Aisha Potti vs The Returning Officer

P.R. Raman, J.—Petitioner in this Original Petition is the third respondent in Election O.P. 1 of 2000 now pending before the 3rd Additional District Court, Kollam.

The petitioner is the successful candidate from the Kottarakara Division in Kollam District whose election was challenged by the second respondent herein in the said Election Petition. The election petition was originally filed before the Prl. District Court, Kollam which has since been transferred to the 3rd Additional District Court, Kollam based on an application filed by the second respondent herein. At the relevant time, the Principal District Court was seized of other matters and in view of paucity of time and for a speedy disposal of the case, the matter was transferred to the 3rd Additional District Court. Two more witnesses were also examined by the 3rd Additional District Court to which the case stood transferred. Petitioner challenges the said transfer of the election petition by the District Court, Kollam to the 3rd Additional District Court.

It is contended that the only power which the civil court has in the matter of transfer is u/s 24 of the CPC and since the transferred court is also an Additional District Court, the District Court cannot transfer the matter to that Court. It is contended by the learned counsel appearing for the petitioner that if only an Additional District Court is subordinate to the District Court, that a transfer can be made u/s 24 of the Code of Civil Procedure. If the Additional District Court is considered to be subordinate for the purpose of transfer, then for the very same reason, he submits that the third Additional District Court will have no jurisdiction to try the Election Petition because according to him, the election petition can only be heard by a District Court by virtue of Section 88 of the Kerala Panchayat Raj Act, Learned counsel for the respondents submits that the election petition has to be disposed of within a statutory period of six months as per Section 93(5) of the Panchayat Raj Act and since the Prl. District Court was seized of other matters, it had no time to conduct the day to day trial and the second respondent prayed for an early disposal of the case and it was in that circumstances that the transfer of the case was made to the 3rd Additional District Court.

After hearing the matter and in view of Section 88(2) of the Kerala Panchayat Raj Act, it was thought desirable to have the assistance of the learned Advocate General and accordingly, he appeared before me and argued the matter,

As per Section 88(b) of the Panchayat Raj Act, the Court having jurisdiction to try an election petition in the case of a District Panchayat is the District Court having jurisdiction over the place in which the Head Quarters of the Panchayat concerned is located. As per Section 88(2) of the Panchayat Raj Act, the Government shall in consultation with the High Court notify the appropriate courts in the Gazette. Therefore, the contention of the petitioner that only the Pri. District Court will have jurisdiction over the matter cannot be accepted. If there are more than one District Court, namely, the Prl. District Court and Additional District Court and if the Government by notification as contemplated under Sub-section (2) of Section 88 notifies such other Additional District Court as well, then such other District Court will also have jurisdiction to try the election petition u/s 88 of the Act.

Section 24 CPC deals with general power of transfer and withdrawal and enables the District Court to transfer any suit, appeal or other proceedings pending before it, for trial or disposal to any court subordinate to it and competent to try or dispose of the same. Though the District Court is therefore empowered to transfer a case to an Additional District Court, then also such Additional District Court should also be a court competent to try or dispose of the matter. For the limited purpose of Section 24 alone, an Additional District Court shall be deemed to be subordinate to the District Court. Hence if an Additional District Court if otherwise competent to try and dispose of the election petition and if it is notified u/s 88(2) then the District Court is empowered to transfer to such Additional District Court notified. It is only by virtue of such notification that the Additional District Court will be competent to try and dispose of the matter. In this case, the 3rd Additional District Court to which the case is transferred is not seen included in the notification issued by the Government of Kerala in exercise of Sub-section 2 of Section 88 of the Kerala Panchayat Raj Act. As per the notification dated 21.9.1995 published in the Kerala Gazette (extra ordinary) the District Court, Quilon alone is notified and the Additional District Court, Kollam does not find a place in the said notification. On the other hand, in Thiruvananthapuram area, besides the District Court, Thiruvananthapuram, even the 1st Additional District Court and 2nd Additional District Court, Thiruvananthapuram, have been separately notified. In the same way, the District Court, Ernakulam 1st and 2nd Additional District Court, Ernakulam are notified as appropriate courts for trying election cases; Therefore, it is clear that at present, District Court, Kollam alone is competent to try the election petitions in the area as that court alone is notified under Sub-section 2 of Section 88 of the Act. Therefore, the transfer of the election case by the District Court to the 3rd Additional District Court is not legal since the 3rd Additional District Court will have no jurisdiction to try such cases. It is not a notified court u/s 88(2) of the Panchayat Raj Act.

In view of the above, Election O.P. 1 of 2000 now pending before the 3rd Additional District Court, Kollam wilt be re-transmitted to the District Court, Kollam and that Court will proceed to dispose of the same in accordance with law. Since the witnesses are examined by 3rd Additional District Court, the question as to whether the witnesses already examined by that Court should be examined de novo may also be considered by the District Court. The matter may be considered and disposed of as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment.

The Original Petition is disposed of as above.