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Nagappa Gulappa Amminabhavi Vs. Fakirappa Bhimappa Hanchinal and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 4 of 1969
Judge
Reported inAIR1970Kant73; AIR1970Mys73; (1969)1MysLJ563
ActsMysore Village Panchayats and Local Boards Act, 1959 - Sections 13; Limitation Act, 1963 - Sections 3 and 12(2); Code of Civil Procedure (CPC), 1908; Constitution of India - Article 226
AppellantNagappa Gulappa Amminabhavi
RespondentFakirappa Bhimappa Hanchinal and ors.
Appellant AdvocateR.M. Patil and ;V.H. Ron, Advs.
Respondent AdvocateC.M. Desai, Adv.
Excerpt:
.....amminabhavi was elected to the village panchayat of javoor at the election held early in 1968. the results of the election were declared on 12th march, 1968. respondent 1 fakirappa bhimappa hanchinal, a candidate defeated at the election, filed an election petition before the munsiff of navalgund on 1st april, 1968 under section 13 of the mysore village panchayats and local boards act, 1959. 2. the petitioner remained ex parte. his sole contention is that the petition before the munsiff was clearly barred by limitation prescribed therefor and that therefore, under section 3 of the limitation act, the munsiff was bound to dismiss the same. act, the petition would be well within time. --12 (2) in computing the period of limitation for an appeal or an application for leave to appeal or for..........to the extent relevant, reads -'at any time within fifteen days after the declaration of the result of an election any candidate who stood for election, or any person qualified to vote at the election, may apply, together with a deposit of fifty rupees as security for costs, to the munsiff within whose territorial jurisdiction the village concerned is situate for the determination of the validity of the election.'4. in this case, the petition by the first respondent before the munsiff was filed morethan 15 days after the declaration of the result. the contention on behalf of the first respondent is that he had applied for a copy of the notification containing the declaration of the result on 15th march, 1968, obtained the same on 22nd march, 1968 and that, if the period required.....
Judgment:
ORDER

1. The petitioner Nagappa Gulappa Amminabhavi was elected to the Village Panchayat of Javoor at the election held early in 1968. The results of the election were declared on 12th March, 1968. Respondent 1 Fakirappa Bhimappa Hanchinal, a candidate defeated at the election, filed an election petition before the Munsiff of Navalgund on 1st April, 1968 under Section 13 of the Mysore Village Panchayats and Local Boards Act, 1959.

2. The petitioner remained ex parte. By an order dated 28th October, 1968, the Munsiff, after making a recount of the votes, set aside the election of the petitioner and declared the first respondent as elected.

3. The petitioner has now approached this Court with this writ petition asking for the quashing of the Munsiff's order. As he was ex parte, no questions on merits are raised by the petitioner. His sole contention is that the petition before the Munsiff was clearly barred by limitation prescribed therefor and that therefore, under Section 3 of the Limitation Act, the Munsiff was bound to dismiss the same. The limitation is that prescribed by Section 13 itself of the Village Panchayats Act. Sub-section (1) thereof, to the extent relevant, reads -

'At any time within fifteen days after the declaration of the result of an election any candidate who stood for election, or any person qualified to vote at the election, may apply, together with a deposit of fifty rupees as security for costs, to the Munsiff within whose territorial jurisdiction the village concerned is situate for the determination of the validity of the election.'

4. In this case, the petition by the first respondent before the Munsiff was filed morethan 15 days after the declaration of the result. The contention on behalf of the first respondent is that he had applied for a copy of the notification containing the declaration of the result on 15th March, 1968, obtained the same on 22nd March, 1968 and that, if the period required for taking out that copy is deducted, as he is entitled to under Sub-section (2) of Section 12 of the Limitation. Act, the petition would be well within time.

5. The only question for consideration, therefore is, whether Sub-section (2) of Section 12 of the Limitation Act applies to this case and may be availed of by the 1st respondent. The said provision of the Limitation Act reads as follows:--

'12 (2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded.'

6. Prima facie, an election petition under Section 13 of the Panchayat Act is an original proceeding. The argument strongly passed on behalf of the 1st respondent by his learned counsel, Mr. Desai, is that in effect, or in the eye of law, an election petition must be regarded as either an appeal against or a petition to revise the result as declared by the Returning Officer and that such a declaration by the Returning Officer can be regarded as an order or judgment. Reliance is placed by Mr. Desai on the observations of the Supreme Court contained in the case reported in : [1964]6SCR129 , Vidyacharan v. Khubchand to the effect that a judgment or order, for the purpose of Sub-section (2) of Section 12 of the Limitation Act need not necessarily be a judgment as defined in the Code of Civil Procedure.

7. It appears to us that the observation of the Supreme Court is of no assistance to the argument because, whether an order or judgment in question is or is not one which comes strictly within the definition contained in the Code of Civil Procedure in the sense that the same is not an order or judgment made or passed by the Civil Court functioning under the Code of Civil Procedure, it will be doing considerable violence to the language to call anything an order or judgment which is not an expression of a conclusion arrived at by any authority or person after adjudication of a dispute or difference between the parties contending before it or him. A mere expression of opinion by a person is not an order. An expression of opinion by an adjudicator as to the validity or invalidity, or acceptance or non-acceptance of the contentions of the two parties contending before him may be and should be regarded as an order.

8. So far as the declaration of the results of an election by the Returning Officer isconcerned, there can be no doubt that the declaration that he makes is not the result of any adjudication by him of a dispute, but a mere formal declaration of the counting of the votes. The judgment in the matter, if any, is that of the voters. It has been contended that at any rate there will be adjudication by the Returning Officer in the event of any validity of a ballot paper being called in question. But the declaration of the result of an election is not one which embodies the decision of the Returning Officer about the validity of any ballot paper. What is declared is the ultimate result of the election namely, the result of the counting of valid votes.

9. Secondly, an application under Section 13 of the Panchayat Act to the Munsiff is not an application to examine the correctness or otherwise of the declaration of the results by the Returning Officer, but an application which questions the validity of the election itself. After hearing the parties and taking necessary evidence, the Munsiff is given the power either to confirm or amend the declared results of the election or to set aside the election itself.

The various reasons on which the Munsiff can make an order in relation to the validity of the election set out in the subsequent portions of Section 13 also leave no room for doubt that what the Munsiff is called to examine is the validity of the election itself. Hence, we have no doubt in our mind that an application under Section 13 questioning the validity of an election cannot, in any sense, be regarded as an appeal against or an application to revise the declaration of the result made by the Returning Officer, nor can such a declaration be regarded as an order or a judgment for the purpose of Sub-section (2) of Section 12 of the Limitation Act, or for any other purpose.

10. The view expressed above was also taken by the Assam High Court in the case of Dhatu Ram Das v. State of Assam, reported in AIR 1962 Assam 30.

11. There can be no doubt therefore that the Munsiff was bound under Section 3 of the Limitation Act, to dismiss the petition although the plea of limitation had not been set up as a defence by the petitioner (in this writ petition) or any other respondent before him in the election petition.

12. Mr. Desai has next contended that in any event, we should not interfere in this case, because, the petitioner has been guilty of laches not only in remaining ex parte before the Munsiff but also by taking more than two months after the Munsiffs order to approach this Court. He also states that interference by this Court will cause great dislocation.

13. We are not impressed by this argument for two reasons. The electoral right is a statutory right and the principle is thatin dealing with an election statutory provisions must be strictly interpreted and applied. When Section 13 of the Panchayat Act expressly lays down a time limit of 15 days from the date of declaration of the result for entitling any person to question the validity of the election, it is not possible to extend that time except in accordance with law. We have already examined the legal position and held that there is no way of extending the time by the application of Section 12(2) of the Limitation Act as contended for on behalf of the respondent. The Munsiff, therefore, was bound to dismiss the petition under Section 3 of the Limitation Act. He having failed to exercise that jurisdiction, it is necessary that we should correct that error of jurisdiction which goes to the root o the matter.

14. Secondly, the principle, as far as possible, is not to disturb the verdict of the electorate unless clear grounds justifying the same are made out. The verdict of the electorate in this case was in favour of the petitioner, and the Munsiffs verdict after recounting is a result based on a narrow difference. We do not think therefore that public interest will be served by dismissing this petition.

15. We allow this writ petition, set aside the order of the Munsiff dated 28th October 1968 impugned in this Writ Petition.

16. The parties will bear their own costs.

17. Petition allowed.


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