IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 16TH APRIL 2010 / 26TH CHAITHRA 1932 Tr.P(C).No. 109 of 2010() ------------------------- OPEP.49/2005 of DISTRICT COURT, PATHANAMTHITTA .................... PETITIONER: ----------------------- ADV.M.PHILIP KOSHY, S/O.M.P.KOSHY, AGED 52 YEARS, MODIYIL USHUS, MALLAPPALLY WEST, PATHANAMTHITTA DISTRICT. BY ADV. SRI.T.P.PRADEEP RESPONDENT(S): ---------------------------- 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. THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss P.BHAVADASAN, J. ------------------------------------- TP(C) No.109 of 2010 ------------------------------------- Dated 16th April 2010 Order This is a petition filed under S.24 CPC, seeking transfer of OP(Election) No.49/05, pending before the District Court, Pathanamthitta to any other District Court within the State. 2. The petitioner gives his reasons for the above prayer thus : The first respondent filed OP (Election) No.49/05, challenging the election of the petitioner before the District Court, Pathanamthitta. He had contested from Ward No.2 of Mallappally Division of the Pathanamthitta District Panchayat. Several grounds are raised challenging his election. A copy of the election petition is Annexure A1. It is claimed that the petitioner raised a preliminary objection, regarding the maintainability of the petition on the ground of lack of material facts and on other grounds. TP(C) No.109/10 2 While so, it is submitted, the election petition was allowed to be amended, curing the defects and incorporating additional pleadings and also holding that the petition was maintainable. The petitioner challenged the said order before this Court and this Court dismissed the petition. However, the court below was directed to dispose of the election petition within four months from the date of receipt of a copy of the Judgment. A copy of the relevant Judgment is produced as Annexure A2. 3. According to the petitioner, the manner in which the election court is trying the petition has given rise to an apprehension in his mind that he may not get justice in the case and that there will not be any fair trial of the election petition. It is contended that even before the trial commenced, the inspection of the ballot papers and the election records has been allowed by the Court below without any justification whatsoever, thus, violating the solemn principle of secrecy of ballot papers. 4. The examination of witnesses commenced on TP(C) No.109/10 3 10.03.2010 and the petitioner before the court below filed his affidavit in chief and had Exts.A1 to A45 marked. The examination of PW1 was over only on 26.03.2010. While so, on 24.03.2010, at about 2.30 pm, the election petitioner filed IA No.221/10, purported to be under S.101 of the Kerala Panchayat Raj Act, 1984, seeking to have notice issued to three persons namely Mathew.T.Thomas, Raju Abraham and Sanal Kumar, directing them to appear before Court and to show cause as to why they should not be named in the final order as guilty of having indulged in corrupt practice. On that day itself, at about 2.45 pm, the said IA was hastily allowed without giving an opportunity to the petitioner herein to file objections and without hearing him. Copy of the said order is produced as Annexure A3. 5. It is pointed out by the petitioner that the provisions of the Kerala Panchayat Raj Act do not confer a right on the election petitioner to move a petition under S.101 of the Panchayat Raj Act. The notice that is sought to be issued to the persons to be named in the final order, TP(C) No.109/10 4 is a matter between the court and the persons concerned and the petitioner has no say in the matter. The recourse to S.101 is envisaged at a particular stage. The court below without any justifiable reason, allowed the said petition and it shows that and the Court below had already pre-judged the issues in the election petition. Those persons to whom notice has been issued as per the petition, filed by the election petitioner, have challenged the said order before this Court. It is also pointed out that the order permitting the election petitioner and his counsel to inspect the ballot papers, was made without hearing the petitioner and allowing him to file objections, so also the order in IA No.811/09. Copies of the said orders are produced as Annexures A3 and A4. 6. The above acts of the court below, according to the petitioner, are sufficient to show that he may not get a fair trial before the court below. He has quoted several decisions in support of his claim for transfer. 7. Though a counter affidavit has not been filed, the TP(C) No.109/10 5 petition is strongly opposed by the first respondent. It is contended on behalf of the respondent that none of the grounds is sufficient enough to warrant a transfer of the case. According to the learned counsel, apart form the fact that it is not legally possible to transfer the petition to any other court, there are no factual foundation also to order a transfer. Even assuming that there was some error in the order passed by the Court below in allowing inspection of the ballot papers and election records, the petitioner took advantage of the said order and inspected them. If he was aggrieved by the said order, it was open to him to challenge the same in appropriate proceedings before the appropriate forum. That having been not done and having perused the records, it comes with little grace from him to say that the order is illegal. The learned counsel also supported the order of the Court below by which notice was issued to the aforementioned three persons, named by the election petitioner in his IA No.811/09. TP(C) No.109/10 6 8. Two questions arise for consideration in this Petition. They are (1) Whether there is any factual foundation for seeking transfer ; and (2) Is it possible to transfer the case to any other Court ? 9. The rival contentions have been referred to. While the petitioner takes support of certain orders, which, according to him, are sufficient to show that the Court below has already determined the final issues involved in the proceedings, the respondents would say otherwise. The tenure of the petitioner is that the Court below should not have ordered inspection of the ballot papers and election records, also Annexure A3 order and they are sufficient to show that the Court below had pre-judged the issues. 10. The above ground may not be of much help to the petitioner. The order may not be legally justifiable, but ,as rightly pointed out by the learned counsel for the respondents, if the petitioner was aggrieved by the order passed by the Court below, he ought to have challenged TP(C) No.109/10 7 the same and having taken the advantage of the order, he cannot now turn round and say that the order is bad and should not have been made. 11. Equally unsustainable is the ground raised, based on the order allowing amendment and rejecting the preliminary plea of maintainability of the petition. It is seen that the said orders were challenged before this Court and this Court approved the orders of the Court below. The learned counsel for the respondents also pointed out that the matter was carried before the apex court and the apex court refused to interfere. Under such circumstances, it is rightly pointed out by the learned counsel that those orders do not furnish any reason to believe that the Court is biased. 12. One has to notice that this Court by Annexure A2 order has directed the Court below to give the case top priority in hearing and to dispose of the same as expeditiously as possible at any rate, within four months from the date of receipt of a copy of the Judgment. In the TP(C) No.109/10 8 light of the above order, the court below was constrained to take hasty steps to have the trial completed. Even assuming the court below has passed some erroneous orders, that is not a ground for transfer. The Court may have passed a right or a wrong order. If the petitioner was aggrieved by that order, it was for him to take up the matter before the higher forum. There is no basis for saying that the petitioner was not heard in several petitions filed by the first respondent herein before the orders were passed. At the risk of the petitioner, one may notice that some of the orders challenged were approved by this Court. That means, this Court was not inclined to accept the version given by the petitioner herein that those orders were passed without hearing him and without giving him an opportunity to raise his objections. 13. As far as the order on a petition under S.101 of the Kerala Panchayat Raj Act is concerned, if the Court below thought that it had the power and it was necessary to issue notice to the persons named in the petition, the court TP(C) No.109/10 9 cannot be found fault with. May be, the order is wrong. But, that by itself, is insufficient to say that the court below is biased or prejudiced. That is also not a ground to show that the petitioner's apprehensions are true. Moreover, the order passed under S.101 of the Panchayat Raj Act does not directly affect the petitioner at all. Even assuming it is a premature order, that does not lead to the conclusion that the court below has pre-judged the issues. May be that the court below erred in assessing the stage at which the notice was to be issued. These are all matters to be determined by the higher forum. It is significant to notice that there is no allegation by the petitioner that he has been precluded from adducing evidence or that he has not been heard in the matter. Merely because some orders which the petitioner thinks are wrong, have been passed, does not give him a right to seek transfer. No grounds are made out to order transfer on the first point. 14. Even legally, the petitioner may not be entitled to seek transfer. The relevant provision in the TP(C) No.109/10 10 Kerala Panchayat Raj Act reads as follows : “88.The Court competent to try election petitions – (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 is located ; and (b) in the case of a Block Panchayat 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.” 15. The learned counsel for the petitioner pointed out that it has been held by this Court that under the Kerala Panchayat Raj Act, an election court is a court subordinate to this Court and therefore, this Court is competent under S.24 CPC to transfer an election petition to any other District Court, which is notified within the State. Relying on the decision reported in Rev. Father Punnen Thomas v. Moran Mar Bassalios (1963 KLT 781), it was contended that a reasonable apprehension in the mind of the person applying for transfer that he would not receive TP(C) No.109/10 11 justice is sufficient for a transfer of the cases. Relying on the decision reported in Pappammal v. Bhagavathy Appan (1984 KLT 916), it was contended that the transferee court need not have jurisdiction to try the matter. Heavy reliance was placed on the decision reported in Nahar Industrial Enterprises Ltd. v. Hong Kong & Shanghai Banking Corporation (2009(8) SCC 646). It was contended on behalf of the petitioner that S.24 has to be construed liberally and that the courts are intended for providing justice to parties and not to defeat the same. Based on the very same decision, it was contended that the Court trying the election petition under the Panchayat Raj Act, is a civil court and Is subordinate to the High Court. Attention of this Court was drawn to the decision reported in Ravi v. Ali Kunhu (2007(1) KLT 1034) and it was contended that even assuming that there was no notification as contemplated under S.88(2) that does not denude the District Court of its power of trying the election TP(C) No.109/10 12 petition. It was highlighted that the jurisdiction of the court does not depend upon the notification under S.88(2) of the Kerala Panchayat Raj Act. 16. The learned counsel for the first respondent, on the other hand, pointed out that the court having been specified by the Panchayat Raj Act, no other court can have the jurisdiction to try the election petition. Attention was also drawn to S.88(1) which says that as far as the block or district panchayat is concerned, the District Court having jurisdiction over the place in which the headquarters of the panchayat concerned is located alone will have jurisdiction. The Court to which the petition lies has been clearly specified under the Act. This is followed by S.88(2) which says that the Government shall, in consultation with the High Court, notify the appropriate courts in the gazette. Accordingly, it is contended that those courts which are notified by the Government in consultation with the High Court, alone will have jurisdiction to try the election petition in relation to election in a panchayat where the TP(C) No.109/10 13 headquarters of the panchayat is situated. According to the learned counsel, the decisions relied on by the learned counsel for the petitioner can have no application to the facts of this case. 17. Attention of this Court was also drawn to the decision reported in Aisha Potti v. The Returning Officer (2002(2) KLT 146), wherein it was held that a notification under S.88(2) is a must. 18. The learned counsel for the respondents did not dispute that the court which is trying an election petition under the Panchayat Raj Act is subordinate to the High Court. But according to the learned counsel, that is different from saying that the court can exercise the power under S.24 CPC. In the light of the provisions of the Panchayat Raj Act, it could not be said that the transfer may be made to a court which has no jurisdiction to try the election petition. According to the learned counsel, it is not a mere matter of territorial jurisdiction, unlike in ordinary civil cases. TP(C) No.109/10 14 19. In the light of the finding on ground No.1, strictly speaking, this issue does not arise for consideration at all. But, since the counsel on both sides have addressed this Court at length on this point, it is thought fit to refer to the issue. 20. S.88 of the Kerala Panchayat Raj Act, has already been referred to. As afar as S.88(1) is concerned, that only specifies, which of the court among the hierarchy of courts, is to hear election petitions. There can be no doubt regarding the fact that the court trying an election petition is a court subordinate to the High Court. But, to say that it is sufficient enough to order transfer under S.24 of the CPC, is a different matter. S.94 of the Panchayat Raj Act, may be of some relevance in this context, which reads as follows : “94. Procedure before the Court – (1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the Court, as nearly as may be, in accordance with the procedure applicable TP(C) No.109/10 15 under the Code of Civil Procedure, 1908 (Central Act 5 of 1908) to the trial of suits : Provided that the Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so in frivolous ground or with a view to delay the proceedings. (1) The provisions of the Indian Evidence Act, 1872 (Central Act 1 of 1872), shall subject to the provisions of this Act, be deemed to apply in all respects to the trial of any election petition.” 21. Going by the above section, the provisions of the CPC are made applicable, subject to the provisions of the Kerala Panchayat Raj Act and the rules made thereunder. There is no inherent right in matters relating to and regarding election. As far as an election is concerned, the rights are conferred by statutes. Therefore, the rights are circumscribed by the provisions of the statute. At the risk of repetition, one may notice that the provisions of the CPC are made applicable, subject to the provisions of the Kerala Panchayat Raj Act. TP(C) No.109/10 16 22. S.80A of the Representation of People Act 1951 reads as follows : “80A. High Court to try election petitions - (1) The Court having jurisdiction to try an election petition shall be the High Court. (2) Such jurisdiction shall be exercised ordinarily by a single Judge of the High Court and the Chief Justice shall, from time to time assign one or more Judges for that purpose : Provided that where the High Court consists only of one Judge, he shall try all election petitions presented to that Court. (3) The High Court in its discretion may, in the interests of justice or convenience, try an election petition, wholly or partly, at a place other than the place of seat of the High Court.” 23. In the case of Panchayat Raj Act, an election petition lies either to a Munsiff Court or a District Court. As per S.88 of the Representation of People Act, 1951, an election petition lies to the High Court. S.80A quoted above, stipulates that the Chief Justice of the High Court shall from time to time assign one or more Judges for trying election petitions. It has always been held that only those Judges who are nominated by the Chief Justice can TP(C) No.109/10 17 hear an election petition. 24. The reliance placed on Nahar Industrial Enterprises Ltd. v. Hong Kong & Shanghai Banking Corporation (supra) is of no help to the petitioner. That was a case where the question that arose for consideration was whether the suit pending before a civil court can be transferred to a Debt Recovery Tribunal. It was held that the Debt Recovery Tribunal was only a tribunal and it cannot be treated as a court under the High Court. It was also held in the said decision that when a court has no inherent jurisdiction, jurisdiction cannot be conferred by any order of the Court. 25. The decision reported in Ravi v. Ali Kunhu (supra) has to be understood in the context of the facts of the said case. In the said case, a new panchayat was formed and there was no notification with regard to the court before which the election petition had to be filed. Under such circumstances, it was held that going by S.88 TP(C) No.109/10 18 (1)(a) of the Panchayat Raj Act, the Munsiff Court, having jurisdiction over the place in which the headquarters of the panchayat is located, has jurisdiction to try the election petition. 26. One may, at this juncture, refer to the decision reported in Aisha Potti v. The Returning Officer (supra). That was a case in which the transfer of an election petition was made from a notified district court to a non-notified additional district court, for trial and disposal. This Court found that the transfer was illegal. It was also held that the additional district court was not a notified court and therefore, had no jurisdiction to try the election petition. 27. In the light of the above decision, the decision reported in Ravi v. Ali Kunhu (supra), cannot be understood to lay down the proposition that the Munsiff court concerned has jurisdiction even without a notification to that effect as contemplated under S.88(2) of the Panchayat Raj Act. It may be that different District Courts TP(C) No.109/10 19 are notified by the Government under S.88(2). One may notice here that the word used in S.88(2) is 'shall' and not 'may'. So, a notification under S.88(2) confers the courts concerned with jurisdiction to try the petition and that is a mandatory provision. As already stated, even assuming different district courts in the State are notified under S.88 (2), that by itself may not be a ground for transfer of the petition from one district court to another. That is so because of the wordings used in the provision. In S.88(1), the court is specified as that where the place of headquarters of the panchayat concerned is located. When the place and the court are specified by the statutes, the provisions of the CPC cannot be pressed into service, even going by S.94 of the Kerala Panchayat Raj Act. Thus, prima facie, this ground is also not available. It is unnecessary to go further into the matter in more depth since it has already been found on the first ground itself TP(C) No.109/10 20 that the petition has to fail. The result is that this petition is without merits and liable to be dismissed. I do so. P.BHAVADASAN, JUDGE sta TP(C) No.109/10 21