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2009 DIGILAW 807 (ORI)

Ram Kumar Jain v. Ramakanta Goud

2009-10-20

B.P.DAS, I.MAHANTY

body2009
JUDGMENT I. MAHANTY, J. — In the present writ application, the petitioner Sri Ram Kumar Jain has sought to challenge an order dated 29.7.2009 passed by the learned District Judge, Kalahandi-Nuapada at Bhawanipatna in Election Petition No.13 of 2008, rejecting the petitioner’s application for preliminary hearing on the point of jurisdiction. 2. The case of the petitioner is that he was elected as Chairperson to Kesinga NAC and the present election petitioner has sought to challenge the same by filing an election petition No.13 of 2008 before the learned District Judge/Tribunal Kala¬handi-Nuapada at Bhawanipatna. On receiving notice from the Elec¬tion Tribunal, the present petitioner filed a petition on 17.2.2009 praying for adjudicating the issue of maintainability as a preliminary issue on the plea that the election petition was not maintainable in law. 3. Learned counsel for the petitioner submitted that the election petition in challenging the election of ‘Chairperson’ of a Municipal body by way of filing of an election petition before the District Judge/Tribunal is not permissible in law. 4. Sri A.K. Nanda, learned counsel for the Opp.Party No.1 (Election Petitioner) submitted that the writ petitioner had con¬tested for ‘Councillor’ from a general category seat and had been duly elected as Councillor to the Kesinga N.A.C. After the peti¬tioner succeeded in his election as Councillor from a general seat, thereafter he sought to contest the election for “Chairper¬son” of the said NAC, which is reserved for “OBC candidate” on the basis of a caste certificate submitted by him, claiming to be an OBC candidate. It is further averred in the writ petition that the petitioner has duly elected as ‘Chairperson’ of the NAC and has been declared as such by Opposite Party No.2-Election Offi¬cer. The petitioner asserts that Opposite Party No.1 (Election Petitioner) who has been elected as Councillor from Ward No.5 of Kesinga NAC had contested for the post of ‘Chairperson’ but on losing the election, filed an election petition before the learned District Judge/Tribunal, which is the subject matter of challenge on the ground of maintainability. 5. The petitioner asserts that Opposite Party No.1 (Election Petitioner) who has been elected as Councillor from Ward No.5 of Kesinga NAC had contested for the post of ‘Chairperson’ but on losing the election, filed an election petition before the learned District Judge/Tribunal, which is the subject matter of challenge on the ground of maintainability. 5. In course of hearing of the present writ application, since an important question of law arose for consideration, request was made to the learned Advocate General to appear in the matter in order to assist the Court and in particular, to ascer¬tain as to whether an election petition before the District Judge/Tribunal, challenge to an election of Chairperson of the N.A.C. was at all maintainable or not and further, if such elec¬tion petition was held to be not maintainable in law, then, what remedy was available to a person who intends to question or chal¬lenge the election of a Chairperson of the Municipal Body. 6. Sri A. Mohanty, learned Advocate General appearing on behalf of the State submitted that on a plain reading of Section 18 of the Orissa Municipal Act (in short the ‘Act’) as well as Article 243-ZG of the Constitution of India, only those election petitions seeking to challenge the election of a Councillor to a Municipality could be brought before the District Judge/Election Tribunal under Sections 18 and 21 of the Act. For the purpose of convenience, the relevant Article and Sections of the Municipal Act, 1950 are quoted hereunder : “Article 243 ZG.- Bar to interference by Courts in electoral matters- Notwithstanding anything in this Constitution. (a) the validity of any law relating to delimitation of con¬stituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 243 ZF shall not be called in question in any Court; (b) no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.” “18. Power to question election by petition - (1) The election of any person as a Councillor may be questioned petition on the ground. Power to question election by petition - (1) The election of any person as a Councillor may be questioned petition on the ground. (a) that such person committed, during or in respect of the election proceedings, a corrupt practice as defined in Section 28; or (b) that such person was declared to be elected by reason of the improper rejection or admission of one or more votes, or for any other reason was not duly elected by a majority of lawful vote; or (c) that such person though enrolled as an elector was disquali¬fied for election under the provisions of Sections 15, 16 and 29. (2) The election of any person as a Councillor shall not be questioned- (a) on the ground that the name of any person qualified to vote has been omitted from or the name of any person not qualified to vote has been inserted in the electoral roll; (b) on the ground that an non-compliance with this Act or any rule or of any mistake in the forms required thereby or of any error, irregularity or informality on the part of the office or officers charged with carrying out the provisions of this Act or any rules, unless such non-compliance mistake, error, irregulari¬ty or informality has materially affected the result of the election.” “21. Tribunal- (1) An election petition shall be heard by the District Judge within whose jurisdiction the Municipality area is situated. (2) Such District Judge (hereinafter referred to as “Tribu¬nal”) shall be deemed to exercise jurisdiction as persona desig¬nate and not acting in capacity of a Judge of a Civil Court.” Learned Advocate General submitted that in view of the aforesaid constitutional provision, as well as the provisions made by the Legislative Assembly by enacting the Act, an election petition seeking to challenge the election of a Chairperson to a municipal body before the District Judge/Tribunal may not be per¬missible in law. Yet, in course of hearing, Sri Mohanty drew the Court’s attention to Section 57 of the Municipal Act which is quoted hereunder : “57. Yet, in course of hearing, Sri Mohanty drew the Court’s attention to Section 57 of the Municipal Act which is quoted hereunder : “57. Civil Court not to grant temporary injunctions in certain cases - No Civil Court shall, in the course of any suit, grant any temporary injunction or make any interim order - (a) restraining any person from exercising the powers of performing the functions or duties of a Member, Chairperson, Vice-Chairperson officer or servant of a Municipality or of a Committee or Sub-Committee of Municipality on the ground that such person has not been duly elected appointed as such member, Chairperson, Vice-Chairperson officer or servant; or (b) restraining any person or persons or any such Municipality or Committee or Sub-Committee of a Municipality from holding any election, or from holding any election in any particular manner.” In the light and scope of Section 57 of the Act as quoted hereinabove and in view of the constitutional limitation, imposed by Article 243 ZG as well as Section 18 of the Act, Sri Mohanty learned Advocate General suggested that, in the present case, only a challenge the election of a ‘Councillor’ to Municipal body, is permissible by way of filing of an election petition under Section 18 read with Section 21 of the Act before the Election Tribunal. But, if a person is aggrieved by any other election, such as an election by the councillors for a ‘Chairperson’ of the council, the same though not permissible before the Election Tribunal, yet, in terms of the Section 57 of the Act, there ap¬pears to be no bar to the Civil Court from entertaining such challenge. In other words, Sri Mohanty, the learned Advocate General submitted that, in so far as challenge to the election of ‘councillors’ of municipal bodies, is concerned, the forum pre¬scribed in the Act, is the District Judge/Election Tribunal. In other words, Sri Mohanty, the learned Advocate General submitted that, in so far as challenge to the election of ‘councillors’ of municipal bodies, is concerned, the forum pre¬scribed in the Act, is the District Judge/Election Tribunal. But in so far as election to the office of “Chairperson” of the Municipality is concerned, although Section 57 of the Act pre¬scribes that no Civil Court shall, in the course of any suit, grant any “temporary injunction” or make any interim order re¬straining any person from exercising the powers of performing the functions or duties of a Member, Chair person on the ground that such person has not been duly elected, yet, there is no embargo in the Orissa Municipal Act which prohibits the aggrieved party from questioning the election of a Chairperson by way of filing a declaratory suit before the appropriate Civil Court. Sri Mohanty, further submits that if a purposive interpreta¬tion is given to Sections 18 and 57 of the Act, it would be clear that while the election of a Councillor may be challenged before the District Judge/Tribunal, the election of a Chairperson of a Municipality may be challenged before the competent Civil Courts, even though such Civil Court is statutorily barred from passing any temporary injunction, since the office bearers of such public bodies discharge public duties, therefore, while the election of a Chairperson, is permissible before the competent Civil Court, even though such Civil Court shall be bound by the statutory bar under Section 57 of the Act and may not grant any temporary injunction or any interim order restraining the elected person from exercising his powers or performing the functioning of the duties under the statute. 7. Mr. Nanda, learned counsel for Opposite Party No.1 refers to the judgment of the Hon’ble Supreme Court in the case of Jaspal Singh Arora v. State of M.P. and others, (1998) 9 Supreme Court Cases 594. In the said judgment, the Hon’ble Su¬preme Court while considering the provisions of the M.P. Munici¬pal Act came to conclude that the mode of challenging the elec¬tion by an election petition had been provided under the said Act, covering such election and, therefore, such election could not be called in question except by an election petition as provided under that Act. Accordingly, Their Lordships concluded that the bar to interference by Courts in electoral matters contained in Article 243-ZG of the Constitution was apparently overlooked by the High Court in allowing the writ petition. 8. The fact situation that arises for consideration in the present case is distinctly different while Section 18 and 21 of the Act does provide the forum for challenge of an election of a ‘Councillor’ to a Municipal Body, these provisions do not cover a challenge to the election of a ‘Chairperson’ of such Municipal Body, and therefore, the same is covered by Section 57 of the Act. Therefore, for challenge to the election of ‘Chairperson’, an aggrieved party may move the Civil Court. Since both Sections 18 and 57 of the Act have been provided for by the State Legislature in the Municipal Act itself, the constitutional embargo imposed by Article 243-ZG, has been duly complied by the Legislature. 9. On consideration of the submissions made as noted hereinabove, we are of the clear view that it is well settled proposition of law that no person can be left remedy-less. There¬fore, while the State Legislature by enacting Sections 18 and 21 of the Orissa Municipal Act, 1950 as provided for the Forum to challenge of the election of a Councillor i.e. District Judge/Election Tribunal, yet, though no specific forum has been provided for under the Act, challenge to the election of a ‘Chai¬rperson’ may take place under Section 57 of the Act by initiating civil suits, questioning the election of office bearer of a Municipality including that of a Chairperson, even while the selfsame statute i.e. the Municipal Act restricts the jurisdic¬tion of such Civil Court from passing temporary injunction or interim orders restraining such elected persons from exercising the powers or performing functions or duties as Chairperson or Officer of such Municipality. 10. In the light of what has been noted hereinabove, while giving a purposive interpretation to the provisions of the Act vis-a-vis the constitutional embargo provided under Article 243-ZG, we are of the considered view that the Election Petition filed by the Opposite Party No.1 seeking to challenge the writ petitioner’s election as ‘Chairperson’ to Kesinga N.A.C., by way of filing the election petition under Section 18 of the Act, is not maintainable and beyond the jurisdiction of the Election Tribunal. Accordingly, we set aside the order of the learned Dist. Accordingly, we set aside the order of the learned Dist. Judge, Kalahandi-Nuapada at Bhawanipatna dated 29.7.2009 and hold that Election Petition No.13 of 2008 pending before the District Judge, Kalahandi Nuapada at Bhawanipatna is not main¬tainable and beyond its jurisdiction. Before parting, we may observe that it shall be open for the Opposite Party No.1 (Election Petitioner), if so advised, to file an appropriate declaratory suit before the competent Civil Court having jurisdiction over the matter and if the Opposite Party files such a suit before a Civil Court of competent juris¬diction, such Court shall do well to deal with the matter expedi¬tiously and take steps to dispose of the matter within a period of six months from the date of filing of such civil suit in accordance with law and without being influenced in any manner by any of the observations made herein. The writ petition is allowed to the extent indicated herei¬nabove. B.P. DAS, J. I agree. Petition allowed to the extent indicated.