PHILIP KOSHY M Vs. PROF SAJI CHACKO

JUDGEMENT

(1.) 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. 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'.

(2.) Short facts necessary for disposal of this appeal leaving aside the rival case canvassed by the parties in the proceedings 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 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 ballqt 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.

(3.) 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 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 KerLT 1034 and AisSa Potti v. The Returning Officer, 2002 2 KerLT 146. In the former of the two decisions, Ravi v. Ali Kunhu, 2007 1 KerLT 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 KerLT 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 will have jurisdiction to try the ejection 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 KerLT 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.