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2019 DIGILAW 1735 (RAJ)

Panna Ram v. Ramu Ram

2019-06-01

SANDEEP MEHTA, VINIT KUMAR MATHUR

body2019
JUDGMENT Sandeep Mehta, J. - The instant intra court appeal has been preferred by the appellant Panna Ram being aggrieved of the order dated 03.05.2019 whereby the writ petition No.4955/2019 filed by the appellant herein was rejected by the learned Single Bench of this Court. 2. We have heard and considered the arguments advanced at bar and have gone through the material available on record. 3. Shri Ranjeet Joshi, Advocate representing the respondent has raised a preliminary objection regarding maintainability of writ petition. He urged that the order dated 03.05.2019 was passed by the learned Single Judge while exercising supervisory writ jurisdiction conferred upon this Court by virtue of Article 227 of the Constitution of India. Since the matter arises from the proceeding of a Civil Court/ Election Tribunal, a writ petition in such circumstances would only be maintainable under Section 227 of the Constitution of India. He relied upon the order dated 30.01.2018 passed by Coordinate Bench of this Court in D.B. Civil Special Appeal (Writ) No.566/2008 (Amar Singh vs. Kailash Chandra & Ors.) whereby, the Division Bench, while taking into account the various earlier Division Bench judgments and the Supreme Court judgment in the case of Shalini Shyam Shetty vs. Rajendra Shankar Patil, (2010) 8 SCC 329 held that the intra court appeal against the order of the learned Single Judge passed in exercise of power of superintendence under Article 227 of the Constitution of India is not maintainable in view of Rule 134(i) of the Rajasthan High Court Rules, 1952. He urged that in view of clear pronouncement of Coordinate Bench of this Court, the appeal is liable to be dismissed as being not maintainable. 4. Per contra, the contention of Shri Sajjan Singh Rajpurohit, learned counsel representing the appellant herein was that the Election Tribunal/ Civil Judge, whilst exercising powers under the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as 'the Act of 1994) and Rajasthan Panchayati Raj (Election) Rules 1994 (hereinafter referred to as 'the Rules of 1994), does not act as a Civil Court but rather acts as an authority by virtue of Section 117B of the Act of 1994. In support of his contention, Shri Rajpurohit placed reliance on the Supreme Court Judgment rendered in the case of Shri Banwari Dass vs. Shri Sumer Chand & Ors.,1997 4 SSC 817 and the Single Bench Judgment of this Court in the case of Babita vs. Nihaldei,2017 2 WLC(Raj) 275 and urged that the District Judge, dealing with an election petition under Rule 80 of the Rules of 1994, is a persona designata and not a Court subordinate to the High Court and therefore, the writ petition, if any, against the order of such a court would only be maintainable under Article 226 of the Constitution of India. 5. Firstly we consider the observations made by the Hon'ble Supreme Court in the case of Shri Banwari Dass (supra). In the said case, the "controvertia in existus" before the Hon'ble Supreme Court was whether the returned candidate in an election petition filed under the Delhi Municipal Corporation Act had the right to file a recrimination petition. Hon'ble the Supreme Court considered the controversy and held as below: "18. Having seen that there is no provision in the Corporation Act which specifically or by inevitable implication gives to a returned candidate a right to recriminate, the further question to be determined is : Whether the court is competent to provide this casus omissus by invoking the maxim ubi jus ibi remedium or Mischief Rule or other principles of common law ? 19. It appears to us that the answer to this question must be in the negative. 21. It must be remembered-to use the oft-quoted words of Grover j. in Taunton's case(1)- "That although the object of the statute by which the election tribunals were created was to prevent corrupt practices, still the tribunal is a judicial, and not an inquisitorial one, it is a court to hear and determine according to law, and not a commission armed with powers to enquire into and suppress corruption." 22.In the light of these well-established principles, it is clear that the court cannot bridge the gap or supply this apparent omission in the Corporation Act with regard to a returned candidates claim to recriminate, by importing principles of common law or equity, the maxim casus omissus et oblivioni datus dispositioni communis juris relinquitur being inapplicable to the construction of election statutes. A right to file an election petition or a recriminatory petition which, in substance, is a counter-election- petition, being the mere creature of statute, unknown to common law, the appellant, in the absence of a clear statutory provision, is not entitled to recriminate on any of the grounds mentioned in Section 17." 6. Thus, the only issue which was decided by the Hon'ble Supreme Court after keeping in view the scope and ambit of the Delhi Municipal Corporation Act was that the returned candidate had no right to file a recrimination petition in an election petition because the statute did not permit such a course of action. 7. In the present case, we are required to delve into the issue whether the learned Single Bench of this Court in the case of Babita (supra), correctly held that the District Judge or the Civil Judge or the Additional Civil Judge, while trying or hearing the election petition presented under the Act of 1994 and the Rules of 1994, acts as a persona designata and no appeal lies against the judgments/ orders passed by this Court and hence the High Court in exercise of Article 227 of the Constitution of India cannot exercise superintending powers with regard to election disputes under the Act of 1994 and Rules of 1994 and the remedy lies to file a writ petition of certiorari under Article 226 of the Constitution of India. 8. In Babita's case, reliance was placed by the learned Single Bench on the Division Bench Judgment of this Court in the case of Keshav Devi vs. Radhey Shyam,1994 1 WLC(Raj) 81 wherein, it was held in unequivocal terms that the Judge hearing the election petition may have the trappings of a Court but he cannot be deemed to function as an ordinary Civil Court and is rather a 'persona designata'. Adhering to the said view, manifestly the order passed by an Election Tribunal who is deemed to be a persona designata, cannot be challenged by taking recourse to the powers of superintendence conferred upon the High Court by Article 227 of the Constitution of India and the remedy would lie by way of a 'writ of certiorari' under Article 226 of the Constitution of India. Thus, we affirm the view of the learned Single Judge in the case of Babita (supra) and overrule the preliminary objection raised by Shri Ranjeet Joshi. Thus, we affirm the view of the learned Single Judge in the case of Babita (supra) and overrule the preliminary objection raised by Shri Ranjeet Joshi. Since the order of the learned Single Judge has to be considered as having been passed under Article 226 of the Constitution of India, a letters patent appeal definitely lies there against. 9. Now we delve into the merits of the case. The contention of Shri Rajpurohit for assailing the impugned order was that the election petition was presented before the Munsarim and thus, the same was not maintainable. He urged that the learned Single Bench was absolutely unjustified in rejecting the petitioner's writ petition while holding that the presentation of the election petition before the Munsarim was contrary to law. This contention of Shri Rajpurohit was based on the procedure as provided under Section 43 of the Panchayati Raj Act and Rule 80 of the Panchayati Raj Election Rules. In this regard, it may be noted that the result of the elections was declared on 28.01.2015. The election petition was presented by the respondent Ramu Ram in the year 2015. The election petition was addressed to the District Judge Merta. The Munsarim took the election petition for checking of the defects etc. on 21.02.2015 and finding the same to be within jurisdiction and limitation and supported with the requisite Court fees etc., the same was presented before the District Judge concerned with the office report. However, the petitioner has not filed on record, the subsequent proceedings whereby, the petition came to be placed before the learned District Judge. Apparently, the initial filing of the election petition and checking thereof by the Munsarim was required to be done in view of the applicability of the provisions of CPC. to the proceedings and thus presentation of the election petition before the Munsarim cannot be termed to be illegal warranting dismissal thereof. The petitioner filed the application for disposal of the writ petition after almost four years when the matter had reached at the final stage. Thus, intentional silence of the petitioner in this regard shows that his act was not bonafide. The Single Bench of this Court considered this issue in the case of Srimati vs. Hemlata & Ors. (SBCWP No.3969/2017) decided on 26.04.2017 and repelled an identical challenge to an election petition. Thus, intentional silence of the petitioner in this regard shows that his act was not bonafide. The Single Bench of this Court considered this issue in the case of Srimati vs. Hemlata & Ors. (SBCWP No.3969/2017) decided on 26.04.2017 and repelled an identical challenge to an election petition. We feel that the view of the learned Single Bench in the case of Smt. vs. Hemlata is the correct preposition of law and hence, no illegality whatsoever was committed when the election petition was submitted to the Munsarim for checking etc. 10. As we consider the view of the learned Single Bench in the case of Babita (supra) to be the correct interpretation of law, apparently, the rejection of the petitioner's writ petition by the learned Single Bench vide order dated 03.05.2019, is justified in the eyes of law. 11. Hence, we find no merit in this appeal which is dismissed as such. No order as to costs.