Case: Veeresh Kotagi Vs. M. Shivalingappa & Others

1. Leave granted.2. The respondent No.1 filed Election Petition No.1 of 2016 against the present appellant before the Senior Civil Judge and JMFC, Soraba on many a ground. The Senior Civil Judge and JMFC, Soraba, vide order dated 01.07.2017, set aside the election of the appellant.3. Being aggrieved by the aforesaid order, the appellant preferred Writ Petition No.38601/2017 in the High Court of Karnataka at Bangalore. Before the High Court, it was contended that the Civil Judge (Senior Division) had no jurisdiction to entertain the election petition. The writ Court declined to accept the said plea by stating thus:"8. This Court is therefore of the opinion that such a question should have been raised before the learned Court below in the first instance. Now at this stage, since an alternative remedy by way of review or further appeal is available to the petitioner, this Court is not inclined to interfere in the present case at this stage and there are no extraordinary reasons or circumstances to allow the present petitioner to directly approach this Court by way of present writ petition."4. Being of this view, it dismissed the writ petition.5. An intra-court appeal was filed by the appellant forming the subject matter of Writ Appeal No.5602/2017 (LB-ELE) and the Division Bench of the High Court declined to interfere in the appeal by opining thus:"8. We, however, do not think it proper to exercise our discretion to entertain this appeal so as to give a finding at this stage as to whether the Court before whom the election dispute was filed by the respondents, indeed had the inherent jurisdiction or not. We think, that is a matter which has to be considered by that Court in the first instance. In such circumstances, we do not think that the said Judgments would be of any assistance to the appellant herein.9. In the circumstance, we find that the learned Single Judge was right in not entertaining the Writ Petition or interfering with the impugned order and relegating the petitioner to either file a review petition or an appeal against the order dated 01.07.2017. Therefore, we find no merit in the Writ Appeal."6. It is submitted by Mr.G.V.Chandrashekar, learned counsel for the appellant that when the Civil Judge(Senior Division) does not have the inherent jurisdiction, he could not have entertained the Election Petition and passed an order setting aside the election of the appellant.7. Mr.H.Chandra Sekhar, learned counsel for the respondents per contra would contend that such an issue was not raised before the Court of first instance and, therefore, the High Court is justified in not interfering with the order setting aside the election. Section 2(9-A) of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (hereinafter referred to as `the Act), at the relevant time, defined the Designated Court as under:"(9-A) `Designated Court means the jurisdictional Court of Senior Civil Judge designated for the trial of election disputes related to Gram Panchayats and Taluk Panchayats and the court of the jurisdictional District Judge for the trial of election disputes relating to Zilla Panchayats, in whose territorial jurisdiction respectively, the panchayat area or a major portion of the panchayat area is situated."8. The word "district" has been defined under sub-section (10) which means the revenue district. Section 15 of the Act deals with election petition, which is as follows:"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."9. There is no dispute that Section 2(9-A) has been amended on 12.07.2017 and on the date when the election was set aside, the aforequoted provision was in force. On a plain reading of the aforesaid provision, it is clear to us that the Senior Civil Judge was designated for the trial of election disputes to Gram Panchayats and Taluk Panchayats and the Court of jurisdictional District Judge was designated for the trial of election disputes relating to Zilla Panchayats. Thus, there can be no iota of doubt that the Senior Civil Judge had no jurisdiction whatsoever to try the election disputes as an Election Tribunal. It is the jurisdictional District Judge who has been statutorily declared as the `Designated Court. It is well-settled in law that consent cannot confer any kind of jurisdiction.10. In view of the aforesaid, the election proceeding was not maintainable and, therefore, we are compelled to set aside all the orders passed against the appellant and accordingly it is so ordered. Needless to say, the appellant shall function as a Member of the Zilla Panchayat. It is to be stated here that anyone who challenges or assails an election has to do it in the appropriate forum otherwise the law relating to election shall lose its sanctity.

Decision:
1[ds]9. There is no dispute that Sectionhas been amended on 12.07.2017 and on the date when the election was set aside, the aforequoted provision was in force. On a plain reading of the aforesaid provision, it is clear to us that the Senior Civil Judge was designated for the trial of election disputes to Gram Panchayats and Taluk Panchayats and the Court of jurisdictional District Judge was designated for the trial of election disputes relating to Zilla Panchayats. Thus, there can be no iota of doubt that the Senior Civil Judge had no jurisdiction whatsoever to try the election disputes as an Election Tribunal. It is the jurisdictional District Judge who has been statutorily declared as the `Designated Court. It isin law that consent cannot confer any kind of jurisdiction.10. In view of the aforesaid, the election proceeding was not maintainable and, therefore, we are compelled to set aside all the orders passed against the appellant and accordingly it is so ordered. Needless to say, the appellant shall function as a Member of the Zilla Panchayat. It is to be stated here that anyone who challenges or assails an election has to do it in the appropriate forum otherwise the law relating to election shall lose its sanctity.