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2016 DIGILAW 1729 (RAJ)

Babulal v. Kishansahay

2016-12-01

VEERENDR SINGH SIRADHANA

body2016
JUDGMENT : Veerender Singh Siradhana, J. 1. By order dated 22nd October, 2016, the Court of Additional District Judge No. 3, Alwar, quashed and set aside the election of the appellant in an election petition instituted by the non-appellant No. 1 - Kishansahay; of which the appellant is aggrieved of. 2. Shorn of unnecessary details, the essential skeletal material facts are that the appellant was declared elected as Ward Member (Parshad) of Ward No. 42, Nagar Parishad, Bhiwari. His election thereafter was subjected to challenge by one of the unsuccessful candidates, who participated in the election process. The assailment was on the ground of wrong information furnished in the declaration form by the appellant, with reference to his number of children, for he had more than two children after the cutoff date. The Court of Additional District Judge No. 3, Alwar, by the impugned judgment and order dated 22nd October, 2016, allowed the election petition. 3. Learned counsel for the appellant, Mr. Naveen Dhuwan, has argued only on the issue of 'jurisdiction' for the Additional District Judge No. 3, Alwar, did not have the jurisdiction to deal with the election petition filed under Section 31 of the Rajasthan Municipalities Act, 2009 (for short "the Act of 2009"). In support of his submissions, he has strongly relied upon the opinion of a Division Bench of this Court in the case of Babu Lal Jain Versus The District Judge & Ors.: D.B. Special Appeal (Writ) No. 710/2016, decided on 21st November, 2016 and Smt. Jeevani Bano Versus Smt. Asha Arora & Ors.: AIR 1997 Raj. 261 : 1997 (3) WLC 111 . 4. According to the learned counsel, the election petition questioning an election of a member of Municipality could be instituted only before the District Judge having the territorial jurisdiction over the municipal area in question. It is further contended that an appeal is provided from an order of the District Judge to this Court under Section 32 of the Act of 2009. Further, the election of a Chairperson and Vice-Chairperson can be called in question under Section 44 of the Act of 2009, before the jurisdictional District Judge, over the municipal area. The proviso vests power in the District Judge, for reason to be recorded in writing, to transfer the same for hearing and disposal to a Judge subordinate to him. Further, the election of a Chairperson and Vice-Chairperson can be called in question under Section 44 of the Act of 2009, before the jurisdictional District Judge, over the municipal area. The proviso vests power in the District Judge, for reason to be recorded in writing, to transfer the same for hearing and disposal to a Judge subordinate to him. For no such proviso is contemplated to Section 31 of the Act of 2009; thus, the legislature intendment is in unequivocal terms to the effect that the election of a member of municipal area, is to be laid and heard by the District Judge alone. For there was no reason why such a proviso could not be retained under Section 31 of the Act of 2009. 5. Per contra; Mr. Shyam Kant Sharma, learned counsel appearing on behalf of the non-appellant, while supporting the impugned judgment and order dated 22nd October, 2016, asserted that election for Member (Parshad) of Ward No. 4, Nagar Parishad, Bhiwari, was held on 22nd November, 2014, and the result was declared on 25th November, 2014, wherein the appellant was declared successful. Learned counsel would submit that the election petition was rightly instituted by the respondent No. 1, on valid grounds, which has been allowed by the Court of the Additional District Judge No. 3, Alwar. 6. Learned counsel would further contend that Section 10 of the Rajasthan Civil Courts Ordinance, 1950 (for short "Ordinance of 1950"), specifically contemplates to the effect that any Additional Judge shall discharge any of the functions of a District Judge which the District Judge may assign to him and in the capacity of those functions, he shall exercise the same power as the District Judge. Therefore, the impugned judgment and order cannot be faulted. Furthermore, in somewhat similar factual matrix, Orissa High Court in the case of Sarat Chandra Mukhi Versus Unknown: W.P. (C) No. 5736 of 2009, decided on 17th August, 2009; declined similar challenge to the election of a Councilor under the Orissa Municipal Act, which contains provisions pari materia, as would be evident from the judgment and order dated 17th August, 2009. 7. 7. The appellant after having subjected himself to the jurisdiction of the Additional District Judge No. 3, Alwar, and having contested the election petition without any objection as to the jurisdiction, which is now sought to be raised in the instant appeal, is precluded to raise such a plea, and therefore, the appeal merits rejection on that count as well. 8. I have heard the learned counsel for the parties and with their assistance, perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar. 9. The factual matrix is not a dispute. The appellant successfully participated in the election process for election as a Member (Parshad) from Ward No. 42, Nagar Parishad, Bhiwari, on 22nd November, 2014. He was declared successful having secured maximum votes on 25th November, 2014. His election was questioned by institution of an election petition on 17th December, 2016, before the District Judge, Alwar. The District Judge, Alwar, transferred the election petition to the Court of Additional Civil Judge (Senior Division) No. 2, Alwar. Later on, it was transferred to the Court of Additional District Judge No. 3, Alwar, by the order of the District Judge, Alwar. 10. The controversy raised in the appeal, as to jurisdiction, may not detain this Court for long in view of the adjudication by the Division Bench of this Court in the case of Babu Lal Jain (supra). 11. Undeniably, the appellant and respondent No. 1, was one of the candidates for election as Ward Member from Ward No. 44, Nagar Parishad, Bhiwari. The election was conducted on 22nd November, 2014, and the appellant was declared successful on 25th November, 2014. The election petition instituted before the District Judge, Alwar, on 17th December, 2014, was transferred to the Court of Additional Civil Judge (Senior Division) No. 2, Alwar, on 5th January, 2015. Later on, to the Court of Additional District Judge No. 1, Alwar, vide order dated 10th February, 2015, made by the District Judge, Alwar. 12. The election petition instituted before the District Judge, Alwar, on 17th December, 2014, was transferred to the Court of Additional Civil Judge (Senior Division) No. 2, Alwar, on 5th January, 2015. Later on, to the Court of Additional District Judge No. 1, Alwar, vide order dated 10th February, 2015, made by the District Judge, Alwar. 12. The Division Bench of this Court in the case of Babu Lal Jain (supra), dealing with the very same controversy in the backdrop of Section 10 of Ordinance of 1950 so also in view of text of Section 44 of the Act of 2009, held thus: "In the nature of the controversy it is considered appropriate to set out the relevant extracts of the statutory provisions of Sections 31 and 44 of the Act as follows:- "31. Election Petition.- (1) The election of any person as a member of a Municipality may be questioned by an election petition filed within one month from the date of election before the District Judge having territorial jurisdiction over the municipal area on one or more of the following grounds, namely:- 44. Determination of validity of election of Chairperson or Vice-Chairperson.- (1) The election of a Chairperson or Vice-Chairperson under Sec. 43 shall not be called in question except by an election petition presented to the District Judge having territorial jurisdiction, over the municipal area; Provided that where an election petition is presented as aforesaid to a District Judge, he may, for the reasons to be recorded in writing, transfer the same for hearing and disposal to a Judge subordinate to him. Explanation.- The District Judge or any other Judge to whom an election petition is or transferred and by whom it is heard in accordance with the provisions of this Section is hereinafter referred to as the Judge." Undoubtedly Section 10 of the Ordinance provides that the District Judge for purposes of speedy disposal, may transfer a case to an Additional District & Sessions Judge. But, if there is any conflict with the provisions of Part IXA of the Constitution introduced by the 74th Amendment, more particularly Article 243(Z)(A) dealing with election to municipalities empowering the Legislature of a State to make law with regard to all matters in connection with elections to the municipality, the former will have to give way to the latter. But, if there is any conflict with the provisions of Part IXA of the Constitution introduced by the 74th Amendment, more particularly Article 243(Z)(A) dealing with election to municipalities empowering the Legislature of a State to make law with regard to all matters in connection with elections to the municipality, the former will have to give way to the latter. Section 7 of the Act provides that the term of a municipality shall be for five years. Section 43(11) of the Act provides that the term of the office of a Chairperson or Vice-Chairperson will correspond with the term of the municipality. Section 11 of the Act provides for elections to the municipality. Section 13 of the Act provides for an electoral roll for every ward and also provides who shall be eligible to vote. Since a Member is elected by direct vote under Section 25 of the Act, apparently the Legislature thought it important that if the Membership of a person elected reflecting the will of the electorate was called into question, none other than the District Judge himself should hear the matter. Section 30 of the Act provides that no Civil Court shall have jurisdiction to entertain or adjudicate any question relating to election and which can be done only in an election petition presented in accordance with the Act. Once a person has been elected as Member or as Chairperson or Vice-Chairperson he can be removed on any of the grounds mentioned in Section 39 of the Act. By virtue of the Rajasthan Municipalities (Election)(Amendment) Rules, 2014, published in the Gazette on 11.07.2014, a person elected as a Member is eligible to be considered for election as a Chairman under Rule 79. Similarly, a person elected as a Member is eligible to contest to the post of Vice-Chairman. But if the election of the Member or Chairperson or Vice-Chairperson is to be called into question it can be only way of an election petition under Section 31 and 44 of the Act respectively. If the election of a Chairperson or Vice-Chairperson is challenged successfully he still retains his Membership of the Municipality. But if he loses his status as elected Member of the Municipality, the loss of status as Chairperson or Vice-Chairperson is automatic without the need to challenge it separately. If the election of a Chairperson or Vice-Chairperson is challenged successfully he still retains his Membership of the Municipality. But if he loses his status as elected Member of the Municipality, the loss of status as Chairperson or Vice-Chairperson is automatic without the need to challenge it separately. In the circumstances, the Legislature thought it proper that in the former case if the Membership itself was an issue the power should remain with the District Judge alone while in the latter case the District & Sessions Judge can transfer the case to any other Additional District & Sessions Judge. This is the reason for insertion of the proviso to Section 44 of the Act which is otherwise absent in Section 31. If the Legislature had desired that an election petition questioning Membership could also be either tried by the District & Sessions Judge or transferred to another Additional District & Sessions Judge, there is no reason why the Legislature could not have made that specific incorporation in Section 31 itself alike Section 44 of the Act. The first principle of interpretation is to read the statute as it is and decipher the intention of the Legislature. If the language of the statute is clear and admits of no ambiguity, there is no occasion for the Court to read something into the statute which the Legislature did not intend and did not provide for." 13. The reliance placed on the judgment of the Orissa High Court by the learned counsel for the respondent cannot be applied to the factual matrix of the case at hand in the backdrop of the contemplation of text of Section 19 read with 21 of the Orissa Municipal Act. At this juncture, it would be gainful to consider text of para 6 of the judgment of the Orissa High Court, which reads thus: "6. Perused the records and the decisions cited by the parties. In the instant case, the only point which falls for consideration is, whether the Addl. District Judge, Angul has the jurisdiction under the Orissa Municipal Act to decide the election dispute under Section 19 of the Act and whether the District Judge, Dhenkanal has power under Section 24 of the CPC read with Section 5(2) of the Orissa Civil Courts Act to transfer the election case to the court of the Addl. District Judge, Angul. District Judge, Angul has the jurisdiction under the Orissa Municipal Act to decide the election dispute under Section 19 of the Act and whether the District Judge, Dhenkanal has power under Section 24 of the CPC read with Section 5(2) of the Orissa Civil Courts Act to transfer the election case to the court of the Addl. District Judge, Angul. For ready reference, Sections 19 and 21 of the Orissa Municipal Act are quoted below : "19. Form and presentation of petition- (1) The petition shall be presented before the District Judge, together with a deposit of two hundred rupees as security for cost within fifteen days, after the day on which the result of the election was announced and shall specify the ground or 5 grounds on which the election of the opposite party is questioned and shall contain a summary of the circumstances alleged to justify the election being questioned on such grounds. (2) The petition may be presented by any candidate in hose favour votes have been recorded and who claims to be declared elected in place of the person whose election is questioned, or by twenty-five or more elected members of the Ward. (3) A person whose election is questioned and when the petition states that any other candidate shall be declared elected in place of such person, every successful candidate, who has polled more votes than such candidate, shall made opposite party to the petition." "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 "Tribunal") shall be deemed to exercise jurisdiction as persona designata and not acting in capacity of a Judge of a Civil Court." 14. Therefore, the argument raised on behalf of the respondent while supporting the impugned judgment and order made by the Additional District Judge No. 3, Alwar, cannot be sustained. 15. (2) Such District Judge (hereinafter referred to as "Tribunal") shall be deemed to exercise jurisdiction as persona designata and not acting in capacity of a Judge of a Civil Court." 14. Therefore, the argument raised on behalf of the respondent while supporting the impugned judgment and order made by the Additional District Judge No. 3, Alwar, cannot be sustained. 15. The objection raised by the learned counsel for the appellant at appellate stage and did not raise any objection as to the proceedings on the election petition since its institution until conclusion, and therefore, he is precluded to raise such a plea; needs to be rejected in view of the opinion of a Coordinate bench of this Court in the case of Smt. Jeevani Bano (supra), which in turn relied upon the opinion of the Supreme Court in the case of Kiran Singh Versus Chaman Paswan, AIR 1954 SC 340 , holding thus: "9. The next question which requires consideration is : whether the objection regarding the jurisdiction can be taken in appeal? When the Court, which has decided the matter, had no jurisdiction to adjudicate the dispute, the decree passed by such Court is nullity and its validity can be questioned at any time, even in an appeal or even during the execution proceedings. Consent of the parties or the silence or inaction of the parties in challenging the jurisdiction will not confer the jurisdiction on the Court to adjudicate the dispute which otherwise the Court has no jurisdiction to decide. The authority of the Court to adjudicate can be challenged at any stage. It has been held by the Hon'ble Supreme Court in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 : (1954 All LJ 551) that at page 342 of AIR : "It is fundamental principle that a decree passed by a Court without jurisdiction is nullity and that its validity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction whether it is a pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties. The learned Civil Judge had no jurisdiction to adjudicate the matter. A defect of jurisdiction whether it is a pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties. The learned Civil Judge had no jurisdiction to adjudicate the matter. The objection regarding jurisdiction, thus, can be raised at any time even during the appeal." 16. That apart, a Division Bench of this Court in the case of Babu Lal Jain (supra), in no uncertain terms observed that "the action in the backdrop of contemplation under Section 10 of the Ordinance without considering the provisions of the Act of 2009 more particularly Section 31 could have been challenged directly rather than to have moved before the Additional District & Sessions Judge containing that he had no jurisdiction in the matter." Similar the contention that the judgment and order in the case of Babu Lal Jain (supra), would be prospective, and therefore, cannot be applied to the case at hand, is absolutely misconceived. 17. For the reasons and discussions aforesaid, the appeal succeeds and is hereby allowed. The impugned order dated 22nd October, 2016, is quashed and set aside. 18. Learned counsel for the respondents submits that the election petition was rightly instituted before the Court of District Judge, Alwar, as contemplated under Section 31 of the Act of 2009, and therefore, the matter be remitted back for decision afresh from that stage. The plea is justified in the singular factual matrix. 19. Accordingly, the election petition shall proceed from the stage it was instituted before the Court of District Judge, Alwar, in accordance with law. 20. No costs.