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Shahinara Salim Baig Vs. B.M.C. and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberW.P. No. 944 of 2002
Judge
Reported in2002(3)ALLMR368; 2002(5)BomCR128; 2002(2)MhLj940
ActsBombay Municipal Corporation Act, 1888 - Sections 33; Constitution of India - Articles 226 and 227
AppellantShahinara Salim Baig
RespondentB.M.C. and ors.
Appellant AdvocateM.P. Vashi, Adv.
Respondent AdvocateA.J. Bhor and ;D.B. Sawant, Advs.
DispositionPetition dismissed
Excerpt:
.....expected by the legislature is final decision of the election petition. there is no provision for interim orders to be considered and granted before the election petition is considered on merits and before the final hearing is concluded on the basis of the pleadings of the parties and material produced by them. the enquiry contemplated by the law is a final enquiry and there is no provision for any prima facie case to be found by the learned judge for consideration of grant of interim reliefs to the aggrieved party. - [couto; m.l. pendse, jj.] in the first instance the order passed under s. 132(5) is an order of a summary nature and does not conclude the rights of the petitioners, because while passing the assessment order, it is always open to the petitioners to point out that the..........other payment whatsoever.'2. after the notice the respondents including the respondent no. 3, the elected candidate appeared to contest the notice for interim reliefs. the respondent no. 3 filed her affidavit in reply to oppose the said notice.3. after hearing the parties, the learned additional chief judge of the court of small causes at bombay by his order dated 19th march, 2002 dismissed the notice with no order as to costs. the petitioner aggrieved by the said judgment and order of the learned additional judge, has approached this court by filing the present petition under article 226 of the constitution of india for the following reliefs:--(a) that a writ of certiorari, writ of mandamus or any other appropriate writ order or direction be issued calling for the records and after.....
Judgment:
ORDER

R.J. Kochar, J.

1. Rule. By consent returnable forthwith. Respondents waive service.

The petitioner after having lost the municipal election from Ward No. 108 of the Municipal Corporation for Greater Mumbai, approached the Court of Small Causes at Bombay under Section 33 of the Bombay Municipal Corporation Act, 1888 to challenge the election of the respondent No. 3 Mrs. Geeta Laxmi Gore, who was declared elected by a margin of 646 votes. In the said election held on 10th February, 2002, the petitioner received 3241 votes while the respondent No. 3 received 3087 votes and was declared elected by the competent authority. The petitioner in her election petition has prayed for the following reliefs:--

(a) That the necessary inquiry be made with regard to the aforesaid allegations and this Hon'ble Court be pleased not to confirm the election of the 3rd respondent as a Municipal Corporator from Ward No. 108.

(b) That the declaration about the election of the 3rd respondent as elected from Ward No. 108 be declared as null and void and the same be ordered to be set aside;

(c) The re-polling in the said polling centres i.e. (1) New India Staff Quarters, consisting of six electoral parts (13, 14, 17, 17A) 18, 18(A), (2) Mahavir Jain Vidyalaya, consisting of one electoral part (12), (3) Local Self Government Institute consisting of five electoral part (2), 22, 23, 24, 24A) all this three polling centers are at C. D. Barfiwala Road where the lathi charge and disturbance took place;

(d) that the petitioner be declared elected having secured the second highest number of votes and not having indulged into any corrupt practice or violated any provision of law;

(e) That pending the hearing and final disposal of the petition, re-polling be allowed;

(f) That pending the hearing and final disposal, of the petition, the respondent No. 3 be prevented by an order and injunction of this Hon'ble Court from posing of acting as the Municipal Corporator from ward No. 108 and/or acting as a member of the Statutory Committee and contesting for the post of Mayor/Dy. Mayor, or drawing allowances, honorarium, development fund or any other payment whatsoever;

(g) That pending the hearing and final disposal of the petition, the respondent Nos. 1 and 2 be prevented by an order and injunction of this Hon'ble Court from sanctioning or spending Development Fund amount of Ward No. 108 at the instance of the 3rd respondent.

(h) That ad-interim reliefs in terms of prayers (f) and (g) be granted;

(i) That the costs of the petition be provided for;

(j) That the costs of the petition be provided for;

(k) Such other and further reliefs be granted as the Court may deem fit to grant;

In the election petition the petitioner also filed interim notice No. 137 of 2002 praying for the following interim reliefs:--

(a) That pending and hearing and final disposal of the petition be expedited and the same may be heard and disposed of as early as possible;

(b) That pending the hearing and final disposal of the petition, the respondent No. 3, be prevented by an order and injunction of this Hon'ble Court from posing of acting as the Municipal Corporator from Ward No. 108 and/or acting as a member of the Statutory Committee and contesting for the post of Mayor/Dy. Mayor, or drawing allowances, honorarium, development fund or any other payment whatsoever.'

2. After the notice the respondents including the respondent No. 3, the elected candidate appeared to contest the notice for interim reliefs. The respondent No. 3 filed her affidavit in reply to oppose the said notice.

3. After hearing the parties, the learned Additional Chief Judge of the Court of Small Causes at Bombay by his order dated 19th March, 2002 dismissed the notice with no order as to costs. The petitioner aggrieved by the said judgment and order of the learned Additional Judge, has approached this Court by filing the present petition under Article 226 of the Constitution of India for the following reliefs:--

(a) That a writ of certiorari, writ of mandamus or any other appropriate writ order or direction be issued calling for the records and after examining the proprieties and legalities of the order dated 19th March, 2002 passed by the Learned Additional Chief Judge of the Small Causes Court presiding in Court Room No. 18, in Interlocutory Notice No. 137 of 2002 in Municipal Election Petition No. 24 of 2002, be pleased to quash and set aside the same;

(b) That pending the hearing and final disposal of the petition, the Respondent No. 3 may be prevented by an order and injunction of this Hon'ble Court from posing herself or acting as the Municipal Councillor and the respondent No. 1, their officers, servants, agents and employees may be prevented from sanctioning the amount from the councillors development funds;

(c) That ad-interim reliefs in terms of prayer (b) above be granted;

(d) That the costs of the Petition be provided for;

(e) Such other and further reliefs be granted as this Hon'ble Court may deem fit.'

4. I have heard Shri M.P. Vashi, the learned Advocate for the petitioner and Shri D.B. Sawant, the learned Advocate for the respondent No. 3. I have also carefully gone through the proceedings including the impugned judgment and order of the learned Additional Chief Judge. The main thrust of the submissions of Shri Vashi was that the election petitions are not heard expeditiously and they remain pending even till the fag end of the tenure of the elected Councillors and, therefore, according to the learned Advocate, the interim orders of the nature prayed for in the notice became imminent. Shri Vashi submitted that if no such interim orders are passed and if finally the election is set aside, no useful purpose is ever served and during the tenure of the office, the elected Councillor had functioned as if he/she was validly elected and finally it would result into the futility of the election petition. In the process of pendency of the election petition, such petitions became infructuous. According to the Shri Vashi, the elected Councillor whose elections are challenged very often abuse their position and misuse the funds. To prevent such misdeeds, says the learned Advocate, interim orders are necessary in the interest of all and in, the interest of justice. Shri Vashi further pointed out that the learned Judge had committed serious error of law in dismissing the notice mainly on the ground that there was no provision in the Act to grant any interim orders preventing the elected Councillors from functioning as such. Shri Vashi further pointed out that though there was no such provision in the Act, the learned Judge ought to have exercised his inherent powers under Section 151 of the Code of Civil Procedure in the interest of justice. Shri Vashi has relied upon a judgment of the Supreme Court in the case of Manoharlal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, reported in : AIR1962SC527 .

5. Shri Sawant, the learned Advocate for the respondent No. 3, the elected candidate, vehemently opposed admission of the petition and strongly supported the judgment of the learned Judge of the Small Causes Court dismissing the interim notice. Shri Sawant, countered the submissions of Shri Vashi by saying that, if finally the election of the elected candidate is upheld and is declared valid and if such a candidate is prevented from functioning by way of interim orders, in that case, it would cause irreparable prejudice to the candidate and such a loss can never be made up or cured. According to Shri Sawant, in the absence of any strong prima facie case made out even in the petition, no such interim orders can ever be passed, which finally result in miscarriage of justice and the validly elected candidate is deprived forever of his right as an elected candidate to function in the democratic set up. Shri Sawant further submits that the Legislature has deliberately not provided for any powers to consider and grant such interim orders. According to Shri Sawant, people have elected his client by a popular vote and not by a slender margin but by 642 votes and it would amount to negation of the democratic rights of the electorate if the elected candidate is not allowed to exercise his or her right to function in the capacity of an elected councillor. Shri Sawant has finally submitted that the petitioner must accept the popular verdict in real democratic spirit and should await the final decision of the petition. Shri Bhor who appeared for the respondent Nos. 1 and 2 supported the impugned judgment of the learned Additional Chief Judge.

6. Section 33(2) and (5) of the Act is relevant and the provisions of the said section are reproduced below for ready reference.

(2) If the Chief Judge of the Small Causes Court, after making such inquiry as he deems necessary, finds that the election was valid election and that the person whose election is objected to is not disqualified he shall confirm the declared result of the election. (If he finds that the person whose election is objected to is disqualified for being a councillor he shall declare such person's election null and void. If he finds that the election is not a valid election he shall set it aside. In either case he shall direct that the candidate if any in whose favour the next highest number of valid votes is recorded after the said person and against whose election no cause of objection is found, shall be deemed to have been elected.'

(5) Every election not called in question in accordance with the foregoing provisions shall be deemed to have been to all intents a good and valid election.'

It is crystal clear that what is expected by the legislature is final decision of the election petition. There is no provision for interim orders to be considered and granted before the election petition is considered on merits and before the final hearing is concluded on the basis of the pleadings of the parties and material produced by them. The enquiry contemplated by the law is a final enquiry and there is no provision for any prima facie case to be found by the learned Judge for consideration of grant of interim reliefs to the aggrieved party. As has been rightly observed by the learned Judge that the Bombay Municipal Corporation Act has provided a complete code for election petition and it lays down the manner of trial of the election petition and even the degree of proof required. It is nowhere contemplated that as soon as the election petition is filed, an interim order should follow without considering the written statement of the respondents. In the present case, the petitioner has rushed with an interim notice and has prayed for interim orders of far reaching consequences, merely on the basis of averments and allegations made in the election petition. The respondent No. 3 the elected candidate had not even filed her written statement to set out her defence. Section 33 contemplates a complete enquiry to decide whether the election was valid election and that the person whose election is objected to is not disqualified. After such decision he has to either confirm the declaration granted or to disqualify the candidate. It is beyond the pale of doubt that the Legislature does not contemplate any disqualification of the elected candidate at an interlocutory or interim stage on the basis of mere averments in the election petition or even affidavits. A full trial of the nature of an enquiry by the Court is contemplated before deciding the question of validity of the election and qualification and disqualification of the elected candidate. The Legislature was and is well aware of the provisions of the Order 39 of the Civil Procedure Code and also the provisions of the interim orders or interlocutory orders in the proceedings instituted by the parties. The Legislature has never intended to incorporate such provisions for interim orders in the election petition for the obvious reasons of respecting the verdict of the people. I am not in agreement with the learned Advocate for the petitioner that even though there is no provision for granting interim orders in the election petition under Section 33 of the Act, the Court can import its inherent powers under Section 151 of the Civil Procedure Code. If the Legislature has not conferred on and has not vested the Courts with such powers, it cannot be said that the Court has an inherent power as contemplated under Section 151 of the Civil Procedure Code. The Court trying the election petition is a creature of the B.M.C Act and its powers and jurisdiction has been circumscribed by the said Act. The Court exercising its power under Section 33 cannot travel beyond the four corners of the said Act. The decision of the Supreme Court in the case of Manoharlal Chopra (supra) is not applicable in the present case. The ratio of the said judgment is that, in the event a particular situation is not prescribed in Order 39, the Court can exercise its inherent power as contemplated under Section 151 of the Civil Procedure Code in the interest of justice. The Supreme Court has not laid down any such blanket proposition of law that where in any statute there is no specific power to consider and grant an interim order, such Court should borrow or import the powers of Section 151 of the Civil Procedure Code. The Civil Courts have such inherent powers as explained in Section 151 of the Civil Procedure Code but the election Court which is a creature of the special enactment cannot exercise any such powers which are not conferred on it. It has to function with the framework of such special statute. Section 151 of the Civil Procedure Code is not substituted for Order 39 or for that matter it does not specifically vest with powers and jurisdiction which the Legislature has otherwise not conferred on the Court. I am in respectful agreement with the decision of the learned Single Judge of the Punjab and Haryana Court, in the case of Nirmal Singh v. The Joint Registrar, Co-operative Societies, Patiyala and Ors., reported in . The learned Judge had followed the division bench of his own High Court in the case of Sukhdev Singh v. Executive Magistrate, reported in 1994 (1) PLR 671 wherein the division bench of the Court appears to have held that in election petition before the election tribunal, the tribunal had no authority in passing any interim order restraining a successful candidate from participating in the proceedings of the Gram Panchayat. The Division Bench has further held that no injunction could be passed by the tribunal against a successful candidate.

7. There is another angle to this matter. What the petitioner is praying for is an interim order requiring an injunction against the successful candidate that she should not function as an elected candidate in the house. The B.M.C. Act has not conferred any such powers on the election Court holding the enquiry under Section 33 of the Act. Is it then permissible for this Court under Articles 226 and 227 of the Constitution of India to assume the role of the election Court under Section 33 of the Act and grant interim orders of the nature prayed for by the petitioner when the Legislature has not vested such powers on the election Court? The Supreme Court has drawn an ultimate line for the exercise of the jurisdiction under Articles 226 and 227 of the Constitution of India. According to the Supreme Court, the High Court's jurisdiction under the said articles cannot be treated as an extension of the statute under which the orders are passed by different Courts under different enactments. It is therefore clear that if the election Court has no power to grant interim orders, this Court sitting under Articles 226 and 227 of the Constitution of India cannot exercise its powers to grant such interim orders.

8. The Supreme Court has explained the parameters of the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India in the recent judgment reported in AIR 2001 SCW 4672, in the case of Ouseph Mathai and Ors. v. M. Abdul Khadir in the following paragraphs.

'4. It is not denied that the powers conferred upon the High Court under Article 226 and 227 of the Constitution are extraordinary and discretionary powers as distinguished from ordinary statutory powers. No doubt Article 227 confers a right of superintendence over all Courts and tribunals throughout the territories in relation to which it exercises the jurisdiction but no corresponding right is conferred upon a litigant to invoke the jurisdiction under the said Article as a matter of right. In fact power under this Article cast a duty upon the High Court to keep the inferior Courts and tribunals within the limits of their authority and that they do not cross the limits, ensuring the performance of duties by such Courts and tribunals in accordance with law conferring powers within the ambit of the enactments creating such Courts and tribunals. Only wrong decisions may not be a ground for the exercise of jurisdiction under this Article unless the wrong is referable to grave dereliction of duty and flagrant abuse of power by the subordinate Courts and tribunals resulting in grave injustice to any party.

5. In Waryam Singh v. Amarnath, 1994 SCR 565 this Court held that power of superintendence conferred by Article 227 is to be exercised more sparingly and only in appropriate cases in order to keep the subordinate Courts within the bounds of their authority and not for correcting mere errors. This position of law was reiterated in Nagendra Nath Bose v. Commissioner of Hills Division, : [1958]1SCR1240 . In Bhahutmal Raichand Oswal v. Laxmibai R. Tarta : AIR1975SC1297 this Court held that the High Court could not, in the guise of exercising its jurisdiction under Article 227 convert itself into a Court of appeal when the Legislature has not conferred a right of appeal. After referring to the judgment of Lord Denning in R. V. Northumber Land Compensation Appeal Tribunal, Exparte Shaw, 1952 (1) ALL ER 122this Court in Chandavarkar Sita Ratna Rao v. Ashalata S. Gurnam, : [1986]3SCR866 held:--

'It is true that in exercise of jurisdiction under Article 227 of the Constitution the High Court could go into the question of facts or look into the evidence if justice so requires it, if there is any misdirection in law or a view of fact taken in the teeth of preponderance of evidence. But the High Court should decline to exercise its jurisdiction under Articles 226 and 227 of the Constitution to look into the fact in the absence of clear and cut down reasons where the question depends upon the appreciation of evidence. The High Court also should not interfere with a finding within the jurisdiction of the inferior tribunal except where the findings are perverse and not based on any material evidence or it resulted in manifest injustice (see Trimbak Gangadhar Teland, : AIR1977SC1222 ). Except to the limited extent indicated above, the High Court has no jurisdiction. In our opinion therefore, in the facts and circumstances of this case on the question that the High Court has sought to interfere, it is manifest that the High Court has gone into questions which depended upon appreciation of evidence and indeed the very fact that the learned trial Judge came to one conclusion and the appellate bench came to another conclusion is indication of the position that two views were possible in this case. In preferring one view to another of factual appreciation of evidence, the High Court transgressed its limits of jurisdiction under Article 227 of the Constitution. On the first point, therefore, the High Court was in error.'6. In Laxmikant Revchand Bhojwani and Anr. v. Pratapsingh Mohansingh Pardeshi, 1995 (6) SCC 756 this Court held that High Court was not justified in extending its jurisdiction under Article 227 of the Constitution of India in a dispute regarding eviction of tenant under the Rent Control Act, a special legislation governing landlord-tenant relationship. To the same effect is the judgement in Koyilerian Janaki and Ors. v. Rent Controller (Munisiff) Connanore and Ors., : (2000)9SCC406 .

7. In the present appeals, the High Court appears to have assumed the jurisdiction under Article 227 of the Constitution without referring to the facts of the case warranting the exercise of such a jurisdiction. Extraordinary powers appear to have been exercised in a routine manner as if the power under Article 227 of the Constitution was the extension of powers conferred upon a litigant under a specified statute. Such an approach and interpretation is unwarranted. By adopting such an approach some High Courts have assumed jurisdiction even in matters to which the legislature had assigned finality under the specified statutes. Liberal assumption of powers without reference to the facts of the case and the corresponding hardship to be suffered by a litigant has unnecessarily burdened the Courts resulting in accumulation of areas adversely affecting the attention of the Court to the deserving cases pending before it.'

The Supreme Court has categorically held that the powers under Article 226 and 227 of the Constitution of India are not the extension of powers conferred upon a litigant under a specific statute. The Supreme Court has approved the exercise of this jurisdiction as an extraordinary jurisdiction when there is grave dereliction of duty and flagrant abuse of power by the subordinate Courts and tribunal resulting in grave injustice to any party. Section 33 of the Act mandates a final decision or outcome of the enquiry and not any interlocutory order of the nature prayed for by the petitioner. We cannot assume a role or jurisdiction to pass interlocutory orders merely because the election petitions are not disposed as quickly as expected by the parties. To assume such function and jurisdiction would certainly amount to legislating a provision conferring such powers on the Court. We cannot even, as constitutional functionaries, transgress our well-defined limits and we cannot encroach upon the legislative field. If the election petitions do not get disposed of early it would be for the Legislature and the State Government to consider and not for this Court. The petitioner's remedy would lie somewhere else and certainly not here.

8-A. Considering the present case on the touchstone of the law laid down by the Supreme Court, I am afraid, I cannot extend the jurisdiction under Section 33 of the BMC Act in the garb of exercise of power under Article 226 of the Constitution of India. The election Court has considered the case in a correct perspective and has rightly refused to grant interim orders. There is absolutely no dereliction of duty or abuse of power or any injustice caused to the petitioner, requiring this Court to interfere with the impugned order. Besides, we have to respect the popular will in the democratic set up and we cannot destroy or defeat the people's verdict by granting an injunction to the petitioner against the elected candidate, preventing her to remain faithful to the people's will and the verdict and restrain her from functioning as an elected candidate in the interest of the people. We cannot assume that the elected candidate would not function properly and would abuse her position and would misuse the funds. The very same allegations can be made against the petitioner, if she were to be declared elected. Such wild and baseless allegations and assumptions cannot be made sound basis for preventing an elected candidate from discharging her duties in accordance with law and the mandate of the people.

9. There is absolutely no merit and substance in the present petition.

10. The rule is discharged. Petition is rejected.

11. The election Court shall decide the petition in accordance with law andserially in accordance with the pendency of the election petitions without doinginjustice to the old election petitions.


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