAIL
   S/O TUKKAPPAHALLADAMAL @
   HALLADAMALLI,
   AGED ABOUT 40 YEARS,
   OCC AGRICULTURE AND BUSINESS,
   INDEPENDENT CANDIDATE FOR ATHANI,
   STATE LEGISLATIVE ASSEMBLY CONSTITUENCY,
   R/O GAVISIDDANA MADDI, ATHANI TQ,
   ATHANI DISTRICT BELAGAVI - 591 304.
                                       ...RESPONDENTS

(BY SRI. BALAKRISHNA SHASTRY, ADVOCATE AND
    SRI.CHETAN MUNNOLI, ADVOCATE FOR R2;
    SRI.SHIVARAJ BELLAKKI, ADVOCATE FOR R1;
        R3 & R7 ARE SERVED)

     THIS ORIGINAL SIDE APPEAL IS FILED UNDER
SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961,
PRAYING TO QUASH THE IMPUGNED PORTION OF THE
ORDER DATED 17.06.2022 PASSED BY THE LEARNED SINGLE
JUDGE OF THIS HONBLE HIGH COURT, DHARWAD BENCH IN
ELECTION   PETITION   NO.100001/2020,   IN  ISSUING
SUMMONS TO EX-CHIEF ELECTION COMMISSIONER OF
INDIA.

      THIS ORIGINAL SIDE APPEAL HAVING BEEN HEARD
AND RESERVED FOR ORDERS THIS DAY, KRISHNA S. DIXIT
J., DELIVERED THE FOLLOWING:-

                            ORDER

This intra-court appeal seeks to lay a challenge to the

order dated 17.06.2022 made in Election Petition

No.100001/2020 pending on the file of a learned single Judge

of this Court whereby subpoena has been issued to one Sri

Sunil Arora, the Ex-Chief Election Commissioner of India. The

operative portion of the order reads as under:

"Issue summons to Shri Sunil Arora, the Ex- Chief Election Commissioner of India, as prayed for.

A copy of this order shall be furnished to Shri S.R.Dodawad, learned Standing Counsel for

the Election Commission to co-ordinate in service of summons and appearance of the witness.

Shri.S.R.Dodawad, learned counsel submits that personal appearance of the witness causes hardship to him and avoidable expenses. In that event he can make his appearance virtually and depose.

The registry may also serve the summons through e-mail."

2. This Court had directed emergent notice to the

respondents vide order dated 22.06.2022 and had issued stay

of subpoena in terms of subject application in I.A. No.2.

After service of notice the contesting respondents have

entered appearance through their counsel and opposed this

appeal making submission in justification of the impugned

order. Other respondents have chosen to remain

unrepresented, despite service of notice.

3. BRIEF FACTS OF THE CASE:

(a) The general elections to constitute 15th Karnataka

Legislative Assembly were held in May 2018. However the

Speaker had disqualified 17 members of Legislative Assembly

vide Orders dated 25.07.2019 & 28.07.2019. This was put in

challenge before the Hon'ble Supreme Court in W.P. (C)

No.922/2019 & connected cases. To fill the vacancies

accruing because of aforesaid disqualification, the appellant

ECI vide Press Note dated 21.09.2019 had announced the

schedule for Bye-Elections in respect of 15 Constituencies.

This was followed by the Election Notification dated

23.09.2019.

(b) The Apex Court whilst examining the legality of the

Disqualification Orders is said to have orally observed that the

postponement of the Bye-Elections was desirable till after the

final orders are passed on the pending challenge. This was

on 26.09.2019. On 27.09.2019, the extension Notification

was issued by the appellant-ECI by rescheduling the time

lines prescribed under the aforesaid Election Notification

dated 23.09.2019. The Apex Court vide Order dated

13.11.2019 dismissed W.P.No.992/2019 & connected matters

and thereby upheld Speaker's Orders that had disqualified 17

MLAs, however curtailing the duration of their disqualification.

(c) The appellant-ECI conducted the elections on

09.12.2019 in terms of amended notification dated

27.09.2019. The 2nd respondent herein was elected to the

Legislative Assembly from 03-Athani Assembly Constituency.

His election has been challenged by the 1st respondent in the

subject Election Petition. One of the issues framed in the E.P.

relates to power of the ECI to postpone the elections, once

the same were notified.

(d) In order to prove the invalidity of postponement of

elections in terms of additional issue framed in the Election

Petition, an Interlocutory Application was moved before the

Election Court for summoning 'Sri Sunil Arora Ex-Chief

Election Commissioner of India' as a witness 'to depose with

regard to the circumstances and sufficient cause under which

the notification dated 27.09.2019 was issued for extending

time for filing the nomination...'. The said application having

been favoured by the impugned order, the appellant-ECI is

before this Court, with a request for leave to prosecute the

Appeal.

4. Having heard the learned counsel for the parties

and having perused the appeal papers, we are inclined to

grant indulgence in the matter for the following reasons:

A. AS TO MAINTAINABILITY OF INTRA-COURT APPEAL:

(i) The entire election process commencing from the

issuance of the notification calling upon a constituency to

elect a member or members right up to the final resolution of

the dispute, if any, concerning the election is regulated by the

Representation of the People Act, 1951, different stages of

the process being dealt with by different provisions of the Act.

Concepts familiar to common law and equity must remain

strangers to Election Law unless statutorily embodied. An

election petition is a strict statutory proceeding. The legal

position emerging from a catena of decisions of the Apex

Court is that outside the statutory provisions, there is no right

to dispute an election.

(ii) Section 80 of the 1951 Act provides that an

election inter alia to the State Legislature can be called in

question only by filing an election petition in accordance with

its provisions. Such a petition has to be presented to the

High Court on one or more of the grounds specified in sub-

section (1) of Sec.100 & Sec.101 of the said Act within 45

days reckoned from the date of election of the Returned

Candidate. In HARI SHANKER JAIN vs. SONIA GANDHI,

(2001) 8 SCC 233, the Apex Court observed that the

designated Election Judge functions as a High Court and not

as a Special Tribunal or as a Special Court or as persona

designata. When power to hear a dispute under a statute is

conferred on the High Court then the dispute has to be

determined according to rules of practice and procedure of

this Court and in accordance with the provisions of the

Charter under which that Court is constituted and which

confers on it power in respect to the method and manner of

exercising that jurisdiction vide NATIONAL SEWING THREAD

CO. LTD. Vs. JAMES CHADWAICK AND BROS LTD., AIR 1953

SC 357.

(iii) The vehement contention of respondents that no

intra-court appeal lies in the absence of such a right being

granted by the RP Act 1951, is bit difficult to countenance.

Reason is not far to seek: Section 4 of the Karnataka High

Court Act, 1961 which provides for intra-court appeal has the

following text:

"4. Appeals from decisions of a single Judge of the High Court - An appeal from a judgment, decree order or sentence passed by a single Judge in the exercise of the original jurisdiction of the High Court under this Act or under any law for the time being in force, shall lie to and be heard by a Bench consisting of two other Judges of the High Court".

The impugned order made by the learned single judge directs

subpoena to the Ex-Chief Election Commissioner. Apparently,

it is made in exercise of civil court's power availing under the

provisions of CPC 1908, for summoning of witnesses. Section

87(1) of the 1951 Act provides that every election petition

shall be tried as nearly as may be in accordance with the

procedure applicable under the CPC 1908 to the trial of suits.

Sub-section 2 of Section 87 makes the provisions of Indian

Evidence Act 1872 applicable in all aspects. The proviso to

Section 87(1) gives discretion to the Court trying an election

dispute to refuse (for reasons to be recorded) to examine any

witness, if his evidence is not material for the decision of the

petition. Section 116A of the 1951 Act which provides for

appeal to the Apex Court apparently has parties to the

Election Petition in its contemplation and the appellant herein

admittedly is not a party. Therefore, the right availing under

Section 4 of 1961 Act is not diluted by the appeal provision in

1951 Act the non-obstinate clause enacted therein

notwithstanding. It hardly needs to be stated that this

remedy of intra-court appeal does not avail to the parties to

the Election Petition.

(iv) The person subpoenaed has no discretion to

disobey the requisition. Whether subpoena of the kind falls

within the term 'order' employed in Section 4 of the 1961 Act,

needs to be examined, from that view of the matter. In

Ramanatha Aiyar's Law Lexicon II Edition, 2010 reprint Lexis

Nexis at page 1373 it is printed as under:

"The term 'order' is general and is comprehensive enough to include all kinds of orders including a formal order... The term 'order' would indicate some expression of opinion which is to be carried out or enforced. It is the conclusion of a body... The Terms 'Judgment' 'Decree', 'Decision,' and 'order' are more or less cognate as applied in legal proceedings, and closely allied in meaning. The term 'order is not infrequently used in a more restricted sense than the word 'judgment'. It may be defined to be a command, direction, or decision of the Court of Judge on some immediate point or issue in the case, but without finally disposing of the main issue or issues in the case. Then it is merely interlocutory. But the term is sometimes given a more extensive signification, even in legal controversies..."

In matters like this, the word 'order' employed in the above

provision has to be liberally construed consistent with the

requirement of doing justice to the aggrieved. An argument

to the contrary, would defeat the very object of such a

provision the same proving to be only a dead letter of law in

black print and therefore, cannot be countenanced.

B. AS TO LEAVE TO APPEAL:

(i) The appellant happens to be the Election

Commission of India which is a creature of the Constitution

vide Article 324. The Apex Court in JYOTI BASU vs. DEBI

GOSHAL (1982) 1 SCC 691 has held that the election disputes

are not cases at common law or equity and the proceedings

are conducted in a special jurisdiction created by statute and

therefore, persons other than who are contemplated under

Section 82 of the 1951 Act cannot be joined as parties. There

is a catena of decisions wherein arraying of the Election

Commission as a party to the election disputes is deprecated

by the Apex Court. Therefore, the Commission has justifiably

sought for leave to file this appeal, it being not a party to the

E.P. Denial of leave would cause a great injustice to the

Commission and enormous hardship to the Ex-Chief Election

Commissioner i.e., against whom subpoena has been issued.

Therefore, leave needs to be and accordingly, is granted in

terms of subject application accompanying the appeal.

C. AS TO WHETHER CHIEF ELECTION COMMISSIONER OR EX-CHIEF ELECTION COMMISSIONER CAN BE CALLED AS WITNESS:

(i) As already mentioned above, an election petition

is tried by the High Courts substantially in accordance with

the provisions of CPC, 1908 vide Section 87(1) and the

provisions of the Indian Evidence Act, 1872 are deemed to

apply to these proceedings vide 87(2) of the 1951 Act. After

pleadings are completed, issues have been framed in the EP;

additional issue relating to validity of postponement of the

election is also there. Section 5 of the 1872 Act deals with

the right to produce evidence, in any suit or proceedings,

relating to the existence of non-existence of every fact in

issue, and also to prove such other facts which may be

declared relevant to the fact in issue, by virtue of the

provisions contained in sections 6 to 55. The object of this

section is to restrict the investigation made by Courts within

the bounds prescribed by general convenience. Of no fact

can evidence be given unless it be either a fact in issue or one

declared under other sections. Thus, evidence of all collateral

facts, which are incapable of affording any reasonable

presumption as to the principal matters in dispute, is

precluded from production to save public time.

(ii) The subject application for subpoena has been

moved by the contesting respondent herein in the light of

additional issue. What were the facts & circumstances that

lead to issuance of the notification postponing the elections

cannot be the subject matter of oral evidence of the

Commissioners of the Election Commission of India which is a

multi-member body, and which takes institutional decisions

inter alia under the provisions of the Constitution, the RP Act,

1950 & RP Act, 1951. Its decisions are not the decisions of

the individuals. What the Apex Court observed in T.N.SESHAN

vs. UNION OF INDIA, (1995) 4 SCC 611, supports this view:

"By clause (1) of Article 324, the Constitution-makers entrusted the task of conducting all elections in the country to a Commission referred to as the Election Commission and not to an individual. It may be that if it is a single-member body the decisions may have to be taken by the CEC but still they will be the decisions of the Election Commission. They will go down as precedents of the Election Commission and not the individual. It would be wrong to project the individual and eclipse the Election Commission. Nobody can be above the institution which he is supposed to serve. He is merely the creature of the institution, he can exist only if the institution exists... The Constitution- makers preferred to remain silent as to the manner in which the Election Commission will transact its business, presumably because they thought it unnecessary and perhaps even improper to provide for the same having regard to the level of personnel it had in mind to man the Commission. They must have depended on the sagacity and wisdom of the CEC and his colleagues. By virtue of sub-sections (1) and (2) of Section 10 the Commission will be able to take decisions with one voice. But just in case that hope is belied the rule of majority must come into play."

(iii) Ordinarily, in civilized jurisdictions functionaries of

the constitutional bodies are not subjected to subpoena. Since

they have to act and take significant decisions in the

discharge of duties fearlessly. Otherwise, they run the fear of

being called as witnesses and that may push them to

defensive mode affecting public interest. The circumstances

that resulted into issuance of the subject notification has to

be gathered from the official records of the Commission. A

very strong case has to be made out for summoning the

members or ex-members of constitutional bodies. The reason

as to why the Election Commission of India cannot be made a

party to the election petitions gives sufficient indication as to

why its members or ex-members cannot be summoned as

witnesses. As already mentioned above, the proviso to

Section 87 of the 1951 Act has vested discretion in the High

Court hearing the election petitions in this respect. A perusal

of the records drives us to a conclusion that there is

absolutely no justification for the contesting respondent

herein for seeking subpoena against the Ex-Chief Election

Commissioner.

(iv) It hardly needs to be stated that subpoening an

official as witness is one thing and summoning of official

records, is another. In the former, the exercise of power is

circumscribed depending upon the constitutional status and

function of the person concerned and in the latter, it is not. It

is all a matter of discretion and prudence of the Court. Of

course, any discretion has to be exercised in accordance with

the rules of reason & justice, said Lord Halsbury more than a

century ago vide SHARP v. WAKEFIELD (1891 AC 173).

Constitutional functionaries or ex-functionaries cannot be

summoned as witnesses just for askance. The contention

that these functionaries do not figure in the "Exemption

Class" earmarked by CPC is too feeble a ground for issuing

subpoena to them. Ordinarily the provisions of law that

carve out an "Exempted Class of Subpoena" do not intend to

make such class exhaustive in the sense that all those de

hors the class can be summoned as witness at askance. In

matters like these a host of factors figure for consideration.

(v) The above having been said, we hasten to add

that it is always open to parties to the election petition to

seek an order at the hands of learned judge trying the

election dispute to summon the records or copies thereof

even from the Election Commission of India, by making out a

case therefor.

In the above circumstances, this appeal succeeds; the

impugned order of subpoena qua the Ex-Chief Election

Commissioner, i.e., Sri Sunil Arora is set at naught, costs

having been made easy.

Sd/-

JUDGE

Sd/-

JUDGE

Snb/