IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF AUGUST, 2019 PRESENT THE HON’BLE MR. ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ WRIT APPEAL NO. 628/2019 (LB-ELE) BETWEEN:
SRI K. NARAYANA REDDY S/O LATE KONDA REDDY AGED ABOUT 54 YEARS R/AT KONGARAHALLI VILLAGE KAMASAMUDRAM HOBLI BANGARAPET TALUK KOLAR DISTRICT-563129 ... APPELLANT (BY SRI VARUN J PATIL, ADVOCATE) AND 1.SHAHEED SHAHAZADHA S/O SHAZADHA L S AGED ABOUT 31 YEARS R/AT NO.1, JANUGUTTA CIRCLE NEAR KARNATAKA SAW MILL KAMASAMUDRA-563129 BANGARAPET TALUK KOLAR DISTRICT 2.THE RETURNING OFFICER ZILLA PANCHAYATH ELECTIONS KAMASAMUDRAM CONSTITUENCY BANGARAPET TALUK KOLAR DISTIRCT-563129 ... RESPONDENTS (BY SRI I THARANATH POOJARI, AGA) THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE ORDER DATED 17/01/2019 IN WRIT PETITION NO.10479/2017 PASSED BY THE LEARNED SINGLE JUDGE BY DISMISSING THE WRIT PETITION FILED BY RESPONDENT NO.1.
THIS WRIT APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel appearing for the appellant.
2. The appellant has impugned the judgment and order dated 17th January 2019 passed by the learned Single Judge. The appellant, the first respondent and two others contested the election to the membership of Kolar Zilla Panchayath held in accordance with the provisions of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (for short ‘the said Act of 1993’). The result of the election was declared on 23rd February 2016 and the first respondent was duly declared as elected. On 21st March 2016, the appellant filed an election petition before the learned Principal Senior Civil Judge, KGF, by invoking sub-section (1) of Section 15 of the said Act of 1993. On 22nd July 2016, the first respondent made an application before the learned Judge by contending that the Court of the Principal Senior Civil Judge had no jurisdiction in view of the amendment made to sub-section (1) of Section 15 of the said Act of 1993 by the Act No.44 of 2015 which was brought into force with effect from 25th February 2016. On 18th August 2016, an order was made by the learned Principal Senior Civil Judge returning the election petition to the appellant for presentation to the Designated Court having jurisdiction.
3. By the Act No.44 of 2015, sub-section (1) of Section 15 was amended. The amendment was that the forum for filing the election petition was provided as the Designated Court in place of the Court of Civil Judge (Junior Division). After taking back the petition on 19th August 2016, the appellant presented the same before the Designated Court on 23rd August 2019. The appellant invoked Section 14 of the Limitation Act, 1963 (for short ‘the Limitation Act’) for getting over the prescribed period of limitation. By an order dated 20th February 2017, the Designated Court granted the benefit of Section 14 of the Limitation Act to the appellant and excluded the time spent in the wrong Court from 21st March 2016 till 19th August 2016. Being aggrieved by the said order, the first respondent filed a writ petition which has been allowed by the learned Single Judge on the ground that Section 14 of the Limitation Act is not applicable to the election petition under sub-section (1) of Section 15 of the said Act of 1993.
4. The submission of the learned counsel appearing for the appellant is that the amendment made to sub-section (1) of Section 15 was notified in the Gazette on 23rd February 2016. When the election petition was filed by the appellant on 21st March 2016, he was not aware that the forum for filing the election petition was changed to the Designated Court. He submitted that after the election petition was returned, without any loss of time, the election petition was presented to the Designated Court. He further submitted that considering the peculiar facts of the case, the benefit of Section 14 of the Limitation Act ought to have been made available to the appellant inasmuch as, at no stage, he has indulged in any delay. He also submitted that as the appellant was under a bona fide belief that the election petition will lie before the Court of the learned Principal Senior Civil Judge that he presented the petition before the learned Judge.
5. We have carefully considered the submissions. We are dealing with the filing of an election petition for unseating a democratically elected candidate. Sub-section (1) of Section 15 of the said Act of 1993 provides for the period of limitation of 30 days from the date of declaration of result of the election of the returned candidate. Prior to 23rd February 2016, the forum for presenting an election petition was the Civil Judge (Junior Division) which was replaced by the Designated Court from 23rd February 2016. Before the Court of the learned Principal Senior Civil Judge, the election petition was filed within the stipulated period of 30 days. After returning of the election petition, it was filed before the Designated Court long after the expiry of the period of 30 days from the date of declaration of the election result.
6. In the case of SUMAN DEVI vs MANISHA DEVI AND OTHERS1, a similar provision of sub-section (1) of Section 176 of the Haryana Panchayati Raj Act, 1994 came up for consideration of the Apex Court. In paragraph 7, the Apex Court held that Section 5 of the Limitation Act will not apply to election 1 (2018) 9 SCC 808 petitions. In paragraph 10 of the said decision, the Apex Court observed thus:
“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 subject, 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 CPC. 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.”
(underline supplied) 7. The learned counsel appearing for the appellant tried to distinguish the said judgment by pointing out that due to the ignorance about the amendment to sub-section (1) of Section 15 which was brought into force on 23rd February 2016, the appellant filed the election petition before the wrong Court and therefore, the appellant could have saved the limitation by taking recourse to Section 14 of the Limitation Act. In the aforesaid decision of the Apex Court, while dealing with a pari materia provision which is quoted in paragraph 6 of the said decision, it was held that the period of 30 days cannot be extended as the provisions of Section 14 of the Limitation Act clearly stand excluded. The same judgment also excludes the applicability of Section 5 of the Limitation Act to the election petitions.
8. Therefore, in our considered view, the appellant was disentitled to have the protection of Section 14 of the Limitation Act. Even Section 24-A of the said Act of 1993 will not help the appellant. Section 24-A which was incorporated by the Act No.44 of 2015 provides for transfer of election petitions before the Civil Judge (Junior Division) and Civil Judge (Senior Division) which were pending on 23rd February 2016. The Legislature has not made any specific provision for dealing with petitions wrongly filed in the Court other than designated Court after the amendment to Section 15 came into force.
9. Hence, we find no error in the view taken by the learned Single Judge. Accordingly, the appeal is dismissed.
The pending interlocutory application does not survive and is accordingly disposed of.
Sd/- CHIEF JUSTICE Sd/- JUDGE bkv