Laxmi Narain Gurmaita v. Ram Narain Mehta — 1980 DIGILAW 199 (PAT)

Judgment SHIVANUGRAH NARAIN, J. 1. Ram Narain Mehta, a member of the Executive Committee of the Balua Bazar Gram Panchayat, Lakshmi Narain Gurmaita, Lekhanand Mishra and two others filed nomination papers for election to the office of the Mukhiya, Balua Bajar Gram Panchayat in the district of Saharsa. The two other candidates subsequently withdrew their nomination papers and after scrutiny, the Election Officer, Balua Bajar Gram Panchayat, declared all the three remaining candidates validly nominated. Thereafter on 26-4-1978, Lakshmi Narain Gurmaita filed petitions under R.23 (4) of the Bihar Panchayat Election Rules, 1959 (hereinafter called Election Rules) before the Sub-Divisional Officer, Birpur (within whose jurisdiction the Balua Bazar Gram Panchayat is situate) praying for rejection of the nomination papers of the other two candidates on the ground that both Ram Narain Mehta as well as Lekhanand Mishra were disqualified for being elected as Mukhiya of the aforesaid Gram Panchayat as they were not permanent residents of Balua Bazar Gram Panchayat. It was alleged therein that Ram Narain Mehta was a resident of village Garhawa within the jurisdiction of Ratanpur Gram Panchayat. Ram Narain Mehta received the notice of the aforesaid objection petition on 27-4-1978 and appeared before the Sub-Divisional Officer on 28-4-1978 and asserted that he was a resident of village Matiari within the jurisdiction of Balua Bazar Gram Panchayat and not of village Garhawa; that he had never exercised his franchise in Ratanpur Gram Panchayat nor did he intend to do so in future and that he had merely a farm (Kamath) house at Garhawa for looking after the cultivation of his lands situated nearby. The objector Lakshmi Narain Gurmaita produced before the learned Sub-Divisional Officer copies of the electoral rolls showing that Ram Narain Mehta was enrolled as a voter in both the aforesaid Gram Panchayats and asserted that for more than 180 days in a year the appellant along with members of his family resided at Garhawa. On behalf of the appellant, it was contended that he was a resident of village Matiari and fulfilled the qualification of having resided within the jurisdiction of the Balua Bazar Gram Panchayat for more than 180 days in the year and, therefore, was not disqualified for being elected as Mukhiya of the said Gram Panchayat. On behalf of the appellant, it was contended that he was a resident of village Matiari and fulfilled the qualification of having resided within the jurisdiction of the Balua Bazar Gram Panchayat for more than 180 days in the year and, therefore, was not disqualified for being elected as Mukhiya of the said Gram Panchayat. An affidavit was also filed on his behalf, after hearing the parties, the learned Sub-Divisional Officer, by his order dated 29-4-1978 upheld the objection raised by respondent No. 2 and set aside the order of the Election Officer accepting the nomination paper of Ram Narain Mehta. By another order, he also upheld the objection regarding the acceptance of the nomination papers of the other remaining candidate, namely, Lekhanand Mishra. 2. Being aggrieved by the aforesaid order of the learned Sub-Divisional Officer, Ram Narain Mehta filed an application under Articles 226 and 227 of the Constitution in this Court for quashing the said order by a writ in the nature of certiorari and also for restraining the holding of the election for the post of Mukhiya of Balua Bazar Gram Panchayat which was going to be held on 25-7-1976. This application was filed on 5-5-1978 and was numbered as C.W.J.C. No. 1093 of 1978. It was listed for admission on 9-5-1978 on which date a Bench of this Court admitted the application and stayed the declaration of the result of the election of the office of the Mukhiya of the Balua Bazar Gram Panchayat. It, however, appears that on 5-5-1978 itself, in accordance with the provisions of Rules 26 and 27 of the Election Rules, the Election Officer declared Lakshmi Narain Gurmaita, who was respondent No. 1 in the aforesaid writ petition and who was the only duly nominated candidate for the post in view of the order of the Sub-Divisional Officer dated 27-4-1978, duly elected Mukhiya of the said Gram Panchayat. Cause was shown on behalf of the respondents and the writ application was heard by a learned Single Judge of this Court. 3. At the hearing of the aforesaid writ application a preliminary objection to the maintainability of the writ application was raised on behalf of the respondents. Cause was shown on behalf of the respondents and the writ application was heard by a learned Single Judge of this Court. 3. At the hearing of the aforesaid writ application a preliminary objection to the maintainability of the writ application was raised on behalf of the respondents. The contention was that as the election petition under Rules 70 and 82 of the Election Rules could be filed before the Election Tribunal for setting aside the election of respondent No. 1 on the ground of improper rejection of the nomination papers of the writ petitioner, an alternative remedy for the redress of the grievance of the petitioner provided by the statute itself was available to the writ petitioner and therefore, in view of the provisions of Art. 226 (3) of the Constitution, this Court had no jurisdiction to entertain the aforesaid writ application. The learned single Judge overruled this preliminary objection. He further held that the learned Sub-Divisional Officer acted illegally in rejecting the nomination paper of the appellant merely on the ground the he was recorded as a voter within the jurisdiction of two Gram Panchayats and his finding that the petitioner was not a resident of Balua Bazar Gram Panchayat for the requisite period was also illegal. The learned Single Judge accordingly, allowed the writ application and set aside the election of respondent No. 1 to the office of Mukhiya and directed the Sub-Divisional Officer who was respondent No. 3 to the writ petition to decide afresh the question whether the nomination paper of the writ petitioner and Lekhanand Mishra who was respondent No.5 was valid or not and to hold the election for the office of Mukhia only after the fresh determination Lakshmi Narain Gurmaita (respondent No. 1) appeals. 4. The finding of the learned Single Judge that the order of the learned Sub-Divisional Officer rejecting the nomination paper of respondent No. 1 was erroneous in law and, therefore, fit to be set aside, was not impugned before us and I also see no reason to differ from the conclusion of the learned Single Judge on the merits of the case. The sole contention advanced on behalf of the appellant is that the learned Single Judge erred in overruling the preliminary objection to the maintainability of the writ petition. The sole contention advanced on behalf of the appellant is that the learned Single Judge erred in overruling the preliminary objection to the maintainability of the writ petition. Therefore, the only question which we have to determine in this appeal is whether the jurisdiction of this Court to entertain the writ application was barred in view of the provisions of Art.226 (3) of the Constitution incorporated by the 42nd Constitution Amendment Act. Article 226 (3) runs thus :- "No petition for the redress of any injury referred to in sub-cl. (b) or sub-cl- (c) of cl. (1) shall be entertained it any other remedy for such redress is provided for by or under any other law for the time being in force". The argument advanced is that this Court had no jurisdiction to entertain the writ application as another remedy for the redress of the injury done to the petitioner by the alleged illegal rejection of his nomination, viz. an election petition, was available to the writ petitioner when this Court entertained the writ petition. The writ application. If is urged, was entertained by this Court on 9-5-1978 when it applied its mind to the writ application for the first time and on that date the writ petitioner had another remedy available to him, namely, the remedy by election petition under Rules 70 and 82 of the Election Rules in which the question whether or not the nomination paper of the writ petitioner had been wrongly rejected by the Sub-Divisional Officer, could also be decided and relief given to the writ petitioner by setting aside the election. Though the learned counsel for the respondent No. 1 has contended to the contrary, I will assume that the application was entertained only on 9-5-1978 when this Court applied its mind to the writ petition and issued the rule. 5. Now, a case is instituted on the date it is filed and, therefore, the aforesaid writ application was instituted on 5-5-1978. The result of the above election was declared on 5-5-1978. There is no evidence whether the result was declared before or after the filing of the writ application. Now a plea that in view of the provisions of Art.226 (3) this Court had no jurisdiction to entertain the application is a special plea in bar and the burden lies on the person raising the plea to substantiate it. There is no evidence whether the result was declared before or after the filing of the writ application. Now a plea that in view of the provisions of Art.226 (3) this Court had no jurisdiction to entertain the application is a special plea in bar and the burden lies on the person raising the plea to substantiate it. Therefore, in the absence of any evidence on the point, we have to proceed on the footing that at the time the application was filed the result of the election had not been declared and that the declaration of the result of the election was an event subsequent to the institution of the writ application. That being so at the time the aforesaid writ application was filed or instituted, the alternative remedy by way of an election petition was not open to the writ petitioner, though it was available to the writ petitioner on 9-5-1978 when this Court entertained this writ application. The question, therefore, is whether the existence of the alternative remedy has to be determined with reference to the date 9-5-1978 on which the application was entertained or with reference to the date 5-5-1978 when it was filed. 6. It is well settled that the general rule is "that a suit must be tried in all its stages on the cause of action as it existed at the date of its commencement." Rai Charan V/s. Biswanath (AIR 1915 Cal 103). See also Doorga Prosad Chamarias case (AIR 1945 PC 62) in which their Lordships of the Judicial Committee of the Privy Council expressed the opinion "that the relief claimed in the suit must be confined to matters existing at the date when the suit was instituted". Of course, as recognised in Rai Charans case (supra) "a court may take notice of events which have happened since the institution of the suit and afford relief to the parties on the basis of the altered conditions", but as pointed out by their Lordships of the Calcutta High Court in that case "this doctrine is of an exceptional character and is applied in cases where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate, or that it is necessary to base the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties". In Chunilal Khushaldas V/s. H.K. Adhyaru, AIR 1956 SC 655 there is the following observation :- "Even though an appeal is in the nature of a re-hearing and the Courts in this country can take into account the facts and events which have come into existence after the decree appealed against, it could be only for moulding the relief to be granted in the appeal". These principles are applicable to a proceeding like an application under Articles 226 and 227 of the Constitution. Therefore in such a proceeding also, the Court must confine itself to the state of facts existing on the date of commencement of the action, namely, the date of filing of the writ application and the court may take notice of the events which have happened since the institution of the case only in order to shorten litigation or to do complete justice between the parties or for moulding the relief to be granted in the case. 7. The learned single Judge has taken note of the subsequent event, the declaration of the result of the election, to mould the relief granted to the writ application. If I may say so with respect, he was clearly right in doing so, as it was necessary to take note of the declaration of the result and to set aside the election in order to grant effective relief to the writ petitioner on the basis of the findings arrived at. But must this court take notice of that subsequent event also to decide whether or not it has jurisdiction to entertain the writ application? As I have said, the general rule is that the determination must be based on the state of things existing at the date of the commencement of the action. The departure from the general rule is permitted only in order to shorten litigation or to do complete justice between the parties. 8. Now, if the court takes notice of the subsequent event, viz, the declaration of the result and holds that the writ application is barred on the ground of availability of the alternative remedy of election petition, this Court instead of preventing would be promoting multiplicity of actions. 8. Now, if the court takes notice of the subsequent event, viz, the declaration of the result and holds that the writ application is barred on the ground of availability of the alternative remedy of election petition, this Court instead of preventing would be promoting multiplicity of actions. The writ application having been dismissed on the ground of existence of an alternative remedy, the petitioner would be driven to institute a fresh action by way of election petition and the parties would have to litigate afresh the points which they have already litigated and which could well have been decided in the present writ application. Further, it is highly unjust that though at the time the applicant filed this application, he had no choice of remedies as the alternative remedy by way of election petition was not available to him on the date of filing, his writ application should be thrown out on the ground of existence of the alternative remedy which has become available to him later. Justice requires that the material time with respect to which the question of maintainability of the writ petition be determined be the time when he filed the writ petition and not when the writ petition was put up for orders, preliminary or final, an event over which the writ petitioner has no control. Therefore, for the purpose of determining the question of jurisdiction of this Court, the subsequent event, declaration of the result of the election should not be taken into consideration. At the time of filing of the writ application, the alternative remedy by way of election petition was not available to the writ petitioner and therefore, it cannot be held that the writ application was not maintainable. In Sheodeo Sigh V/s. State of Bihar, ( AIR 1980 Pat 20 ) repelling the argument that the writ application filed by the petitioner by which he had impugned the validity of the order of the Sub-Divisional Officer rejecting his nomination paper for the post of Sarpanch of a Gram Panchayat was barred under Article 226 (3) of the Constitution, a learned single Judge of this Court observed : "between the period a nomination has been rejected and the date on which the declaration is made under Rule 27, the person aggrieved having no remedy provided under the Rules can clearly come to this Court under Articles 226 and 227 of the Constitution". If, as I have held, the application must have been deemed to have been filed before the declaration of the result of the election under Rule 27 was made and for the purpose of deciding the question of jurisdiction the subsequent event, namely, the declaration of result of the election should not be taken into consideration, it is clear the writ application was not barred by Article 226 (3). 9. Further, Article 226 (3), being a provision ousting the jurisdiction of this Court in the circumstances mentioned therein, must be strictly interpreted. See the decision of a bench of this court Ranchi Club V/s. State of Bihar ( AIR 1978 Pat 32 ). See also the Full Bench decision of the Gujarat High Court in Abad Cotton Mfg. Co. V/s. Union of India ( AIR 1977 Guj 113 ). The expression "remedy for such redress" occurring in Articles 226 (3) must, therefore, be confined to such other remedy as is capable of giving as valid and effectual redress is the remedy under Article 226 of the Constitution. Or in other words, the alternative remedy to bar jurisdiction of this Court under Article 226(3), must be a remedy which would give to the writ petitioner the precise available under Article 226 and must be equally beneficial and effectual. This position is clearly settled. To bar the jurisdiction, the alternative remedy, it was held by the Andhra Pradesh High Court "must be truly and really capable of giving such relief as is postulated in sub-cls. (b) and (c) of Article 226" (per A. Sambasiva Rao, J. in Govt. of India V/s. National Tobacco Co., AIR 1977 Andh Pra 250 at Pp. 260-61) (FB). Speaking for the Full Bench of the Gujarat High Court in Abad Cotton Mfg. Co. V/s. Union of India ( AIR 1977 Guj 113 ) Mehta, J. declared "Even though the words any other remedy had been used, it is obvious that any other remedy has to be for redress of the injury for which this writ jurisdiction is conferred and, therefore, it must be equally adequate or efficacious so that qualitatively and quantitatively the same relief would be given for redress of the injury to the petitioner. Therefore, the adequate efficacious remedy is always implicit if the remedy is to be for redressing the injury as effectively as could be done in the writ petition" (at page 123 of the report). 10. Now, can it be said that by an election petition "qualitatively and quantitatively the same relief would be given for redress of the injury to the petitioner" as he would have or has been able to obtain in the writ petition under Article 226 of the Constitution? The answer, in my opinion, is clearly in the negative. As I have already stated, at the time the petitioner filed the writ petition, the result of the election had not been declared and the election, therefore, had yet to be held. One of the principal reliefs claimed in the petition was for restraining the holding of the election for the post of Mukhiya, without the petitioner as a candidate for the same. To use the words of Wallace, J. in Madras, Sarvothama Rao V/s. Chairman. M.C. Saidapet (AIR 1923 Mad 475) ".........any posts election remedy is wholly inadequate to afford the relief which the petitioner seeks namely, that this election, now published be stayed until it can be held with himself as a candidate. It is no consolation to tell him that he can stand for some other election. It is no remedy to tell him that he must let the election go on and then have it set aside by petition and have a fresh election ordered. The fresh election may be under altogether different conditions and may bring forward an array of fresh candidates. The petitioner can only have his proper relief if the proposed election without him is stayed until his rejected nomination is restored" (at page 479 of the report). The view of Wallace, J. that any post election remedy in the circumstances is not an adequate and effective remedy and not a real substitute for an order quashing the order rejecting the nomination paper of the petitioner and a direction to hold the election with the petitioner as a candidate was also shared be Schwabe, C.J. the other member of the Division Bench of Madras High Court in that case. Schwabe, C.J., observed in that case "I do not think that the law is such the plaintiff must wait until the election is held and then bring an election petition which is bound to succeed, nor indeed would that remedy give him all that he is entitled to, because after the election petition had succeeded there would have to be fresh nominations and there might be other candidates in the field that he would not now have to meet, to say nothing of the trouble and expenses that he would necessarily be put to" (at page 476 of the report). In the present case also, if this petitioner were to file an election petition and the election petition were to succeed, there would have to be fresh election, "there might be other candidates in the field that he would not now have to meet and to say nothing of the trouble and expenses that he would necessarily be put to". The aforesaid observations of Wallace, J. were referred to with approval by a Bench of the Calcutta High Court in Upendra Nath V/s. Tara Nath (sic) (Narendra Nath V/s. Bally Municipality) ( AIR 1962 Cal 53 ). 10A. I am conscious that a contrary view has been expressed by Sanderson, C.J. in two decisions of the Calcutta High Court reported in AIR 1924 Cal at pages 454 and 761, respectively. But for his conclusion that a candidate whose nomination paper had been illegally rejected had a specific and adequate remedy by way of an election petition at which the authority duly constituted could hear the election petition and set aside the election on the ground of the rejection paper of his nomination paper, his Lordship did not give any reasons and in coming to that conclusion, did not advert to the various considerations set out in the aforesaid observations of Schwabe, C.J. and Wallace, J. in the case referred to above which make that remedy not an effective and adequate remedy. I must, therefore, express my respectful disagreement with that view. I, therefore, hold that the remedy by way of an election petition to the petitioner was not a remedyfor such redress within the meaning of the expression as used in Article 226 (3) of the Constitution, as the petitioner could and was able to obtain by the writ petition. 11. I must, therefore, express my respectful disagreement with that view. I, therefore, hold that the remedy by way of an election petition to the petitioner was not a remedyfor such redress within the meaning of the expression as used in Article 226 (3) of the Constitution, as the petitioner could and was able to obtain by the writ petition. 11. In support of his contention that the present writ petition was not maintainable, the learned Advocate for the appellant placed reliance on the decision of the Full Bench of this Court in Ram Naresh Rai V/s. State of Bihar, (1978 BBCJ (HC) 677 : ( AIR 1979 Pat 130 ) holding that the existence of a remedy by way of an election petition under the election Rules bars the jurisdiction of this Court to entertain a writ petition under Article 226 for setting aside the election held or purported to have been held under the Election Rules. The learned counsel for the appellant also relied on the decision of this Court in Letters Patent Appeal No. 17 of 1978 disposed of on 2-3-1979 in which a Bench of this Court on an appeal presented under the Letters Patent held that the election petition filed by Lekhanand Mishra against the improper rejection of the nomination was not maintainable as it was barred by Article 226 (3) of the Constitution as he had the alternative remedy by way of election petition under the Election Rules. Both these cases are in my opinion, clearly distinguishable because in both of them the writ petitioner had filed the writ petition after the result of the election had been declared and on the date of filing the application he could have availed of the remedy by way of an election. 12. For the aforesaid reasons, it must be held that the learned single Judge was right in holding that the writ petition was not barred by Article 226 (3) of the Constitution. The sole contention on behalf of the appellant must, therefore, be rejected. 13. 12. For the aforesaid reasons, it must be held that the learned single Judge was right in holding that the writ petition was not barred by Article 226 (3) of the Constitution. The sole contention on behalf of the appellant must, therefore, be rejected. 13. As the appeal must be dismissed on the aforesaid finding, it is not necessary to consider the other contention advanced by Sri Sanyal the learned Advocate for the respondents, namely, that the election of the appellant being a nullity for contravention of the principles of natural justice by the Sub-Divisional Officer (respondent No. 3) in disposing of the objection petition filed against the acceptance of the nomination paper of the writ petitioner on a ground not legally tenable, the remedy by way of election petition was not available. 14. I would, accordingly, dismiss the appeal. In the circumstances of the case, however, there will be no order as to costs of this appeal. S.SARWAR ALI, J. 15 I agree.