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ibrar HussaIn Vs. R.B. Kunwar Sardar Singh and anr. - Court Judgment

LegalCrystal Citation
Subject Election
CourtAllahabad
Decided On
Reported inAIR1943All306
Appellantibrar Hussain
RespondentR.B. Kunwar Sardar Singh and anr.
Excerpt:
- - in relation to a writ of habeas corpus a question arose whether the high court could award costs against an unsuccessful applicant and in ramammal v......declaration that the decree passedin the election petition case no. 2 of 1937--of the court of the district judge of naini tal--was contrary to law and unenforceable and not fit to be executed.2. on 13th january 1930, the plaintiff sardar singh was elected chairman of the district board of moradabad. a few days later on 28th january 1936, a petition was filed by chhotey lal and ram kumar challenging his election and this petition was referred for decision to mr. hamilton by the local government under section 850, district boards act. one of the charges on which the election of sardar singh was challenged related to certain corrupt practices which were indulged in the election, and a question arose whether an enquiry could be directed in this matter in deciding the election petition; and.....
Judgment:

1. This is an appeal against a judgment and decree, dated 18th March 1939 of the Civil Judge of Moradabad in a suit for declaration that the decree passed

in the election petition case No. 2 of 1937--of the Court of the District Judge of Naini Tal--was contrary to law and unenforceable and not fit to be executed.

2. On 13th January 1930, the plaintiff Sardar Singh was elected Chairman of the District Board of Moradabad. A few days later on 28th January 1936, a petition was filed by Chhotey Lal and Ram Kumar challenging his election and this petition was referred for decision to Mr. Hamilton by the Local Government under Section 850, District Boards Act. One of the charges on which the election of Sardar Singh was challenged related to certain corrupt practices which were indulged in the election, and a question arose whether an enquiry could be directed in this matter in deciding the election petition; and by an order, dated 28th November 1936, Mr. Hamilton held that evidence, was permissible with regard to corrupt practices. On 30th March 1937 Mr. Hamilton pronounced the final order in the case by which he declared the election to be invalid and he further disqualified Sardar Singh from seeking election for a period of four years. The Government, however, later on set aside the disqualification and directed a fresh election to be held.

3. The second election took place on 5th July 1937 and Sardar Singh was again elected Chairman of the Board. A second election petition was filed by the defendants, Ibrar Husain and Ram Kumar--the former of whom was a member of the District Board and the latter was one of the electors in the District Board constituency--challenging the election of Sardar Singh, and again the election was challenged inter alia on the ground of indulgence of corrupt practices. This petition was referred by the Local Government under Section 35C, District Boards Act, for decision to Mr. Gurney, and again a question arose before Mr. Gurney whether in deciding the election petition the charge of corrupt practices could be investigated and a further question was also raised before Mr. Gurney whether he had any jurisdiction to award costs. Mr. Gurney took the view that evidence with regard to corrupt practices was permissible and on 25th May 1938 he passed final orders in the case by which he set aside the election and directed a sum of Rs. 4148-5-0 as costs to be paid by Sardar Singh to the petitioners Ibrar Husain and Ram Kumar and he further disqualified Sardar Singh from election for a period of five years. Mr. Gurney at all material times was the District Judge of Kumaon. In due course, after that order was passed by Mr. Gurney a decree was prepared in the case declaring the election to be invalid and awarding Rs. 4148 5-0 as costs to Ibrar Husain and Ram Kumar against Sardar Singh. In due course, this decree was sent for execution to the Collector of Moradabad and there certain property owned by Sardar Singh was attached.

4. As a result on 4th August 1938, Sardar Singh raised an action in the Court of the Civil Judge of Moradabad against Ibrar Husain and Ram Kumar for a declaration that the decree passed by the District Judge of Kumaon in the election case No. 2 of 1937 in so far as it directed costs against Sardar Singh and in so far as it disqualified Sardar Singh from seeking election for a period of five years was ultra vires and was not capable of enforcement. The suit was contested by Ibrar Husain and Ram Kumar on various pleas of law and fact, but the trial Court overruled all the defences and granted to the plaintiff the declaration claimed for. Against this decree the defendant, Ibrar Husain has made this appeal and the main question for our consideration in this case is whether the order of Mr. Gurney passed in the election case No. 2 of 1937 in the circumstances mentioned above was within jurisdiction in so far as it disqualified Sardar Singh from seeking election for a period of five years and in so far as it directed him to pay costs of Ibrar Husain and Ram Kumar or not. We have already stated that Mr. Gurney at the time when he investigated the election case and pronounced his orders was the District Judge of Kumaon. The final orders which he has passed in the election case have been expressed in the form of a decree and that decree was later on sent for execution to the Collector of Moradabad, who in enforcement of the decree, attached the property of Sardar Singh. If the order of Mr. Gurney, dated 25th May 1938, could be regarded as a decree there would remain not much difficulty in the case. And the first question which arises for our consideration is what is the true nature of the orders passed by Mr. Gurney on 25th May 1938, and whether they could be regarded a decree as law understands that expression. The right to challenge the election of a Chairman of the District Board is a creature of statute and is governed by Section 35C, District Boards Act. That section provides that:

When the question is raised by a petition preferred to the Local Government by an elector entitled to vote in any of the circles of a board, or by any member of the board, whether the chairman of a board has been duly elected or nominated under the provisions of Section 35 or Section 35B, the Local Government shall, without considering the merits of the question raised, refer it for decision to a judicial officer not below the rank of a District Judge.

5. It is in pursuance of the powers conferred by this section that the Local Government had referred the election petition made by Ibrar Husain and Ram Kumar challenging the election of Sardar Singh to Mr. Gurney And the question is whether this reference was to Mr. Gurney as a persona designata or as District Judge of Kumaon. There is another section in the District Boards Act which empowers the electors of the district board to challenge the election of a member of the district board, and Section 18 of the Act provides for the formation of a tribunal to investigate the election petition relating to a member of the board. Here again, the statute provides that the election petition relating to a member 'shall be heard by the District Judge within whose jurisdiction the constituency concerned is situated.' A question arose whether the orders passed by a tribunal investigating an election petition against a member under Section 18, District Boards Act, could be regarded as a decree or orders passed by a Court which were capable of revision by this Court and in Ghulam Nizamuddin v. Akhtar Husain Khan : AIR1933All764 , Mukerji and Bennet JJ. held that the District Judge under Section 18, District Boards Act, acts as a persona designata and was not a Court. In Sardar Singh v. Chhotey Lal : AIR1940All193 , a question arose whether an order passed by a District Judge acting under Section 35C, District Boards Act, with regard to a matter concerning the election of the chairman was subject to an appeal to the High Court or not and again I Bennet and Verma JJ. held that the District Judge under Section 350, U. P. District Boards Act, acted as a persona designata and not as la Court. These authorities are binding upon jus and they are decisive on the question that the District Judge under Section 35C, U. P. District Boards Act, functions as a persona designata and not as a Court and any order passed by him under Section 350 could not be regarded as a decree of the Court.

6. If the orders of the District Judge under Section 350, District Boards Act, are orders passed by him as a persona designata and not as a Court, then the validity of those orders will depend upon the statutory powers which are conferred upon the persona designata, and this raises the question whether there is any provision in the District Boards Act which empowers the District Judge sitting as a persona designata to try an election matter relating to a chairman of the District Board to pass any order of costs and of disqualification from seeking the office of chairman for any period of time. Now the controversy on this part of the case is two-fold. The contention of the defendant is that first of all there is a statutory power given to the District Judge to award costs and to disqualify the chairman from seeking further election; and, secondly, it is contended that there is inherent power implied in his favour to do so. The controversy with regard to statutory powers is a simple one and can be shortly stated. The U. P. District Boards Act confers rights upon certain persons to challenge the election both of a member of the district board and of the chairman of the district board, and the Act provides for respective tribunals where these elections can be challenged. The provisions dealing with the challenge of the election of a member are contained in Sections 15 to 26 of the statute and they occur in chap. 2, District Boards Act. The provisions dealing with the challenge of the election of the chairman are contained in Sections 35 and 35A to 35G of the statute and they occur in chap. 3 of the Act. The statutory provisions relating to the election of a member are more detailed and specific and there are specific provisions for investigation of corrupt practices, and for disqualifying a member who has been guilty of corrupt practices and for awarding of costs. But there is no provision in Chap. 3 which deals with election disputes relating to the chairman about awarding of costs or about investigation of the question of corrupt practices or about disqualifying the chairman from seeking further election. And the main controversy in the case is whether the provisions contained in the statute relating to a member's election should not mutatis mutandis be applied to the election of chairman also. In our opinion, there is great difficulty in doing so.

7. The language of the two provisions is distinct and definite, and it is not possible to apply the provisions which relate to the election of members to the election of a chairman for one simple reason that they relate to two distinct subjects and to two distinct matters. At the time when these election petitions against Sardar Singh were being investigated before Mr. Hamilton and before Mr. Gurney this difficulty was realised and a question arose whether evidence relating to corrupt practices could be investigated or not. In the later enquiry which took place before Mr. Gurney a definite issue was framed to the effect whether an order of disqualification or of costs could be passed by the District Judge or not. Both Mr. Hamilton and Mr. Gurney found it difficult to rely upon any statutory provision to investigate the charges of corrupt practices, but relying upon certain implied powers they investigated the question. Their view of the matter was that in order to determine whether an election had properly taken place or not, the Court could investigate the question whether election has not been obtained by unfair means. It may be that in order to decide whether a fair and proper election has taken place, evidence relating to corrupt practices could be led in the case and investigated. It may also be that in order to decide whether a proper election has taken place or not the Court is entitled to rely upon such evidence and come to a finding that a proper election has not taken place. But the question whether the District Judge who is trying a matter under Section 350, District Boards Act, as a persona designata has any power to impose a sentence of disqualification for any period of time and to award costs which could be recovered by attachment and sale of a person's property are different matters altogether and they could rest only upon statutory powers conferred upon the District Judge. If we were now to examine the powers of the District Judge and of the Local Government given under Section 35C of the Act, we find, that the only powers given in addition to those which we have already quoted in the earlier portion of this judgment are relating to security and passing of certain orders which are expressed in these words:

Provided that security of Rs. 500 in cash shall be filed with the petition and that such security shall be forfeited to Government on the recommendation of the judicial officer to whom the petition has been referred if the petition is found by him to be frivolous or vexatious.

(2) The judicial officer shall, on a date fixed by him, call upon the parties to appear before him and produce such evidence as they desire in support of their case, and shall then proceed to pass orders on the petition.

(3) No suit or application challenging the election of a chairman of a board shall lie in any civil or any other Court.

8. It will thus be seen that under the statute the Local Government is required to refer the petition to a judicial officer not below the rank of the District Judge and the judicial officer is required to pass orders on the petition. What orders he could pass are not specified in the statute but from the nature of the case and the language of Section 350 the orders which the District Judge could pass must relate to the question whether a chairman has been duly elected or nominated. To impose upon the chairman, whose election was in question, a sentence of disqualification restraining him from seeking election for a number of years and to impose upon him the liability to pay costs which might be recovered by a process of execution--these are not incidental orders which have to be made in order to determine the validity of an election and such orders can only be passed under the express terms of the statute. In relation to a writ of habeas corpus a question arose whether the High Court could award costs against an unsuccessful applicant and in Ramammal v. Vijayaraghavalu ('33) 20 A.I.R. 1933 Mad. 102, a Full Bench of the Madras High Court in declining to assume jurisdiction observed:

However, costs are a creature of statute or statutory rules and, in the absence of either in this case, we must hold that we have no jurisdiction to award costs.

9. In our opinion, so far as the statute goes, there is no power under the Act given to the District Judge in trying a matter under Section 350 of the Act, to award costs which could be enforced in execution or attachment or to pass a sentence of disqualification. There remains now the question of inherent powers which the law implies in favour of the District Judge when acting under Section 35C, District Boards Act, not as a Court but as a persona designata. It is true that

where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution.

10. But it is difficult to see how for the execution of the jurisdiction conferred upon the District Judge under Section 35C it is necessary to imply in his favour a power to pass a sentence of disqualification and to impose the liability of costs. The jurisdiction conferred upon the District Judge requires the determination of the complaint as to validity of the election and with the determination of this complaint the jurisdiction is fully executed. As a consequence of this determination it is not necessary that the chairman whose election was in question should be disqualified or should be made to pay costs and if these orders were not necessary they could not be implied and if they were proper or otherwise advisable it was for the Legislature to provide for them. This Court has taken the view that the District Judge acts as a persona designata and not as a Court and his orders are not open to appeal or to revision and it would be dangerous proposition to hold that a persona designata under implied powers can pass orders of disqualification and of payment of costs which can be enforced and executed by the process of law and yet against which the aggrieved party has no remedy in any Court. The appeal, therefore, fails and is hereby dismissed with costs.


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