Kshetra Pal Singh v. Election Tribunal Town — 1960 DIGILAW 102 (ALL)

JUDGMENT Mootham, C.J. - This is a petition under Article 226 of the Constitution which has been filed in the following circumstances. The Petitioner, Sri Kshetra Pal Singh and the third Respondent, Sri Nannu Mai, were candidates for election to the office of Chairman of a Town Area Committee and at the election which was held on the 18th October, 1957, the Petitioner was declared duly elected. The third Respondent then filed a petition under Sub-section (4a) of Section 8A of the UP Town Areas Act, 1914, in which he challenged the validity of Sri Kshetra Pal's election on a number of grounds. 2. The disposal of a petition challenging the election of a Chairman of a Town Area Committee is regulated by Rules 47 to 54 of the "Rules regarding elections to Town Area". Rule 50 provides that the petition shall be presented to the Munsif within whose territorial jurisdiction the Town Area is situated. Rule 51 then provides that a judicial officer appointed by the District Judge shall fix a time and place for hearin? the petition and shall cause notice thereof to be served on the Petitioner and on any person whose election is called in question. Rules 52 lays down that, subject to certain modifications with which we are not now concerned, the procedure provided in the CPC in regard to suit shall, so far as it is not inconsistent with the rules and as far as it can be made applicable, be followed in the hearing of election petitions. Rule 53 then provides that the judicial officer, if he finds that the election which has been called in question is valid shall dismiss the petition, but that if he finds that the election is invalid, he shall either declare elected the next candidate who obtained the highest number of votes or declare a causal vacancy, whichever appears to him the more appropriate. 3. The election petition in the present case was presented to the Munsif on the 15th November, 1957. The District Judge, pursuant to Rule 51, appointed Sri R.C. Deo Sharma, who was then the Civil Judge, Etah, to hear the petition and that officer directed notice of the petition to issue to Sri Kshetra Pal Singh and fixed the 15th and 22nd January, 1958, respectively for the' filing of a written statement and the framing of issues. The District Judge, pursuant to Rule 51, appointed Sri R.C. Deo Sharma, who was then the Civil Judge, Etah, to hear the petition and that officer directed notice of the petition to issue to Sri Kshetra Pal Singh and fixed the 15th and 22nd January, 1958, respectively for the' filing of a written statement and the framing of issues. On the 15th January Sri Kshetra Pal Singh obtained further time for the filing of a written statement and Sri R.C. Deo Sharma adjourned the case to the 10th February. In the meantime however the District Judge had received a letter from the up Sachiva and Deputy Legal Remembrancer to the State Government, dated the 5th February, which reads thus: I am directed to refer to Rules 50 and 51 of the Rules regarding election to Town Areas and to say that under Rule 50 an election petition against the election of a person as Chairman of a Town Area is to be presented to the Munsif within whose territorial jurisdiction the town area is situated and under Rule 51 a judicial officer appointed by the District Judge in this behalf shall hear the petition. The question of appointment of individual officers for the purpose was referred to the High Court who have suggested that petition filed against the election of Chairman of Town Areas in the district of Etah may be heard by Sri R.R. Rastogi, Temporary Civil and Sessions Judge, Etah. I am therefore to request you that if a different nomination has not been made already by you, you may please take necessary action early according to the names suggested by the Hon'ble Court. 4. After the receipt of this letter the District Judge made the following order: The appointment of Sri R.C. Deo Sharma as Tribunal is cancelled and now Sri Raja Ram Rastogi is appointed Tribunal, All petitions pending with Sri R.C. Deo Sharma are transferred to Sri R.R. Rastogi for disposal. 5. This order was made on the 10th February, 1958 and a copy thereof was sent immediately to Sri R.C. Deo Sharma, who on the same day ordered that the petition be transferred to the court of the Temporary Civil and Sessions Judge. Sri R.R. Rastogi, without objection by either party, took up hearing of the petition from the point at which it had been left by his predecessor. Sri R.R. Rastogi, without objection by either party, took up hearing of the petition from the point at which it had been left by his predecessor. On the 22nd April he made an order allowing a scrutiny of the ballot papers. On the 19th May an application was made to him for the amendment of paragraph 1 of the petition. That paragraph of the petition, so far as it is material, reads thus: 4. That the Petitioner questions the election of the Respondent as Chairman of Nidhauli Kalan Town Area Committee on the following grounds: (A) That 25 votes of the Petitioner were improperly rejected by the Returning Officer inasmuch as good ballot papers which should have been accepted for the Petitioner were declared as bad and invalid ballot papers. (B) That at least 10 votes of the Respondent which should have been rejected were improperly accepted by the Returning Officer as good ballot papers. 6. In his application for amendment Sri Nannu Mai desired to give the numbers of six ballot papers which had been declared invalid but which he said ought to have been accepted as valid votes for him and of twenty-one ballot papers which he contended ought not to have been accepted as valid ballot papers for Sri Kshetra Pal Singh. The amendment application was allowed by an order dated the 12th March, 1959, upon payment of costs. The hearing of the petition then proceeded and was ultimately allowed by an order dated the 30th April, 1959 by which the election of Sri Kshetra Pal Singh was set aside and Sri Nannu Mai was declared duly elected. 7. Sri Kshetra Pal Singh then filed the petition which is now before us. He challenges the validity of the proceedings on a number of grounds. The principal relief sought is the issue of a writ of certiorari quashing the order of the Civil Judge dated the 30th April, 1959. In addition the Petitioner seeks also to have quashed by writ of certiorari the order of the District Judge dated the 10th February, 1958 and the orders of Sri Raja Ram Rastogi dated respectively the 22nd April, 1958 and the 12th March, 1959. 8. In addition the Petitioner seeks also to have quashed by writ of certiorari the order of the District Judge dated the 10th February, 1958 and the orders of Sri Raja Ram Rastogi dated respectively the 22nd April, 1958 and the 12th March, 1959. 8. The Petitioner's case has been ably presented to us by Sri B. N. Sapru, who has submitted that as the District Judge had no power to transfer the hearing of the petition from Sri R.C. Deo Sharma to Sri R.R. Rastogi the latter acted without jurisdiction, that the District Judge did not, in appointing Sri R.R. Rastogi, exercise his own discretion and that the final order of the judicial officer dated the 30th April, 1959, is vitiated by fact that his earlier order of the 12th March, 1959 allowing the amendment application, was bad in law. 9. It is convenient to consider first the last of these submissions. Learned counsel's contention is that by allowing Sri Nannu Mal to give particulars of the allegations in Sub-paragraph (A) and (B) of paragraph 4 of the petition, the tribunal was in substance allowing Sri Nannu Mal to set up a new case after the expiry of the period of limitation which, under Rule 50, is thirty days from the date of the election. In our opinion this contention is not well founded. The charges in the petition were that the returning officer had rejected certain ballot papers which were valid and had accepted others which were invalid. The amendment did not introduce any new charge, but merely furnished particulars of instances in support of the charges which were already there. Rule 50 provides that the petition shall specify the ground or grounds on which the election petition is presented and shall contain a summary of the circumstances alleged to justify the petition being questioned on such ground or grounds. Sri Kshetra Pal Singh could have asked for particulars of the allegations in sub-paragraphs (A) and (B) of paragraph 4 of the plaint and the Tribunal could have directed Sri Nannu Mal to furnish them. Instead of that course being followed Sri Nannu Mal himself applied for permission to furnish particulars of these allegations and we think that the Civil Judge acted within his powers in allowing these particulars to be given. Instead of that course being followed Sri Nannu Mal himself applied for permission to furnish particulars of these allegations and we think that the Civil Judge acted within his powers in allowing these particulars to be given. We think that the real question which arises is whether the opposite party has been prejudiced by order which has been made. See Bhagwan Datta Shastri Vs. Ram Ratanji Gupta and Others, AIR 1960 SC 200 . It is not suggested in the present case that Sri Kshetra Pal Singh was so prejudiced and in our opinion, this submission fails. 10. There is no doubt that the order of the District Judge dated the 10-2-1958, cancelling the appointment of Sri R.C. Deo Sharma and appointing Sri Raja Ram Rastogi as the judicial officer who should hear the election petition was made very shortly after the receipt by the District Judge of the State Government's letter dated 5th February, but we do not think it necessarily follows from this fact that the district Judge surrendered his discretion and acted merely in accordance with the request made to him by the Government. Sri Raja Ram Rastogi was a Temporary Civil and Sessions Judge who was considerably senior to Sri R.C. Deo Sharma. The action taken by the District Judge is consistent with his accepting and agreeing with the suggestion made to him that that officer be appointed. It will be observed that the request contained in the State Government's letter did not ask for the appointment of Sri R.R. Rastogi if, as in fact was the case, a nomination had already been made. 11. We think however that learned Counsel is on surer ground when he contends that the District Judge had no Power to transfer a pending election petition from one judicial officer to another. There is no provision in the Rules for transfer and we think it to be clear that the judicial officer who under Rule 53 is required to make a final order is the judicial officer who is appointed under Rule 51. The proper course which Sri Raja Ram Rastogi Ought to have followed was to restart the proceedings de-novo and that if he had done that no valid objection could have been taken to his authority to decide the petition. The proper course which Sri Raja Ram Rastogi Ought to have followed was to restart the proceedings de-novo and that if he had done that no valid objection could have been taken to his authority to decide the petition. It is difficult to see however how the error which has been made in this case can have prejudiced Sri Kshetra Pal Singh, for it appears that the only action which had been taken by Sri Raja Ram Rastogi's predecessor was to issue notice and to fix a date for the filing of a written statement and the framing of issues. Learned Counsel however contends that as Sri Raja Ram Rastogi had no authority to take up the hearing of the petition at the stage at which it was left by his predecessor, the subsequent proceedings before him are invalid and his order must be quashed on the ground that that order was made without jurisdiction. 12. It is, we think well settled in England that a writ of prohibition will issue to stay further proceedings in an inferior court where on the face of the proceedings of that court there is a total absence of jurisdiction, notwithstanding the fact that the Petitioner may have consented to or acquiesced in the exercise of the court's jurisdiction Farquharson v. Morgan (1894) 1 Q.B. 552. That however is not so in the case of certiorari the issue of which, save where it is made on an application of the Attorney General is discretionary; and the Court may refuse the writ notwithstanding the fact that the order sought to be quashed was made by a Tribunal acting without jurisdiction. In Rex v. Williams ex parte Phillias (1914) 1 K.B. 60, Channell, J. said at p. 613: A party may by his conduct preclude himself from claiming the writ ex debito justitiae, no matter whether the proceedings which he seeks to quash are void or voidable. It they are void it is true that no conduct of his will validate them; but such considerations do not affect the principles on which the Court acts in granting or refusing the writ of certiorari. It they are void it is true that no conduct of his will validate them; but such considerations do not affect the principles on which the Court acts in granting or refusing the writ of certiorari. This special remedy will not be granted ex debito justitiae to a person who fails to state in his evidence on moving for the rule nisi that at the time of the proceedings impugned he was unaware of the facts on which he relies to impugn them.... 13. To such a one the granting of the writ is discretionary." This is also, in our opinion, the law in India. In A.M. Allison Vs. B.L. Sen, AIR 1957 SC 227 , the Supreme Court said, Proceedings by way of certiorari are not 'of course.... The High Court of Assam had the power to refuse the writs if it was satisfied that there was no failure of justice and in these appeals which are directed against the orders of the High Court in applications under Article 226 we could refuse to interfere unless we are satisfied that the justice of the case requires it. But we are not so satisfied. 14. The Supreme Court in this case declined to enter into a question of the jurisdiction of an inferior Tribunal. 15. The relief sought in the present case is not the issue of a writ of prohibition but of certiorari and we are of the opinion that we have the power to decline to issue that writ unless we are satisfied that there was a failure of justice. The litigation arising out of the impugned election has been protracted. On two earlier occasions the present Petitioner filed petitions in this Court under Article 226 of the Constitution. At no time prior to the presentation of the present petition did he raise the question of the jurisdiction of the Tribunal. On the other hand he took part throughout in r the proceedings, but this he now says he did in ignorance of the facts of the legal position although it is admitted that he was aware of tile orders made by the District Judge in February 1958. On the other hand he took part throughout in r the proceedings, but this he now says he did in ignorance of the facts of the legal position although it is admitted that he was aware of tile orders made by the District Judge in February 1958. We think it is important that election petitions should-be decided with as little delay as is possible and we would be reluctant to quash the order made by the Tribunal in the present case unless we are compelled to do so. We do not think we are, for learned Counsel has been unable to satisfy us that his client has in any way been prejudiced by the course which events have take of The only real error which has been made is take Sri Raja Ram Rastogi did not re-start the proceedings, but we think it to be clear that, as these' proceedings had made so little progress, his failure to do so cannot have prejudiced the Petitioner. In our opinion, this petition fails and it is dismissed with costs which we assess at Rs. 200.