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2021 Supreme(Kar) 30
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
K.S. Mudagal, J.
Shri Ravi Shivappa Padasalagi @ Savadi S/O Shivappa Padasalagi - Petitioner
Versus
Sri Iranna Kadadi S/O Bhimappa and ors. – Respondents
Election Petition No.1 of 2020
Decided On : 18-02-2021
Advocate Appeared:
For the Petitioner:Sri Chaitanya S.G. Advocate
For the Respondent:Sri Vivek S.Reddy, Senior Counsel For, Sri K.N.Subba Reddy, Advocate, Sri H.R.Showri, HCGP
Point of Law:Election - Petition has to be filed within 45 days from the date of the election of the returning candidate – Hence barred by Section 81 R/w Section 2(e), Explanation to Section 81, Section 152 of the RP Act and Article 80(4) of the constitution
Headnote:
Constitution of India,1950 - Article 80(4) - Code of Civil Procedure, 1908 - Order VII Rule 11 - Representation of the People Act, 1951 - Section 81, 100(1)(d)(iv) , 29(2) and 152 - Limitation Act - Section 4 - Election - Filling up the seats - Seeking rejection of election petition - Election Commission of India issued Notification dated for filling up seats of retiring members of Rajya Sabha between period - Respondent No.2 by Notification dated notified room No.106 as polling place - On respondent No.1 filed his nomination papers before respondent No.2. In all 4 seats were sought to be filled up under the notification - Along with respondent No.1, three others had submitted their nomination from different political parties - Petitioner submitted a representation to respondent No.2 Chief electoral Officer and Assistant Chief Electoral Officer alleging that respondent No.1 while submitting his nomination in Part-A suppressed information with regard to his family members etc –
Finding of the Court:
Referring to the notice dated issued by this Court and Standard Operating Procedure referred to in said notice, he submits that, this Court’s office was functioning and it was not totally closed - Therefore he submits that there was no impediment for filing petition in registry - He further submits that nothing was placed on record to show that prior to petitioner communicated to Registry of this Court for filing the petition - Court had extended limitation invoking Section 4 of Limitation Act - But said provision is not applicable to election process which is filed under said enactment - In support of his contention, he relied upon judgment of Supreme Court in Hukumdev Narain Yadav vs Lalit Narain Mishra, (1974) 2 SCC 133 - In Hukumdev Narain Yadav’s case referred to supra, it was held that Section 4 to 24 of Limitation Act are not applicable to Election Petition by virtue of Section 29(2) of RP Act –
Result: I.A.No.3/2020 is partly allowed - I.A. No.4/2020 is dismissed.
ORDER :
Respondent No.1 has filed IA No.3/2020 under Section 81 of the Representation of the People Act, 1951 (‘the RP Act’ for short) read with Order VII Rule 11 of the Code of Civil Procedure, 1908 (‘CPC’ for short) seeking rejection of election petition on the ground of maintainability and bar of limitation.
2. Further he has filed IA No.4/2020 under Section 81 of the RP Act read with Order XIV Rule 1 of CPC seeking to frame and decide the issue of maintainability of the petition as preliminary issue. The petitioner has filed his counter to both the applications.
3. The above petition is filed under Section 81 read with Section 100(1)(d)(iv) of the RP Act to set aside the election of respondent No.1 dated 12.06.2020 as member of the Council of States.
4. The Election Commission of India issued Notification dated 01.06.2020 for filling up the seats of the retiring members of Rajya Sabha between the period June and July 2020. Respondent No.2 by the Notification dated 02.06.2020 notified room No.106 of Vidhana Soudha, Bengaluru as the polling place. On 09.06.2020 respondent No.1 filed his nomination papers before respondent No.2. In all 4 seats were sought to be filled up under the notification. Along with respondent No.1, three others had submitted their nomination from different political parties.
5. There were no rival contestants against the said four persons. Therefore by Annexure-M dated 12.06.2020 to petition, respondent No.2 declared that respondent No.1 and other three persons were unanimously elected as the members of council of states.
6. On 12.06.2020 the petitioner submitted a representation to respondent No.2 Chief electoral Officer and Assistant Chief Electoral Officer alleging that respondent No.1 while submitting his nomination in Part-A suppressed the information with regard to his family members etc, therefore to take action against respondent No.1.
7. The last date for accepting the nomination papers was 09.06.2020. The representation was submitted on 12.06.2020. The petitioner filed the above petition claiming that suppression of such material facts and non consideration of his representation by respondent No.1 materially affected the election. Therefore he sought for setting aside the election.
8. Respondent No.1 under the above applications seeks the rejection of the petition mainly on the following two grounds:
(i) To maintain a petition under Section 81 read with Section 100(1)(d)(iv) of the Act, the petitioner should be the elector. The petitioner is not elector. Therefore the petition is barred by law.
(ii) The petition on face of it is barred by time.
9. The petitioner opposes the applications on the following grounds:
(i) Though the petitioner is not directly an elector for the members of the Council of States, he is elector’s elector. Therefore he is entitled to maintain the petition.
(ii) During the period of election and subsequent thereto due to Covid 19 pandemic the Courts were partially functioning. Therefore the Hon'ble Supreme Court extended the period of limitation in all cases including the cases involving special enactments. Therefore the petition was in time.
10. Learned Senior Counsel Sri Vivek S.Reddy, appearing for Sri K.N.Subba Reddy, learned advocate on record for the applicant/respondent submits that a reading of Section 81 of the RP Act, Rule 2(e) of the Rules and Explanation to Section 81 of the RP Act makes it clear that the election of respondent No.1 could be challenged only by the elector. Since the petitioner was not an elector, by the statements made in the petition itself, petition was not maintainable and barred by Section 81 of the RP Act.
11. Sri Chaitanya S.G., learned Counsel for petitioner referring to Section 2(e) of the RP Act submits that the members of Legislative Assembly get the right to vote in the election of the members of Rajya Sabha only by virtue of their election by the voters in the election of members of Legislative Assembly. Therefore, he submits that the term el
