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Deepak Dashrath Chahande and ors. Vs. Civil Judge, Junior Division and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMumbai Nagpur High Court
Decided On
Case NumberWRIT PETITION NO.2360 OF 2011
Judge
ActsConstitution of India - Article 226; Bombay Village Panchayats Act, 1958 - Section 15
AppellantDeepak Dashrath Chahande and ors.
RespondentCivil Judge, Junior Division and ors.
Appellant AdvocateShri P.C. Madkholkar, Adv.
Respondent AdvocateShri N.W. Sambre; Shri S.R. Deshpande, Advs.
Excerpt:
.....the election petition filed by the respondent nos. 3 to 5 herein (hereinafter referred to as "the election petitioners") was restricted to ward nos. 4 and 5. insofar as the nominations are concerned, the election petitioner no.1 had filed nomination from ward no.4 for the seat reserved for ladies and the election petitioner nos. 2 and 3 in the said election petition had filed nominations from ward no.5 for the seats reserved for scheduled tribe and other backward class candidates. in the elections, the petitioners herein were declared elected. the respondent nos. 3 to 5, therefore, filed a common election petition assailing the election of the petitioner nos. 1 and 2 from ward nos. 4 and 5 on the ground that their nominations were wrongly rejected. the election of the petitioner no.3..........of india takes exception to the judgment and order dated 28/4/2011 passed by the learned civil judge, junior division, sindewahi whereby the election petition bearing no.2/2010 filed by the respondent nos. 3 to 5 came to be allowed and resultantly the elections to ward nos. 4 and 5 of gram panchayat, nawargaon, taluq sindewahi, district chandrapur, which were held on 22/8/2010, came to be set aside. 3) the facts, in a nutshell, can be stated thus : the petitioners and the respondent nos. 3 to 5 herein were the contestants in the elections for the gram panchayat, nawargaon, taluq sindewahi, district chandrapur, which were held on 22/8/2010. the said gram panchayat comprises of 17 members and the area is divided into six wards. ward no.1 consists of 2 seats {1 obc and 1 ladies.....
Judgment:
1) Rule, with the consent of the learned Counsel for the parties made returnable forthwith and heard.

2) The above petition under Article 226 of the Constitution of India takes exception to the judgment and order dated 28/4/2011 passed by the learned Civil Judge, Junior Division, Sindewahi whereby the Election Petition bearing No.2/2010 filed by the respondent nos. 3 to 5 came to be allowed and resultantly the elections to Ward Nos. 4 and 5 of Gram Panchayat, Nawargaon, Taluq Sindewahi, District Chandrapur, which were held on 22/8/2010, came to be set aside.

3) The facts, in a nutshell, can be stated thus : The petitioners and the respondent nos. 3 to 5 herein were the contestants in the elections for the Gram Panchayat, Nawargaon, Taluq Sindewahi, District Chandrapur, which were held on 22/8/2010. The said Gram Panchayat comprises of 17 members and the area is divided into six Wards. Ward No.1 consists of 2 seats {1 OBC and 1 Ladies (Open)}. Ward No.2 consists of 3 seats {2 Men, 1 Ladies (Open)}. Ward No.3 consists of 3 seats {1 Ladies (OBC), 1 Men (OBC), 1 Men (ST)}. Ward No.4 consists of 3 seats {1 Ladies, 2 Men (Open)}. Ward No.5 consists of 3 seats {2 Men (1 ST, 1 OBC), 1 Ladies (ST). Ward No.6 consists of 3 seats {2 Men (1 OBC, 1 ST) and 1 Ladies (SC)}. The Election Petition filed by the respondent nos. 3 to 5 herein (hereinafter referred to as "the election petitioners") was restricted to Ward Nos. 4 and 5.

4) Insofar as the nominations are concerned, the election petitioner no.1 had filed nomination from Ward No.4 for the seat reserved for Ladies and the election petitioner nos. 2 and 3 in the said Election Petition had filed nominations from Ward No.5 for the seats reserved for Scheduled Tribe and Other Backward Class candidates. The said nominations of the election petitioners came to be rejected on the ground that they had not obtained the permission of the Management of the Schools wherein they were serving for contesting the elections. In the elections, the petitioners herein were declared elected. The respondent nos. 3 to 5, therefore, filed a common Election Petition assailing the election of the petitioner nos. 1 and 2 from Ward Nos. 4 and 5 on the ground that their nominations were wrongly rejected. The election of the petitioner no.3 was not in confrontation in the said election petition. The election petitioners sought to rely upon the judgment of the Apex Court in the matter ofSatrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev and another (AIR 1992 SC 1959) and the judgment of this Court in the matter of Bombay University and College Teachers' Union v. The State of Maharashtra and another (1990 (2) Bom.C.R. 324) wherein it has been held that for the Teachers and other employees of a private School, permission of the Management is not required for contesting any elections.

5) The petitioners herein filed their reply to the said Election Petition and questioned the maintainability of the said Election Petition on the ground that a joint petition cannot be filed specially in view of the fact that elections to two Wards and separate constituencies therein, i.e. Ward Nos. 4 and 5 were being questioned by the election petitioners. It was contended in the said affidavit-in-reply that rejection of the nomination forms of the election petitioners was proper in the light of the fact that they had failed to produce the authority permitting them to contest the elections.

6) The said Election Petition came to be tried by the learned Civil Judge, Junior Division, Sindewahi and by the impugned judgment and order dated 28/4/2011, the same came to be allowed and the elections to all the three seats in respect of both Ward Nos. 4 and 5 came to be set aside. Insofar as objection of the petitioners herein to the maintainability of the common Election Petition is concerned, the said objection was overruled by the learned Judge relying upon Section 15(3) of the Bombay Village Panchayats Act, 1958. As regards rejection of the nominations of the election petitioners, the learned Judge held that in view of the judgment of the Apex Court and this Court (supra), permission of the Management was not required and, therefore, the rejection of the nominations of the election petitioners was illegal. As mentioned hereinabove, the said Election Petition came to be allowed and resultantly, the objections of the petitioners came to be set aside.

7) Heard learned Counsel for the parties. SUBMISSIONS ON BEHALF OF THE PETITIONERS

(i) That, a common Election Petition is not maintainable in view of the provisions of Section 15(1) of the said Act, which postulates that an Election Petition can be filed by a candidate at such election or any person qualified to vote at the election. It is, therefore, the submission of the learned Counsel for the petitioners that the same would have to be interpreted to mean that a separate Election Petition would have to be filed in respect of each candidate and in respect of each Ward.

(ii) That, validity of election can be challenged only in accordance with the statutory regime applicable and since Section 15(1) postulates the manner in which an election can be challenged, the same would have to be followed, meaning thereby that a separate election petition will have to be filed. In support of the said contention, the learned Counsel for the petitioners relied upon the judgment of the Apex Court in the case of Jyoti Basu and others v. Debi Ghosal and others (AIR 1982 SC 983 (I). Para 8 of the said report, according to the learned Counsel, is relevant wherein it has been observed that election petition 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.

(iii) That, in the instant case, where the seats were earmarked for men and women and for different categories, the cause of action in respect of each Constituency and category would be different and, therefore, a joint election petition was not maintainable.

(iv) That, the learned Civil Judge, Junior Division exceeded his jurisdiction by not only setting aside the elections wherein the election petitioners were the prospective candidates, but also in respect of three seats with which they were not concerned and in respect of which, no reliefs were claimed. The said setting aside of the elections was without even hearing the elected candidates insofar as the said three seats were concerned.

SUBMISSIONS ON BEHALF OF RESPONDENT NOS.3 TO 5 :

(i) That, the election petition as filed was maintainable as the cause of action to all the election petitioners was the same, namely, the rejection of their nominations on the ground that they had not obtained the permission of the Management of the Schools wherein they were working.

(ii) That, since the Civil Procedure Code is applicable to the conduct of the election petitions under the Bombay Village Panchayats Act, 1958, in terms of Order II Rule 2, the common election petition as filed was maintainable and for the said purpose, the respondent nos. 3 to 5 relied upon a judgment of the learned Single Judge of this Court in the matter of Bhimaji Laxman and others vs. C.N. Gite and others (1969 Mh.L.J. 759).

(iii) That, this Court should not interfere in its extra-ordinary writ jurisdiction under Article 226 of the Constitution, if it would result in restoration of any order, which is illegal. In the instant case, the order passed by the Election Officer being illegal in the teeth of the judgment of the Apex Court in the matter of Satrucharla Chandrasekhar Raju (supra), this Court should not interfere with the impugned judgment passed by the trial Court.

CONSIDERATION

8) In the instant case, it is required to be noted that the nominations of the election petitioners were rejected on the ground that they had not obtained the permission of the Management of the Schools in which they were teaching, to contest the said elections. The said ground was common in respect of all the election petitioners. Hence, in the said context, it would have to be seen whether a common election petition is maintainable. It is held by the Apex Court in the Jyoti Basu and others' case (supra) that an election petition 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. In the instant case, Section 15 of the said Act governs how the said statutory remedy is to be availed of. It would, therefore, be proper to reproduce the relevant provisions of Section 15 of the said Act. "Section 15 - Determination of validity of elections : enquiry by Judge; procedure - (1) If the validity of any election of a member of a Panchayat is brought in question by any candidate at such election or by any person qualified to vote at the election to which such question refers, such candidate or person may, at any time within fifteen days after the date of declaration of the result of the election, apply to the Civil Judge (Junior Division) and if there be no Civil Judge (Junior Division), then to the Civil Judge (Senior Division) (hereinafter in each in case, referred to as "the Judge") having ordinary jurisdiction in the area within which the election has been or should have been held for the determination of such question.

(2) Any enquiry shall thereupon be held by the Judge and he may after such enquiry as he deems necessary pass an order, confirming or amending the declared result or setting the election aside. For the purposes of the said enquiry, the said Judge may exercise all the powers of a Civil Court, and his decision shall be conclusive. If the election is set aside, a date for holding a fresh election shall forthwith be fixed under Section 11.

(3) .........

(4) Notwithstanding anything contained in the Code of Civil Procedure, 1908 (V of 1908), the Judge shall not permit (a) any application to be compromised or withdrawn or (b) any person to alter or amend by pleading unless he is satisfied that such application for compromise or withdrawal or the application for such alteration or amendment is bona fide or not conclusive."

(5) .........

(6) .........

(7) ........."

A reading of Section 15(2) inter alia discloses that an enquiry is postulated after the election petition is filed and thereafter the learned Judge may pass an order, confirming or amending the declared result or setting aside the election and for the purposes of the said enquiry, the learned Judge may exercise all the powers of a Civil Court. Thereafter sub-section (4) provides that notwithstanding anything contained in the Civil Procedure Code, 1908, the Judge shall not permit any application to be compromised, withdrawn, altered or amended except in special circumstances. The above provisions, therefore, clearly indicate that the provisions of the Civil Procedure Code are applicable to the proceedings under Section 15 of the said Act.

9) A useful reference could be made to Bhimaji Laxman and others' case (supra), which was cited on behalf of respondent nos. 3 to 5 herein wherein it has been held that the provisions of the Civil Procedure Code apply to a proceeding for setting aside election under Section 15 of the Bombay Village Panchayats Act, 1959. In the said case, a common election petition was filed by the candidates whose nominations were rejected on the ground that they were submitted late. The Court held that considering Order I Rules 1 and 2 and Order II Rule 3 of the Civil Procedure Code, since the cause of action for the election petition was common, namely, that their nominations were rejected on the self same ground, i.e. for submitting them late, on the application of the principles as contained in the Civil Procedure Code, the common election petition was maintainable. It was not a case where the petitions were suffering from multifariousness inasmuch as different causes of action were sought to be combined in one election petition. The relevant paragraph of the said judgment is paragraph (8), which is reproduced hereunder :

"8. With regard to the plea of multifariousness in respect of respondents Nos. 6 to 11, we might point out that Section 15(2) provides that after an election petition is filed, an inquiry shall be held and that for the purpose of the said inquiry, the Judge may exercise all the powers of a civil Court. Sub-section (4) provides that notwithstanding anything contained in the Civil Procedure Code, 1908, the Judge shall not permit any application to be compromised or withdrawn, altered or amended, except in certain circumstances. These provisions clearly indicate that the Code of Civil Procedure, 1908, is applicable to proceedings under Section 15 of the said Act. Order I Rule 1 of the Civil Procedure Code provides that all persons may be joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where if such persons brought separate suits a common question of law or fact would arise. In this case, the nomination papers of the petitioners and respondent No.15 were rejected by the Returning Officer on the ground that these nomination papers were tendered to him and were received by him some time after 3.00 p.m. on March 10, 1967. It is, therefore, obvious that the right of the petitioners to relief arises out of the same series of transactions. Under the aforesaid provision of the Civil Procedure Code, they could therefore, file one application. Rule 2 of Order I provides that where it appears to the Court that any joinder of the plaintiffs may embarrass or delay the trial of the suit, the Court may put the plaintiffs to their election or order separate trials or make such other order as may be expedient. Rule 3 of Order II provides that any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly, may unite such causes of action in the same suit. This is another provision under which the petitioners could have joined their causes of action. These provisions normally applicable to suits would apply to an election petition also by virtue of Section 141 of the Civil Procedure Code. We are, therefore, of the view that the composite application filed by the petitioners against respondent Nos. 6 to 11 was maintainable and did not suffer from the defect of multifariousness. The petition has already been withdrawn against respondents Nos. 12 to 14 and the other respondents are formal parties. We, therefore, hold that the petition is maintainable."

10) In the instant case, the submission of the learned Counsel for the petitioners that the cause of action for a candidate contesting for a constituency reserved for women would be different than the cause of action for a candidate who was contesting in a seat for Men (S.T.) or Men (O.B.C.) and, therefore, a common election petition as filed by the election petitioners in the present case was not maintainable, in my view, cannot be accepted for the reason that the cause of action for filing the election petition was the rejection of the nomination forms of all the election petitioners on the common ground that they had not obtained the permission of the Management of the Schools in which they were teaching. It was not a case where the cause of action for filing the election petition was different for each of the election petitioners. Hence, the election petition was not suffering from the vice of multifariousness. If multifarious causes of action were to be considered, the learned Judge would have been within his right not to entertain a petition containing multifarious causes of action. Therefore, in the light of the judgment of the learned Single Judge of this Court in Bhimaji Laxman and others' case (supra) and considering the fact that cause of action for filing the election petition was common to all the election petitioners, in my view, the common election petition filed by the election petitioners, i.e. respondent nos. 3 to 5 herein was maintainable.

11) However, the question still remains whether the learned Judge in the said election petition could have set aside the elections for all the seats in the said Ward Nos. 4 and 5 though the challenge of the election petitioners was only in respect of one seat in Ward No.4, which was reserved for women and the two seats in Ward No.5, which were reserved for Men (Scheduled Tribe and Other Backward Class). When the challenge was only to the said three seats, in my view, it was highly improper on the part of the learned Judge to set aside the elections for all the six seats in the said Ward Nos. 4 and 5. It is pertinent to note that the petitioner no.3 herein was not even a party to the said election petition, however, his election came to be set aside. The impugned order, therefore, insofar as it sets aside the elections to the other seats in Ward Nos. 4 and 5 goes beyond the scope of the election petition as the learned Judge was only called upon to decide the validity of the elections insofar as one seat in Ward No.4 and two seats in Ward No.5 are concerned. The impugned order to the extent that it sets aside the elections to all the seats in the said two Wards is, therefore, unsustainable and would, therefore, have to be set aside.

12) Insofar as the submission of Shri S.R. Deshpande, learned Counsel for the respondent nos. 3 to 5, that this Court should not interfere in the extra- ordinary writ jurisdiction as it would amount to restoring an illegal order of the Election Officer is concerned, the same cannot be countenanced in view of the fact that the Election Tribunal, i.e. learned Civil Judge (Junior Division) has committed an illegality by setting aside the elections for the other seats though not called upon to do so and though the elected candidates were not even parties to the election petition. The impugned order, therefore, as already held hereinabove, travels beyond the scope of the election petition and to that extent the same would have to be set aside. Therefore, the judgment of the Apex Court in the matter of Gadde Venkateswara Rao v. Government of Andhra Pradesh and others (AIR 1966 SC 8280), relied upon by the learned Counsel for the respondent nos. 3 to 5, would have no application in the facts and circumstances of the present case.

13) As indicated above, in view of the fact that the Civil Procedure Code applies to an election petition filed under Section 15 of the said Act, the challenge to the impugned order on the ground that a common election petition not being maintainable thus fails.

14) Insofar as entitlement of the election petitioners to contest the elections is concerned, the Apex Court in the judgment in Satrucharla Chandrasekhar Raju (supra) has held that a Teacher in a School run by a registered Society cannot be said to be holding office of profit under the Government and, therefore permission of the private Management wherein the Teacher concerned was working was not required. In the teeth of the judgment of the Apex Court, the impugned order passed by the learned Civil Judge, Junior Division setting aside the elections on the ground that the nominations of the election petitioners was wrongly rejected cannot be faulted with insofar as the seats to which the respondent nos. 3 to 5 were desirous of contesting.

15) As mentioned above, the above petition would have to be partly allowed and insofar as the elections to the seats in respect of which there was no challenge in the election petition, the impugned order is required to be set aside and accordingly set aside.

16) Rule is accordingly made partly absolute in the aforesaid terms with parties to bear their respective costs.


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