Jayavani vs P. Geetha and others. Writ Petition 52861/2019 decided on 16 October 2020. Justice Krishna S Dixit.
Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/344729/1/WP52861-19-16-10-2020.pdf
Relevant Paragraphs: 5. By now, it is well established that democracy and republicanism are the basic features of the Constitution; about half a century ago, this Court in Sri. S Nagangound vs Y. Basy Reddy, 1969 ILR Mys. 734, whilst invalidating a Munsiff’s interim order made in an election petition restraining the returned candidate from functioning as a member of the village panchayat has observed as under: “Normally in election matters, the verdict of the electorate has to be respected and given effect to until it is set aside on any one of the grounds on which the law permits it to be set aside.” The reasons for this view are not far to seek; if a returned candidate in an election is restrained from functioning merely because his election is in challenge, it would not augur well for the people of the electoral constituency; they lose a representative whom they have elected, and to that extent, there would be none in the municipal body to voice their concern; this is not a happy thing to happen in local self governance; added to this, ordinarily, the trial of election petitions is a long drawn exercise and at times such exercise consumes the full electoral tenure in question, the legislative mandate to accomplish the same in a time bound manner, notwithstanding; that is the reason why the legislature in its wisdom and consciously has not empowered the Election Tribunal to grant interim relief such as staying of election result or such other order which may have that effect, during the pendency of election disputes; this aspect having not been adverted to by the learned Judge of the Court below, the impugned order is infected with a legal infirmity, apparent on its face.
6. Although, the election petitions are tried by the Civil Courts, they are only statutory tribunals which ordinarily, do not have inherent powers in the absence of statutory enablement; this Court in Malleshappa Vs. Pavanasiddappa, 1979 (2) KLJ 171, has observed that a Munsiff functioning under the then Karnataka Village Panchayats (Election of Chairman and Vice Chairman) Rules being a persona designata does not have inherent power; merely because Section 24 of the Act prescribes CPC procedure for trial of an election petition as is applicable to suits, it cannot be readily inferred that these tribunals too have inherent power like the Civil Courts; the conspicuous absence of power to grant interim relief in election disputes, is a matter of legislative policy; a contention to the contra, militates against the rudiments of Election Jurisprudence and therefore the impugned order is ex facie unsustainable.
7. The Apex Court in Jyothi Basu vs Debi Ghosal , AIR 1982 SC 983 at para 8, has observed as under:
“A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An Election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the Common Law nor the principles of Equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket. Thus the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act. …”
The above observations equally apply to the municipal election disputes as well, since the Municipal Bodies now have been granted constitutional status vide Articles 243-Q & 243-R introduced to the Constitution by the 74th Amendment, and that such bodies are grassroot units of democracy.
In the above circumstances, this Writ Petition succeeds; a Writ of Certiorari issues quashing the impugned order; the learned Judge of the Court below is requested to accomplish the trial & disposal of the election case in E.P.No.1/2019, within an outer limit of four months, and report compliance to the Registrar General of this Court.
Compiled by S. Basavaraj, Advocate, Daksha Legal.
Daksha Legal 