Om Prakash Yadav v. Collector, Etah — 1990 DIGILAW 1173 (ALL)

JUDGMENT R. A. Sharma, J. 1. Petitioner was elected as Pramukh of Kshetra Samiti Nidhauli Kala disirict Etah in 1988. A notice of motion of no-confidence against the petitioner, was moved under section 15 of the U. P. Kshetra Samiti and Zila Parishad Adhiniyam 1961 (hereinafter referred to as the Act) on 28-6-1990. Collector Etah issued a notice dated 7-7-1990 fixing 23-7-90 as the date of meeting in which aforesaid motion was to be considered by the Kshetra Samiti. It is against this order of Collector, fixing date of meeting for consideration of motion of no-confidence, that the petitioner has filed this writ petition. 2. At the time this writ petition was filed this court granted stay order, whereby meeting was allowed to take place on 23-7-1990, but it was directed that the result shall not be given effect to. Meeting was accordingly held on 23-7-1990 in which out of total 95 members of Gaon Sabha 65 attended the meeting and out of 65, 62 voted against the petitioner while 3 were in his favour. In this manner the motion of no-confidence has been passed against the petitioner by vast majority. Sri Abhai Singh Yadav has moved an application in this writ petition for impleadment on the ground that, he was one of the persons who signed the notice of motion of no-confidence and had presented it before the Collector and he being necessary party is liable to be impleaded. We have allowed this application on 27-11-1990 and impleaded Sri Abhai Singh Yadav as one of the respondents in this writ petition. We have also accepted the counter-affidavit filed by Sri Abhai Singh Yadav. The petititioner has also filed rejoinder-affidavit in reply thereto. We have heard learned counsel for the petitioner, learned counsel for Sri Abhai Singh Yadav and learned standing counsel and the writ petition is being disposed of in accordance with Rules of the court. 3. We have also accepted the counter-affidavit filed by Sri Abhai Singh Yadav. The petititioner has also filed rejoinder-affidavit in reply thereto. We have heard learned counsel for the petitioner, learned counsel for Sri Abhai Singh Yadav and learned standing counsel and the writ petition is being disposed of in accordance with Rules of the court. 3. The learned counsel for the petitioner has challenged the holding of the meeting in pursuance of the aforesaid order of the Collector on the ground that under section 15 (3) (ii) of the Act a notice of not less than 15 days of such a meeting is required to be given by Collector which has not been done In as much as the notices were despatched on 9-7-1990 and from this date meeting of 23-7-1990 is in a period which is less than 15 days. Learned counsel for Sri Abhai Singh Yadav has, on the other hand, apart from disputing the claim of the petitioner about despatch of notices on 9-7-1990, argued that meeting was held on 23-7-1990 and the result was declared, from which it is clear that motion of no-confidence has been passed, against the petitioner, by thumping majority, and further that the writ is not maintainable in as much as the petitioner has not impleaded the persons who have signed the notice of motion of no-confidence and the persons who had presented the said motion to the Collector. 4. In support of his argument the learned counsel for petitioner has placed, before us, three postal receipts, which have been filed as Annexure-2 to the writ petition in order to demonstrate that the notices were despatched on 9-7-1990. Learned counsel for Sri Abhai Singh Yadav has, on the other hand, contested the claim of the petitioner that the notices were despatched on 9-7-1990 and in this connection the learned counsel has invited our attention to the same annexure-2 to the writ petition in order to show that the notice of meeting was in fact despatched on 7-7-1990, but another seal of 9-7-1990 has been affixed on the old seal of 7-7-1990. Learned counsel for respondent has also placed before us, postal receipts of 7-7-1990 in order to show that notices were despatched on 7-7-1990. Learned counsel for respondent has also placed before us, postal receipts of 7-7-1990 in order to show that notices were despatched on 7-7-1990. Learned counsel for petitioner, while disputing the claim of the respondent, has relied upon two affidavits of Branch Post Master Bhagipur district Etah, and one of the affidavits is addressed to the District Magistrate Etah, which has been annexed as annexure-1 to the rejoinder-affidavit. In this affidavit it has been mentioned that notices were despatched on 9-7-1990. By another affidavit, which has been addressed to this court and filed alongwith supplementary affidavit by petitioner, the Branch Post Master has repeated the same averments about despatch of notices on 9-7-1990 and not on 7-7-1990. On the other hand, learned counsel for the respondent has produced a photo stat copy of the letter which contains an endorsement by postal authorities to the effect that notices were despatched on 7-7-1990. From the bare perusal of one of the three postal receipts, filed by the petitioner as annexure-2 to the writ petition, it appears that a seal of 9-7-1990 has been affixed on the old seal of 7- 7-1990 ; whereas respondents have filed all the receipts as annexure-1 to the counter-affidavit, which are very clear and there does not appear to be any manipulation in those receipts. Branch Post Master of the post office concerned has shown extra ordinary interest in this dispute in as much as he has filed affidavit before Collector without there being any request or order from him and has also handed over another affidavit to the petitioner addressed to this court, although there is no order from this court to the said official to file an affidavit. Normally government servants do not, at the instance of any private party, give the affidavit unless required by the court. Respondent, Sri Abhai Singh, in his counter-affidavit has filed, as annexure-1, his letter alongwith an endorsement, made by postal authority, in which it has been mentioned that all these notices (95 in number) were despatched on 7-7-1990. Petitioner has not filed any order, certificate, letter of affidavit of postal authorities contradicting aforesaid endorsement of the postal authorities filed by the respondent. Petitioner has not filed any order, certificate, letter of affidavit of postal authorities contradicting aforesaid endorsement of the postal authorities filed by the respondent. When the Branch Post Master can give an affidavit to the petitioner without asking by the court there should not have been any difficulty to the petitioner to obtain another affidavit and file it alongwith rejoinder-affidavit or he could have contradicted it in the same affidavit of Branch Post Master. Nothing of the kind was done which raises suspicion about bonafide and correctness of the contents of the affidavit filed by the petitioner. From perusal of the material on record we are not satisfied with the argument of the learned counsel for petitioner, that notices for meeting were despatched on 9-7-1990 and to us it appears that these notices were despatched on 7-7-1990. 5. That apart, out of total membership of 95, 65 attended the meeting out of whom 62 voted against the petitioner and only 3 in his favour and it is thus clear that the petitioner was voted out by a thumping majority. In such a situation we consider that it will not be proper for us to interfere under Article 226 of the Constitution of India Learned counsel for the petitioner, in this connection, has argued that in the election matters principle of substantial justice does not apply as right to an elected office is statutory right and no one can be removed from office except in accordance with provisions of the statutes. In support of his proposition learned counsel for petitioner has relied upon the decision of Hon'ble Supreme Court in the case of Jyoti Basu v. Debi Ghosal, AIR 1982 SC 983 . Relevant passage from this Judgment, relied upon by the learned counsel for petitioner, is quoted below : "A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and, therefore subject to statutory limitation. An election petition is not an action at Common Law, nor in equity. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and, therefore subject to statutory limitation. An election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket. Thus the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act." There is no doubt that matter pertaining to election are to be settled strictly in accordance with the provisions of statutes and it is not open to import principle of equity in proceeding pertaining to the election disputes. In the instant case, however, there is no dispute about the election and the only question is whether this court in exercise of its equitable discretion any power under Article 226 of the Constitution of India should intervene against resolution of Kshetra Samiti whereby the petitioner has been voted out of the power by thumping majority. Under Article 226 of the Constitution of India this Court does not exercise any power pertaining to the election matters and its jurisdiction is confined only to see as to whether any action of the authorities is in confirmity with law and equity. Power of this Court under Article 226 of the Constitution of India being supervisory in nature equitable principles are enshrined in it. Power of this Court under Article 226 of the Constitution of India being supervisory in nature equitable principles are enshrined in it. Hon'ble Supreme Court in Sangram Singh v. Election Tribunal, AIR 1955 SC 425 has declared that, "That, however, is not to say that the jurisdiction will be exercised whenever there is an error of law. The High Courts do not, and should not, act as Courts of appeal under Article 226. Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognised lines and not arbitrarily; and one of the limitations imposed by the Courts on themselves is that they will not exercise jurisdiction in this class of case unless substantial injustice has ensued, or is likely to ensue. They will not allow themselves to be turned into Courts of appeal or revision to set right mere errors of law which do not occasion injustice." Similarly in Shiv Shanker Dal Mills v. State of Haryana, AIR 1980 SC 1037 the Hon'ble Supreme Court reiterated the same principle when it observed that "Article 226 grants an extraordinary remedy which Is essentially discretionary, although founded on legal injury. It is perfectly open for the court, exercising this flexible power, to pass such order such as public interest dictates and equity projects. Courts of equity may, and frequently do, go much further both to give and withhold relief in furtherance of the public interest than they are accustomed to go where only private interests are involved. Accordingly, the granting or withholding of relief may properly be dependant upon considerations as of public interest..." Even if orders are not in accordance with law and suffers from infirmity this court can decline to exercise its discretionary power under Article 226 of the Constitution of India if it considers that in view of the facts and circumstances of the case no interference is called for. As mentioned above motion of no confidence has been passed against the petitioner by over-whelming majority and interference by this court against such a resolution will amount to restoring office to a person against the will of the majority of the people. In a democretic set-up where right to an office depends on the will of the people a person who has lost majority cannot be permitted to hold the office. In a democretic set-up where right to an office depends on the will of the people a person who has lost majority cannot be permitted to hold the office. We are accordingly of the opinion that it is not a fit case to interfere under Article 226 of the Constitution of India. 6. As we are dismissing the writ petition on other ground it is not necessary for us to consider as to whether persons who have signed the notice and who had presented the same before the Collector are necessary parties or not. For the reasons given above this writ petition Jacks merit and is dismissed with costs. Petition dismissed.