C.R. IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 15TH JUNE 2010 / 25TH JYAISTHA 1932 Tr.Appeal(C).No. 4 of 2010() ---------------------------- AGAINST THE JUDGEMENT/ORDER IN TRPC.109/2010 Dated 16/04/2010 .................... APPELLANT/PETITIONER: ---------------------------------------- ADV.M.PHILIP KOSHY, S/O.M.P.KOSHY, AGED 52 YEARS, MODIYIL USHUS, MALLAPPALLY WEST, PATHANAMTHITTA DISTRICT. BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SRI.T.P.PRADEEP SRI.SAJJU.S SRI. K.SHAJ RESPONDENT(S)/RESPONDENTS: -------------------------- 1. PROF.SAJI CHACKO, S/O.K.K.CHACKO, AGED 48 YEARS, KUZHIVELIL HOUSE, THURITHICADU MURI, KALLOOPPARA VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT. 2. MADHU PARUMALA, S/O.GOPALA PANICKER, AGED 43 YEARS, PONVALIL HOUSE, PARUMALA.P.O, PATHANAMTHITTA DISTRICT. 3. K.SAJEEV, S/O.KUNJUKUNJU, AGED 35 YEARS, MAMANDATHU HOUSE, ANJILITHANAM.P.O, THIRUVALLA. ADV. SRI.JACOB P.ALEX FOR R1 THIS TRANSFER APPEAL(CIVIL) HAVING BEEN FINALLY HEARD ON 28/05/2010, THE COURT ON 15/06/2010 PASSED THE FOLLOWING: C.R. THOTTATHIL B. RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------- Tr.Appeal (C).NO.4 OF 2010 () ----------------------------------- Dated this the 15th day of June, 2010 J U D G M E N T S.S.SATHEESACHANDRAN, J. The respondent in an election petition, whose election as a member to the District Panchayat is under challenge, has filed this transfer appeal against the order of the learned Single Judge turning down his request for transfer of the election petition to a different court imputing bias against the Presiding Officer trying the election petition. 2. Parties, for the sake of convenience, are referred to as shown in the present appeal, the returned candidate as the 'appellant' and the petitioner in the election petition as the '1st respondent'. 3. Short facts necessary for disposal of this appeal, leaving aside the rival case canvassed by the parties in the proceedings Tr.A.4/10 2 of the election petition now pending for consideration, may be summed up thus: The court below has passed a number of adverse orders against the appellant flouting and overlooking the statutory provisions in the trial of the election petition, and therefore the appellant has reasonable apprehension that he will not get a 'fair trial 'from that court. In the course of the trial of the election petition, more particularly, when the evidence of the 1st respondent was in progress, an application moved by him (I.A.No.221/2010) for issuing notice against some third parties, two members of the Legislative Assembly and another, that they be also named in the final decision of the court as having indulged in corrupt practices, which was the main ground for impeaching the election of the returned candidate, without giving any opportunity to the appellant, was ordered by the court and that order, viewed in the backdrop of various adverse orders passed earlier against the appellant, would give an impression that there is a likelihood of bias on the part of the court, and a trial before that court would not only be unfair but unjust depriving the appellant to have the opportunity of fair trial. Coupled with the above, another circumstance canvassed to Tr.A.4/10 3 impute bias against the presiding officer was that he had allowed the applicant to have a scrutiny of the election records including ballot papers overruling the objections of the appellant and without entering any finding whether satisfactory ground had been established for such scrutiny. Examination of ballot papers was allowed even before the examination of the first respondent, petitioner in the election petition, and the procedure so followed has generated reasonable apprehension in the mind of the appellant that the court is biased and he would not get a fair trial. The transfer petition raising imputations as above was filed seeking transfer of the election petition to any other District court (Election Tribunal) within the State. 4. The learned Single Judge, after hearing both sides and considering the rival case presented by them with reference to disputed facts and also questions of law, was not impressed by the ground of transfer – bias imputed against the Presiding Officer – canvassed by the appellant, and concluded that the appellant has not made out a case for transfer. Whether a transfer under Section 24 of the Code of Civil Procedure in Tr.A.4/10 4 relation to an election petition presented before an appropriate court notified by the Government in consultation with the High Court under Section 88(2) of the Kerala Panchayat Raj Act, 1994 for short, the 'Act', which too arose for consideration on the challenges pressed into service by the first respondent opposing the transfer petition was also gone into by the learned Single Judge adverting to the relevant sections of the Kerala Panchayat Raj Act, Representation of the People Act, 1951 and two decisions rendered by this Court namely, Ravi v. Ali Kunhu (2007 (1) KLT 1034) and Aisha Potti v. The Returning Officer (2002 (2) KLT 146). In the former of the two decisions, Ravi v. Ali Kunhu (2007 (1) KLT 1034), it has been held that sub section (2) of Section 88 of the Act is not mandatory, but only directory, and the jurisdiction of a court to try an election petition under Section 88(1) is not dependent on a notification under Section 88(2) of the Act. In the other decision rendered earlier in point of time, namely, Aisha Potti v. The Returning Officer (2002 (2) KLT 146), a different view had been taken that once the Government issued a notification as contemplated under sub section (2) of Section 88 of the Act, that court alone Tr.A.4/10 5 will have jurisdiction to try the election petition, and, therefore, transfer of an election petition from a notified court to another non-notified court invoking Section 24 of the CPC is impermissible. The learned Single Judge observing that the provisions of the CPC are made applicable subject to the provisions of the Act and the rights of the parties are governed by the provisions of the Panchayat Raj Act and the rules thereunder even in matters relating to trial of an election petition, has held that the decision in Ravi v. Ali Kunhu (2007 (1) KLT 1034) cannot be understood to lay down the proposition that the Munsiff/District Court concerned has jurisdiction “even without a notification to that effect as contemplated under Section 88(2) of the Act.” The appellant assails the order passed by the learned Single Judge on both the conclusions formed - rejection of his grounds for transfer and also that the above provision, Section 88(2) of the Panchayat Raj Act, interdicts and curtails the superior court from invoking Section 24 of the CPC in transfer of an election petition from a notified appropriate court to another non-notified court, but, court of competent jurisdiction as under Section 88(1) of the Act. Tr.A.4/10 6 5. We heard the counsel on both sides, learned Senior counsel Sri.T.Krishnanunni, for the appellant, and Sri.Jacob P. Alex for the 1st respondent. The learned senior counsel Sri.T.Krishnanunni adverting to the orders passed from time to time by the Presiding Officer at various stages of the trial, strenuously contended that the manner in which the trial is being conducted has created reasonable apprehension in the mind of the appellant that he will not get a fair trial. We, however, have noticed that the adverse orders passed by the court below against the appellant had been challenged by him before this Court, and also before the apex court twice, and at any stage thereof, he had not imputed any bias nor even a whisper thereof against the Presiding Officer. It is also undisputed that further challenges taken by the appellant, after being negatived by this Court, on both occasions, had been turned down by the apex court. We refrain from making any reference to the earlier orders passed by the Presiding Officer, in respect of which challenges had been raised before this Court, some of them later to the apex court also, as any dilation over Tr.A.4/10 7 such orders has to be avoided at this stage. The learned senior counsel Sri.T.Krishnanunni advanced an argument that the omission, default or failure on the part of the appellant to impute bias against the Presiding Officer when his previous orders were challenged before this Court earlier, and also the apex court, cannot be viewed as a circumstance belittling the ground for transfer raised. We need only observe that the final orders passed either by this Court or the apex court in respect of the challenges raised against the orders of the Presiding Officer have to be treated as conclusive except to any matter left open for consideration in trial. Any imputation of bias against the Presiding officer on account of the adverse orders previously passed against the appellant, which had been further agitated before this Court, and also the apex court, cannot be countenanced as he had no such case earlier and further the decisions rendered thereof have become final and conclusive. 6. So, on the facts presented, the ground of transfer raised by the appellant imputing bias against the Presiding Officer has necessarily to be examined solely with respect to the orders Tr.A.4/10 8 passed during the course of recording of the evidence for scrutiny of the election records, and also allowing an application moved by the 1st respondent, I.A.No.221 of 2010, for issuing notice to some third parties as to why they should not be named, for having indulged in corrupt practice, in the final decision to be rendered in the case. 7. First of all, whether the court below should have permitted the scrutiny of ballot papers at the stage of the examination of the 1st respondent/petitioner in the election petition, and at that stage, whether sufficient grounds had been made or not for such scrutiny, no doubt, depends upon the facts and circumstances involved and also the materials placed before the court. The appellant has not challenged that order permitting scrutiny of the ballot papers. The learned counsel for the 1st respondent submits that the scrutiny of the election records were done by both the parties in the presence of an officer of the court as permitted by the court. Though scrutiny of the records by the appellant or any representative on his behalf was disputed, we find no need to go into such question in the Tr.A.4/10 9 present appeal. A court having jurisdiction to decide a case is fully empowered to pass such orders as are necessary for a decision in the case. Jurisdiction conferred on the court enables it to pass even such order which may turn out to be wrong and perhaps illegal. Aggrieved party affected by that order has to challenge it in proper proceedings before the appropriate forum as provided by law. Even assuming that the order passed by the Presiding Officer in the present case for scrutiny of election records is wrong or illegal, that by itself is not sufficient to hold that that order was passed as he is biased towards the appellant. Needless to point out, if the scrutiny of the records permitted by the court during the stage of examination of the 1st respondent has vitiated the trial, it may be a ground available to the appellant to impeach the final order in the case, if need be. At what stage, a court trying an election petition can permit inspection of the ballot papers depends upon the materials placed and also the facts and circumstances involved in the case. Secrecy of ballot which is often projected as a shield to resist the scrutiny has necessarily to be weighed with that of a competing principle 'the purity of election'. The 1st respondent/the Tr.A.4/10 10 petitioner in the election petition has challenged the election of the appellant imputing corrupt practice alleging that keeping the District collector in duress, in his presence, the postal ballots had been forcefully collected and stamped in favour of the appellant. May be in the background of the allegations raised challenging the election of the appellant and materials prescribed, the court below has permitted the scrutiny of the election records in the presence of an officer of the court in advance, before completing the recording of evidence by the parties. In the context, it may be profitable to note the decision of the apex court in Neelalohithadasan Nadar v. George Mascrene (1994 (1) KLT 887 (SC)) repelling the challenge raised over the scrutiny of the election records, the apex court has observed thus: “Secrecy of ballot” principle pre-supposes a validly cast vote, the sanctity and sacrosancy of which must in all events be preserved. When it is talked of ensuring free and fair elections it is meant elections held on the fundamental foundation of purity and the “secrecy of ballot” as an allied vital principle. In view of the above, it is the settled position that out of the two competing principles, the Tr.A.4/10 11 purity of election principle must have its way. Section 94 of the Act cannot be pressed into service to suppress a wrong coming to light and to protect a fraud on the election process. The primary purpose was thus to purify the electoral process and not to hunt or hound the voter's choice, when exercised validly and freely. It is for that purpose that the court, in the interest of justice, to facilitate a quick trial permitted the parties to inspect beforehand the records but after the framing of the requisite issues arising from the pleadings of the parties and earlier. This attempt could not be termed as permitting a 'roving or fishing' enquiry, as it is sometimes described in cases of a claim for recount.” The above decision rendered by a Bench of three Judges in a case wherein the challenge was on the ground of double voting, no doubt, has significance in examining the order passed by the court below in permitting the scrutiny of the election records in the course of recording evidence. We are not expressing any opinion on the correctness of the order, but only observing that we are not impressed by the arguments canvassed that the scrutiny permitted before completing of the evidence is illegal. 8. The Presiding Officer on an application moved by the Tr.A.4/10 12 1st respondent (I.A.No.221/2010) had ordered for issuing notice to some third parties directing their appearance to show cause why they should not be named in the final decision as having indulged in corrupt practice is projected to impute bias against him. The order passed against such third parties, it is submitted, had already been set aside by this Court on the challenge taken by two among the parties. The appellant was not given opportunity even to file a counter against the above interlocutory application is the basis for imputing bias. A time limit had been fixed by this Court for disposal of the case and that period being over, further extension was applied for by the court below and allowed, is not under dispute. The term of office of the appellant, whose election is impeached in the petition, will be over within a few months. Challenges raised before this Court and later before the apex court, over various orders of the court below, and the orders passed staying the trial of the election petition, no doubt, have contributed for the delay in the culmination of the proceedings. In that backdrop, the non-providing of an opportunity to the appellant/petitioner to file a counter to the interlocutory application has to be examined, Tr.A.4/10 13 and that too, with reference to the statutory provisions empowering the court to issue notice to third parties to be named in the final decision in case they have indulged in corrupt practice in the election. True, the stage at which such notice was issued was not correct. Still, having regard to the statutory provisions, it goes without saying that the appellant has no say in the matter. He has also not challenged the order passed by the court issuing notice to the third parties. When the parties who had been issued the notice had challenged such order, the court was not inclined to adjourn the trial is canvassed as a ground or a circumstance to impute bias against the Presiding Officer. We find no merit in the case so projected since a time bound disposal had been ordered by this Court earlier, which the court below was bound to give effect to. So much so, the grounds canvassed for transfer - bias imputed against the Presiding Officer - as held by the learned Single Judge, is unworthy of any merit. 9. The matrix of the case for transfer - the ground of bias imputed against the Presiding Officer - having been found to be unworthy of any merit or consideration, the decision of the Tr.A.4/10 14 learned Single Judge declining the request for transfer has only to be upheld. But, as already indicated, since conflicting views had been expressed over the competency of the superior court to invoke the powers under Section 24 of the CPC to transfer an election petition from a notified court under Section 88(2) of the Act to another court, we deem it proper to examine that question as well to resolve the controversy thereunder. 10. Section 88 of the Act reads thus: 88. The Court competent to try election petition:- (1) The Court having jurisdiction to try an election petition shall be,- (a) in the case of a Village Panchayat, the Munsiff's Court having jurisdiction over the place in which the headquarters of the Panchayat is located; and (b) in the case of a Block Panchyat or District Panchayat the District Court having jurisdiction over the place in which the headquarters of the Panchayat concerned is located. (2) the Government shall, in consultation with the High Court notify the appropriate Courts in the Gazette. Stressing upon Article 243-O of the Constitution of India, which Tr.A.4/10 15 place a bar to interference by courts in electoral matters otherwise than provided by any law by the Legislature of the State, the learned counsel for the 1st respondent has argued that the statutory provision covered by Section 88(2) of the Act has to be honoured in letter and spirit, and only the court notified by the Government as the appropriate court has jurisdiction to try an election petition. The High Court, even when it has supervisory jurisdiction over the civil court, which has been notified as the appropriate court under Section 88(2) of the Act by the Government to try the election petition, cannot exercise any power under Section 24 of the CPC to transfer an election petition from the file of that appropriate court to any other court as it is not so provided under the provisions of the Act, is the submission of the counsel. Section 94 of the Act envisages of trial of an election petition subject to the provisions of that Act and Rules in accordance with the procedure applicable under the Code of Civil Procedure is highlighted by the counsel to contend that only in respect of the trial, and that too, subject to the provisions of the Act and Rules, the provisions of the CPC have application in resolving election disputes. When the statute, Tr.A.4/10 16 Panchayat Raj Act, is silent with respect to the conferment of any power on any superior court to transfer election petition from a notified appropriate court, it is the submission of the counsel that whatever be the circumstances justifying a course of transfer, it cannot be done by a superior court invoking Section 24 of the CPC. Drawing an analogy with reference to the provisions under the Representation of the People Act, particularly, Sections 80A, 86, 96, 99 and 116 A of the Act, it is argued that only the Judge/Judges nominated by the Chief Justice can try an election petition under the above Act, and similarly, the appropriate court notified by the Government under Section 88(2) of the Act alone has jurisdiction to try an election petition under that Act and, it cannot be transferred by the superior court under Section 24 of the CPC for the reason that the appropriate court notified is a civil court under its supervision and control. Reliance in support of the proposition canvassed is placed by the counsel in Upadhyaya Hargovind Devshanker v. Dhirendrasinh Virbhadrasinhji Solanki and Others ((1988) 2 SCC 1), Satya Narain v. Dhuja Ram and Others (AIR 1974 SC 1185) and Mohinder Singh Gill and another Tr.A.4/10 17 v. The Chief Election Commissioner, New Delhi and others (1978) 1 SCC 405). 11. Per contra, the learned counsel Sri.T.Krishnanunni pointing out that efficacious and speedy disposal of an election petition, the disposal for which an outer limit from the date of its presentation is prescribed under Section 93(5) of the Act, is the spirit behind notification of the appropriate court for trial of the election petition, and it does not in any way whittle down the powers of the superior court where the court notified as the appropriate court is a civil court under its supervision and control. The establishment of the civil court and its supervision and control by the superior courts with reference to the Civil Courts Act, Code of Civil Procedure and the Constitution of India is stressed upon by the counsel to contend that the notification issued by the Government nominating one or more of the civil courts having competence and jurisdiction to try an election petition as enjoined under Section 88(1) of the Act, in no way curtail, and further, it cannot place any restriction or interdiction on the superior court to exercise its empowerment to transfer an Tr.A.4/10 18 election petition from the notified appropriate court to any other court of competent jurisdiction. At the most, only in respect of the presentation of an election petition the notification over the appropriate court can be given significance as of having inviolability having regard the provision under Section 89 of the Act, but not in relation to the authority and power of the superior court as enjoined under Section 24 of the CPC to transfer the election petition to some other competent court, if need be, according to the learned counsel. The learned counsel has relied on E.Kumar v. P.Jothi and Others (CDJLJ 2009 MHC 284) and N.P.Ponnuswami v. the Returning Officer, Namakkal Constituency, Namakkal, Salem District and Others (AIR 1952 SC 64) to support the argument that once after the presentation of the election petition before the appropriate court the supervisory control enjoined by the superior court which has the power of transfer of the proceeding can invoke the provisions under Section 24 of the CPC, is empowered to order transfer, and, for which, no sanction or permission or a fresh notification from the Government nominating the transferee court as the appropriate court is called for, and, at the most, the court to Tr.A.4/10 19 which the case is transferred must be a court having competent jurisdiction to try the election petition under Section 88(1) of the Act. Judicial pronouncement rendered by a Division Bench of this Court, namely, Sushama v. Mercy Antony (1999 (3) KLT 818) on the maintainability of the civil revision petition under Section 115 of the CPC over the judgment passed by the appellate court in respect of an election petition under the Panchayat Raj Act is pointed out by the learned counsel to contend that the power of superintendence and control exercised by this Court over the civil court under the constitutional provisions and also that of the Code of Civil Procedure not only confer empowerment, but, cast an obligation to exercise its powers under Section 24 of the CPC in the matter of transfer of an election petition from an appropriate court to a court of competent jurisdiction. Articulating on the constitution and establishment of Court, Tribunal and a civil court, and the distinction to be drawn between a civil court and court trying a dispute of civil nature and the administration and control over such court, Tribunal and civil court by the superior court, the learned counsel placing reliance on Nahar Industrial Tr.A.4/10 20 Entreprises Ltd. v. Hong Kong and Shanghai Banking Corporation ((2009)