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Rameshwar Dayal Vs. Sub-divisional Officer Ghatampur and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Appln. No. 138 of 1961
Judge
Reported inAIR1963All518
ActsUttar Pradesh Panchayat Raj Act, 1947 - Sections 12C(4); Uttar Pradesh Panchayat Raj Rules, 1947 - Rule 25; Code of Civil Procedure (CPC) , 1908 - Sections 94 and 151 - Order 39, Rule 2 - Order 41, Rule 5; Representation of the People Act, 1951 - Sections 90(2) and 92
AppellantRameshwar Dayal
RespondentSub-divisional Officer Ghatampur and ors.
Appellant AdvocateGopi Nath, ;Triloki Nath, ;J. Swarup and ;S.C. Khare, Advs.
Respondent AdvocateN.C. Upadhya and ;B.P. Agarwal, Advs.
DispositionPetition dismissed
Excerpt:
civil - election of pradhan - section 12 c(4) of u.p. panchayat raj act, 1947, sections 94 and 151 and order 39 rule 2 and order 41 rule 5 of code of civil procedure, 1908 and sections 90(2) and 92 of representation of the people act, 1951 - election petition filed by pradhan against the elected pradhan - power of sub-divisional officer - no power to grant interim relief and no power to withhold the transferring of the charge of the office of pradhan during pendency of petition. - - the election of a person as pradhan cannot be called in question except by an application presented to the proscribed authority on the ground that the election had not been a free election for a certain reason, or that it had seen materially affected by the improper acceptance or rejection of a nomination,.....desai, c.j. 1. this is a petition under article 227 of the constitution for quashing of an order passed by opposite party no. 1 and for a direction to him to stay transfer of the charge of the office of pradhan to opposite party no. 2 and not to remove the petitioner from the office of pradhan during the pendency of an election petition filed by him against the election of opposite party no. 2 as pradhan. on 4-5-1961 we dismissed the petition and said that the reasons for dismissing it would be placed on record later. we now give the reasons for our order.2. the petitioner was elected as pradhan of a gaon sabha in 1955. the next election for the office of pradhan was held in december, 1960; opposite party no. 2, and the petitioner contested the election, and opposite party no. 2 was.....
Judgment:

Desai, C.J.

1. This is a petition under Article 227 of the Constitution for quashing of an order passed by opposite party No. 1 and for a direction to him to stay transfer of the charge of the office of Pradhan to opposite party No. 2 and not to remove the petitioner from the office of Pradhan during the pendency of an election petition filed by him against the election of opposite party No. 2 as Pradhan. On 4-5-1961 we dismissed the petition and said that the reasons for dismissing it would be placed on record later. We now give the reasons for our order.

2. The petitioner was elected as Pradhan of a Gaon Sabha in 1955. The next election for the office of Pradhan was held in December, 1960; opposite Party No. 2, and the petitioner contested the election, and opposite party No. 2 was declared elected. The petitioner filed an election petition in the Court of opposite party No. 1 challenging the election of opposite party No. 2 on various grounds, He also applied to opposite party No. 1 for not transferring the charge of the office from the petitioner to opposite party no. 2 pending disposal of the election petition, but the opposite party No. 1 dismissed his application on the ground that he had no jurisdiction to stay transfer of charge. It is this order of opposite party No. 1 that the petitioner seeks through this petition to be quashed. When this Court admitted this petition it directed that until further orders the petitioner would not be removed from the office of Pradhan, with the consequences that the petitioner continued to hold the office of Pradhan till 4-5-1961.

3. A Pradhan of a Gaon Sabha is elected by its members and his term commences on the date of the constitution of the Gaon Panchayat, or on the date of his election, whichever is later, and expires with the term of the Gaon Panchayat; vide Section 11-B of the Panchayat Raj Act. The election of a person as Pradhan cannot be called in question except by an application presented to the proscribed authority on the ground that the election had not been a free election for a certain reason, or that it had Seen materially affected by the improper acceptance or rejection of a nomination, or by gross failure to comply with the provisions of the Act; vide Section 12-C. An application to question the election (which would be referred to as an election petition henceforth) may be presented by any candidate at the election or by an elector. Sub-section (4J of Section 12-C reads as follows:

'The authority to whom the application under Sub-section (1) is made shall, in the matter of -- (i) hearing of the application and the procedure to be followed at such bearing, (ii) setting aside the election or declaring the election to be void or declaring the applicant to be duly elected or any other relief that may be granted to the petitioner, have such powers and authority as may be prescribed.'

The word 'prescribed' means prescribed by the Act or rules made thereunder; see Section 2 (p). A Pradhan may resign his office and thereupon his office shall become vacant; vide Section 12-F. If a vacancy in the office of Pradhan arises by reason of his death, removal or resignation or avoidance of his election it has to be filled for the remainder of his term in the manner provided for a regular election; see Section 12-H. Though the term of a Pradhan expires with the term of the Gaon Panchayat he continues in office until his successor is elected; vide Section 12-K. The term of a Gaon Panchayat is five years as laid down in Section 12.

4. Section 110 of the Act empowers the State Government to make rules to carry out the purposes of the Act, and in particular to provide for the presentation and disposal of election petitions, taking of oath by Pradhan etc. Rules made by the State Government regarding election of Pradhan are contained in Chapter 1-E of the Panchayat Raj Rules. Rule 20-1 provides that when there is only one contesting candidate the Returning Officer shall forthwith declare him 'to be duly elected'. If a poll takes place, Rule 21-Q requires him to declare a candidate securing the largest number of votes 'as elected'. Rules regarding election petition are contained in Chapter I-F. Rule 25 lays down that, subject to the provisions of the Act and the Rules, every election petition will 'be tried by the Sub-Divisional Officer, as nearly as may be, in accordance with the procedure applicable under the C.P.C., 1908, to the trial of suits'. He may summarily dismiss the petition on finding, after hearing the petitioner or his counsel, that it has no substance. He may maintain only a minimum of the evidence and not a full record of it. After hearing the petition if the Sub-Divisional Officer finds that the election of the opposite party was valid he must dismiss it, and if he finds that the election was invalid he must either declare a casual vacancy to have been created or, declare another candidate to have been 'duly elected'. This is ail the law regarding election petitions. It will be' seen that neither the Act nor the rules contain any provision expressly authorizing a Sub-Divisional Officer hearing an election petition to grant any interim relief for the duration of the petition.

5. Sri Gopi Nath contended that a Sub-Divisional Officer has got all the powers conferred upon Courts by Sections 94 and 151, and Order 39, Rule 2 and Order 41, Rule 5, C.P.C. For this proposition he relies upon Section 12-C (4) and Rule 25 referred to above. A Sub-Divisional Officer has only such powers in respect of the hearing of the election petition and the procedure to be followed at the hearing as may be prescribed by the State Government, and Rule 25 contains the prescribed powers. The only power conferred upon him is to try the petition in accordance with the procedure applicable under the C.P.C. to the trial of suits. All that is meant by Rule 25 is that an election petition is to be tried as if it were a suit, i.e. that those provisions of the C.P.C. which relate only to the trial of suits will be followed by the Sub-Divisional Officer when hearing the petition. Though the C.P.C. lays down rules of procedure, it does more than laying down the procedure for the trial of suits; it also confers various incidental powers upon the Courts trying suits. Rule 25, however, applies only those provisions of the Code which relate to the trial of suits to the trial of election petitions; in other words, it does not confer upon a Sub-Divisional Officer all the powers that are conferred upon a Court by the C.P.C. This is quite consistent with Section 12-C (4); the State Government is competent to prescribe the powers only in respect of the hearing of an election petition and the procedure to be followed at the hearing.

6. Section 90 of the Representation of the People Act, 1951, is to the effect that every election petition 'shall be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under the C.P.C., 1903 to the trial of suits', and Section 92 is to the effect that

'The Tribunal shall have the powers which are vested in a Court under the C.P.C., 1908, when trying a suit In respect of the following matters:

(a) discovery and inspection

(b) enforcing the attendance of witnesses, etc.' The fact that Section 92 was enacted conferring certain, powers in respect of the discovery and inspection and enforcing attendance of witnesses, etc., even though the Tribunal was already empowered by Section 90 to try the election petition as if it were a suit, shows that the trial of the petition did not include such matters as discovery and inspection, enforcing attendance of witnesses etc. The C.P.C. does contain provisions in respect of the matters enumerated in Section 92, and if the election Tribunal had been invested by Section 90(2) with all the powers conferred upon the Courts by the C.P.C., Section 92 would have been wholly redundant. Section 90(2) should be interpreted in such a manner as to avoid redundancy or duplication; so it must be interpreted to mean that the Tribunal is only authorised to take those steps for the trial of the petition which a Court has to take for the trial of a suit. The steps that a Court has to take in the trial of a suit are receiving the plaint, issuing notices to the defendant, receiving his written statement, examining the parties framing issues, receiving plaintiff's evidence, receiving defendant's evidence, hearing arguments and delivering the judgment. Section 90(2) means that an election tribunal has to take the same steps at the hearing of the petition and nothing more. The C.P.C. makes a distinction between what is a step in the trial of a suit, i.e. what is included in the trial of a suit and what is not included in the trial of a suit. Even when a Court tries a suit it may also decide a case. For example, If while trying a suit it issues an injunction it amounts to deciding a case; it is not a step in the suit because It does not advance the termination of the suit in any way. There are numerous authorities dealing with Section 115 which explain what proceedings taken under the Code itself amount to a case as distinct from the suit. It seems to us that generally speaking all acts done or orders passed by a Court trying a suit which do not form part of the suit itself, but would amount to a case within the meaning of Section 115, are outside the jurisdiction of an election tribunal. Section 116A(2) of the Representation, of the People Act lays down that a High Court hearing an appeal from an order made by an election tribunal 'shall have the same powers, jurisdiction and authority, and follow the same procedure as if the appeal were an appeal from an original decree passed by a Civil Court', and Sub-section (4) provides that if the appeal is from an order declaring the election of all or any of the returned candidates to be void it may stay its operation. Sub-section (2) makes a clear distinction between 'powers, jurisdiction or authority' and 'procedure', showing that 'procedure' does not include 'powers', 'jurisdiction' and 'authority'. An injunction is a matter of power and not of procedure, because it does not at all affect the progress of the suit. A suit can go on or may remain stayed, whether an injunction is granted or refused. The granting or refusing an injunction is a matter distinct from the suit, and a Court has no jurisdiction to grant an injunction unless power is specially conferred upon it. It was a power of Equity Courts; ordinary Common Law Courts in England could not grant injunctions; vide 14 Halsbury's Laws of England, para 693. The provisions contained in Section 90 were interpreted by the Supreme Court in Harish Chandra v. Triloki Singh : [1957]1SCR370 . The question that arose before the Supreme Court was 'when a trial commences'. One party contended that it commences with the filing of documents and examining witnesses, while the other party contended that it commences with the receipt of the election petition transferred to the Tribunal under Section 86. What the Supreme Court held was that 'trial' includes the matters preliminary to the hearing of evidence, such as the receipt of written statement and settlement of issues. Another contention that was advanced before the Supreme Court was that the granting of an amendment is not a matter of 'procedure' but a matter of 'power', and that since Section 92 does not confer the power of allowing amendments upon the election tribunal, it has no power to allow an amendment. Venkata Rama Ayyar, J. did say at page 454 dealing with the contention that 'we do not see any antithesis between 'procedure' in Section 90 (2) and 'powers' under Section 92' but made it clear that an amendment is a procedural step and Section 90 (2) allows an election, tribunal to amend pleadings. Allowing an amendment of pleadings may be a part of the trial of an election petition, but it does not follow that an order granting interim relief to the petitioner is a part of it. Chagla, C.J. observed in Sitaram v. Yograj Singh : AIR1953Bom293 that: 'it is difficult to make a distinction between procedure-and the powers of a Court as suggested by Mr. Patwardhan. The whole of the C.P.C., as its very name implies, deals with procedure. In the course of procedure the Court always exercises powers and when the Court is exercising its powers it is exercising them in order to carry out the procedure laid down in the Code. Therefore procedure and powers in this sense are really interchangeable terms and it is difficult to draw a line between procedure and power. The power conferred under Section 92 is not any substantive power, it is a procedural power, a power intended for the purposes of carrying out the procedure before the Tribunal.'

There also the learned Chief Justice dealt with the power of an election tribunal to allow amendments and held that the power was conferred by Section 90 (2). When the legislature itself distinguished between the power of trying a suit in accordance with certain provisions of the C.P.C. and the powers conferred by other provisions of it, it is difficult to agree with the above observations of the learned Chief Justice. The latest observation of the Supreme Court in Mallappa Basappa v. Basavaraj Ayyappa : [1959]1SCR611 , leave the matter in no doubt. Bhagwati, J. said at page 704:

'It is clear from the above that the section only provides for the procedure for the trial of election petitions by the Tribunals. It provides for the examination of witnesses, the rules of evidence to be followed, the joinder of candidates not already respondents as respondents and the amendment or amplification of particulars of a corrupt practice already alleged in the petition. The powers of a Tribunal are, however, separately dealt with in Section 92. It will be noticed that the procedure for trial before the Tribunal and the powers of the Tribunal are treated separately thus distinguishing between the procedure to be followed by the Tribunal and the powers to be exercised by it ....... .The effect of all these provisions really is to constitute a self contained Code governing the trial of election petitions and it would appear that in spite of Section 90(1) of the Act, the provisions of Order 23, Rule 1, C.P.C. would not be applicable to the trial of election petitions by the Tribunals.'

7. Since the language used in Rule 25 of the Panchayat Raj Rules is exactly similar to that used in Section 90 (2) of the Representation of the People Act it must be interpreted in the same manner. The two provisions are 'pari materia'. It is immaterial that there is no rule corresponding to Section 92 of the Representation of the People Act. Once a certain meaning is assigned to the words used in Section 90 (2), even though with the aid of Section 92, the same meaning should be given to the words used in Rule 25, even though the Rules contain no provision corresponding to Section 92.

8. Section 151 expressly speaks of 'power' to make orders. Whatever may be said in respect of orders of a procedural nature, orders regarding matters not covered by the Code are not orders regarding procedure but are an exercise of power. Injunction is a relief according to Sections 52 and 53 of the Specific Relief Act, and a relief is a matter of power, not procedure. We are, therefore, of the opinion that a Sub-Divisional Officer hearing an election petition has not the powers conferred upon Civil Courts by Sections 94 and 151 and Orders 39 and 41, C.P.C.

9. Section 94, C.P.C., authorises a Court to grant a temporary injunction, as provided in the rules, to prevent the ends of justice from being defeated. Rules 1 and 2 of Order 39 provide for the grant of temporary injunctions. Rule 1 admittedly does not apply. Sri Gopi Nath tried to make out that the interim relief sought from the Sub-Divisional Officer was covered by Rule 2 but ultimately had to concede that it also did not apply. For its applicability one condition was essential to be fulfilled and it was that there was a suit for restraining the defendant from committing a breach of contract or other injury of any kind. There was admittedly no question of a breach of contract being committed, but it was argued that the election petition is a suit for restraining opposite party No. 2, the candidate declared elected, from committing an injury to the appellant. Since an election petition is, vide Rule 25, to be tried as if it were a suit, there would be no difficulty in holding that it is a suit within the meaning of Order 39, Rule 2. In Jagan Nath v. Jaswant Singh : [1954]1SCR892 , the Supreme Court applied even to an election petition under the Representation of the People Act the provisions of Order 1, Rules 9 and 10 and 11, which are applicable to suits. The observations in Kamaraja Nadar v. Kunju Thevar : [1959]1SCR583 , that an election petition is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law, or that it is not a suit between two persons and sis only a proceeding in which the constituent itself is the principal party interested, do not mean that even for the purpose of procedure at the trial of an election petition it is not to be treated as a suit notwithstanding the provisions of Section 90 (1) of the Representation of the People Act, or of Rule 25 of the Panchayat Raj Rules. In : [1959]1SCR611 it was held by the Supreme Court that an election tribunal cannot allow a petitioner to withdraw or abandon a part of his claim in exercise of the power alleged to have been conferred by Order 23, Rule 1, but it was so held, as already pointed out, simply on the ground that the provision in Order 23, Rule 1, is not a provision relating to the trial of a suit and the special provisions contained in Section 108, etc., render the power conferred by Order 23, Rule 1, inapplicable. The real difficulty of Sri Gopi Nath, as was realised by himself later, was that the election petition was not aimed at restraining opposite party No. 2 from committing an injury. There was no question of his committing a breach of contract, but it was sought to be made out that opposite party No. 2 was not duly elected and that by claiming to be duly elected he was causing an injury to the appellant. The claim of the appellant that he is being injured by the opposite party's claim to be the duly elected Pradhan is untenable. The word 'elected' used in Section 12-K means 'elected in fact' regardless of whether the election is valid or invalid, in other words, declared by the Returning Officer to be elected under Rule 20-1 or 21-Q. The words 'elected' and 'duly elected' are used by the draftsman in the Act and in the Rules at random and the words 'duly elected' used in the above-mentioned two rules mean nothing more than 'elected'. The election of any candidate can be held by an election tribunal to be invalid and any elected candidate may be unseated; therefore the use of the word 'duly' means nothing. Whether an election is valid or not cannot be known until an election petition has been filed and determined; the question whether a person has been elected or not cannot remain in abeyance so long as an election petition has not been filed and it has not been decided whether his election was valid or not. It was certainly not the intention behind Section 12-K that a Pradhan shall continue in office until the election of another person as Pradhan in his place has been declared valid by an election tribunal. We have no hesitation in saying that as soon as a returning officer under either of the above-mentioned rules declares another person as elected as Pradhan the previous or sitting Pradhan ceases to hold office. It is not for the sitting Pradhan to say that the election of his successor was invalid and no right has been given to him to remain in office so long as it has not been confirmed by an election tribunal that his election was valid. When an election tribunal upholds the election of the successor it means that the successor was already elected; the upholding of the election cannot itself amount to election. Otherwise it would mean that there is no election so long as an election petition is not filed and decided, which would be an absurd situation. How can there be an election petition, if there is none elected? It is not of any consequence that Section 12-K does not use the words 'declared elected'; there is no act other than that of declaring a person as elected which can amount to that of election and there is no dale other than that on which the declaration is made, which can be said to be the date of his election. A person gets rights from the moment of his being declared as elected. There is a formality attached to the act of declaration of election, and it is because it has a legal value, which cannot be other than that it brings into existence the election of a Pradhan. Rule 21-R requires the returning officer to report the declaration to the District Magistrate and inform the secretary of the gaon-sabha. The limitation for filing an election petition runs from the date of the declaration, The constitution of a gaon-Panchayat is dealt with in Rule 19-K; as soon as at least two-thirds of the seats of members and the office of the Pradhan have been filled up the District Magistrate must notify that the gaon-Panchayat has been duly constituted. This means two things, (1) that the notification by the District Magistrate itself amounts to constitution of the gaon-panchayat and (2) that for the constitution of the gaon-panchayat the mere fact of election of a Pradhan is required and not that his election has been held to be valid in an election petition. As soon as practicable after the constitution of a gaon-penchayat its Pradhan must take the oath of office, vide Rule 86. In all these provisions it is the fact of election, evidenced by the declaration of election, that is considered and not the upholding of the election as valid by an election tribunal. The term of a Pradhan commences on the date of the constitution of the gaon-panchayat; it thus commences even, though the election of the Pradhan has not been confirmed by an election tribunal and may even be in contest before it. If a Pradhan commences to act as such on the date of the declaration of his election, he cannot contend that the term will not end with the declaration of election of his successor but will continue so long as his successor's election is not confirmed by an election tribunal. The Act does not contemplate that a Pradhan's term should continue even after another gaon-panchayat has been constituted. The applicant's term expired long before he filed the election petition and he also ceased to hold the office on the date on which the opposite-party, No. 2, was declared elected. He has, therefore, absolutely no right left as Pradhan and there is no question of his being injured by opposite party No. 2's claiming to be a Pradhan. The election of opposite party No. 2 as Pradhan may be invalid and his claim that he is Pradhan may be untenable, but the appellant has no right whatsoever to remain in office as Pradhan. Under rule 60-A he is bound to hand over charge of the office to the new Pradhan as soon as he takes the oath of office. If he wilfully neglects or makes a default in making over charge, it can be taken over through police help. The relief claimed by the appellant in the petition was that he may be declared as elected or the election of opposite party No. 2 be set aside and a vacancy in the office be declared. There was no relief claimed on the basis of his being the sitting Pradhan, i.e. on the basis of his being elected as Pradhan in 1955. It means that he did not complain of any injury to him in his capacity as a sitting Pradhan.

10. An election petition, though it is deemed to be asuit, cannot be said to be a suit for injunction; at the most it may be said to be a suit for declaration with consequential relief, fn Gur Prasad v. Rameshwar Prasad : AIR1933All344 , a Bench of this Court granted temporary injunction in a suit for declaration that the plaintiffs were the directors of a company and not the defendants; it was not disputed in that case that temporary injunction could be granted. Consequently that case is no authority for the proposition that an election petition is a petition for injunction. Mahomed Ekram Khan v. Mirza Muhammad Bakar : AIR1935All106 , also is no authority because the suit there was expressly for injunction. We hold that neither is the election petition a petition for injunction nor are the opposite parties alleged to be committing any injury to the appellant which they might be restrained from committing. Reliance on Order 39, Rule 2, is, therefore, in vain.

11. Section 151, C.P.C., as is well-known, does not confer any power upon a Court but simply recognizes the existence in every Court of the power to make such orders as may be necessary in the ends of justice or to prevent abuse of the process of Court. This being the case, the appellant cannot contend that Rule 25 confers upon an election tribunal the power of making such orders as may be necessary for these purposes. If Section 151 does not confer this power upon a Civil Court, it certainly does not confer it upon an election tribunal. If an election tribunal, can make orders for these purposes, it must be because it has the power just as any Court has the power, i.e. because it has its own inherent power. We shall discuss this matter subsequently.

12. Coming to Order 41, Rule 5, C.P.C., we find that it does not apply in the present case because an election tribunal is not an Appellate Court, there is no decree to be reversed by it the execution of which may be suspended during the hearing before it and the rule does not relate to a trial of a suit. Further the essential condition for an order tinder Order 41, Rule 5 that substantial loss may result to the party applying for stay of execution unless the order is made, is not fulfilled in the present case because, as already shown, the appellant has no right to be effected if opposite party No. 2 is not restrained from exercising his powers as Pradhan.

13. In the result we find that even if the Sub-Divisional Officer had all the powers that are conferred by the C.P.C. he could not grant the interim relief sought for.

14. Sri Gopi Nath next contended that the Sub-Divisional Officer had the implied power to grant the interim relief; he said that the power was to be inferred from Rule 25 (3). The provision that he can declare a vacancy or declare the appellant to be duly elected in place of opposite party No. 2 does not mean that he can, before so declaring order opposite party No. 2 not to perform his duties as Pradhan, and direct the appellant to remain in office as Pradhan. Such a reading of the provision of Rule 25 (3) would be against the various provisions already referred to, viz., the provisions that the appellant's term as Pradhan expired with the term of the gaon-panchayat, that he could not remain in office after the election of opposite party No. 2 that opposite party No. 2 must lake the oath of office at the place and time fixed for the purpose by the block development officer and that as soon as he takes the oath of office, the appellant must hand over charge of the office to him. It is not correct to say that R. 36 simply emphasizes the form of oath; it also imposes the obligation upon the newly elected Pradhan to take the oath, if the block development officer fixes the place and the time for opposite party No. 2's taking the oath of office, the latter would be bound to do so. We do not think that in the absence of express provision the Sub-Divisional Officer had power to direct the block development officer not to fix the place and the time. It became the appellant's duty to hand over charge of the office to opposite party No. 2 on his taking the oath of office and it could not be assumed that the Sub-Divisional Officer had the power to direct that the obligation imposed by Rule 60-A upon the appellant need not be discharged by him. To say that a certain provision of law need not be complied with would require an express provision of law. Under Section 12-E any member who refuses to take the oath of office shall be deemed to have vacated the office forthwith; this automatic effect of the failure to take the oath negatives the power in the Sub-Divisional Officer to direct that opposite party No. 2 need not take the oath, i.e. that no adverse consequence will follow if he does not take it. Opposite party No. 2 became Pradhan since he was declared elected by the returning officer; he had to do no act after the declaration in order to become Pradhan. After becoming Pradhan he has only to perform his duties and he can be prevented, if at all, only from performing them. But that would not have the effect of enabling the appellant to perform them; whether opposite party No. 2 is allowed or not to perform them, the appellant cannot perform them at all.

15. If opposite party No. 2 could be prevented from performing his duties as Pradhan and the appellant also could not perform them, it would mean that there will be nobody to the Act or the Rules. The work of the gaon-panchayat cannot come to a standstill.

16. Sri Gopi Nath referred us to the statement in 31 H.L.E., paragraph 642, to the effect that an authority given by a statute to do certain work authorises the doing not only of all things absolutely necessary for its execution but also of all things reasonably necessary, and also to Matajog Dobey v. H. C. Bhari : [1955]28ITR941(SC) , where Chandrasekhara Aiyar, J. observed at page 936 (of SCR) : (at p. 50 of AIR):

'Where a power is conferred or a duty Imposed by statute or otherwise, and there is nothing said expressly inhibiting the exercise of the power of the performance of the duty by any limitations or restrictions, it is reasonable doing all such acts or employing such means as are reasonably necessary for such execution.'

These are the powers in respect of execution of the orders already passed and not powers to be exercised in anticipation of passing of orders. The S. D. O. may have an implied power to do an act in order to implement the final order that he passed in the election petition, but it does not mean that he has an implied power to pass an order even before he finally decides. Implied power must be reasonably necessary and must not be derogatory to the other provisions of the statute. There is no necessity whatsoever of implying any power in the Sub-Divisional Officer to prevent the transfer of the charge from the appellant to opposite party No. 2. The appellant, as explained earlier, has absolutely no right 'which needed, protection during the pendency of the writ petition. If the election petition succeeds, whether he is declared elected or a vacancy is declared, there will be no difficulty in implementing the order. If the appellant is declared elected he can take back charge of the office from opposite party No. 2 and if a vacancy is declared, an election will take place and whoever is declared elected will take charge of the office from opposite party No. 2. There is no necessity of preventing opposite party No. 2, from performing his duties during the pendency of the election petition; they must be performed and they cannot be performed by anybody except him. We, therefore, reject the claim of Sri Gopi Math that the Sub-Divisional Officer had implied power to grant the interim relief.

17. Sri Gopi Nath's last resort was to the inherent powers. The inherent powers are of a Court and we do not accept that an election tribunal is a Court. Merely be-cause it records evidence, hears parties and decides certain disputes between them it does not become a Court, which is invested with the power of making any order that it considers necessary in the interest of justice or to prevent abuse of the process of Court. Courts derived authority from the Crown, but election tribunals do not and there is no question of their doing justice regardless of rules of procedure, They are created by the statute to decide certain disputes and are bound to decide them strictly according to law after following the prescribed procedure and have jurisdiction to do only that they are expressly empowered to do. Only those Courts which have the general jurisdiction to do justice are competent to pass any orders that they consider necessary in the interest of justice, even though they are not covered by express provisions of the laws of procedure. We have already referred to : [1959]1SCR583 and AIR 1958 SC 598, which explain the nature of election tribunals. In the former case it was observed that an election tribunal possess no common law power. In Hurro Chunder v. Shooradhonnee Debia, 9 Suth WR 402, at page 406, Peacock C. J. observed that 'it is the duty of the Judges to apply the laws not only to what appears to be regulated by their express dispositions, but to all the cases to which a just application of them may be made, and which appears to be comprehended either within the express sense of the law, or within the consequences that may be gathered from it'. Marwood J. observed in Narsingh Das v. Mangal Dubey, ILR 5 All 163, at p. 172 (FB), with reference to the C.P.C. that 'the Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code; but on the converse principle that every procedure is to be understood as permissible till It is shown to be prohibited by the law. The same view was taken in Md. Sulaiman Khan v. Md. Yar Khan, ILR 11 All 267 at p. 287 (FB). We do not think any of those authorities helps the appellant at all. Even if the Sub-Divisional Officer is a Court charged with the duty of seeing that justice is done, he has only to see that justice is being done. The granting of the interim relief is not essential for doing justice to the appellant; it is not justice to give him a relief to which he is not entitled or to prevent another person from exercising his right merely because it is challenged. It was pointed out by one of us in State of U. P. v. Mukhtar Singh : AIR1957All505 , it is not just to stay execution of an order merely because it is appealed from and that justice lies in allowing it to be executed so long as it is not set aside. It would be an act of injustice to treat opposite party No. 2 as not elected even though he has been declared elected and it would further be an act of injustice to let the appellant, whose term has expired and who is left with no right on account of his election as Pradhan in 1955 and who was defeated in the next election, function as Pradhan. There would be absolutely no difficulty in giving effect to whatever order is passed by the Sub-Divisional Officer in the election petition. There is absolutely no question of preventing abuse of process of Court. The appellant does not challenge the termination of his office as Pradhan; what he challenges is the election of opposite party No. 2. The interim relief has no connection with the relief sought in the election petition and even a Court has no inherent power to grant an interim relief not connected with the relief sought in the suit. The appellant's status in the election petition is either that of a defeated candidate or that of an elector but not that of an ex-Pradhan. Therefore no interim relief can be granted to him as ex-Pradhan. It is not correct that he seeks in the election petition the removal of a cloud on his right; he has no right whatsoever until the Sub-Divisional Officer declares him elected. Even if the election of opposite party No. 2 is invalid or void, no vacancy arises so long as it is not declared void by the Sub-Divisional Officer. There is therefore, no vacancy at present. The charge of office must be taken from the appellant even though there may be no duly elected Pradhan; it can be taken by the up-Pradhan or by a panchayat inspector. The absence of a duly elected Pradhan would be no justification for not taking over charge from the appellant

18. In Venkatasubbiah v. Sesha Aiyar, AIR 1924 Mad 797, it was held that an election tribunal has no inherent powers.

19. We are not impressed with the argument advanced in a connected petition by Sri C. S. P. Singh that if the newly elected Pradhan is allowed to take charge, the sitting Pradhan, who challenged his election, may be handicapped in producing evidence before the tribunal; the argument is that the newly elected Pradhan, who is charged by Rule 47 (e) with the maintenance of various registers, may destroy the evidence and the Sub-Divisional Officer would be powerless to do justice. The argument cuts both ways, and moreover there is no such plea taken in any of the petitions for interim relief.

20. We, therefore, hold that the Sub-Divisional Officer had no inherent power also to grant the interim relief.

21. In the end we may point out that an election is not a matter to be lightly interfered with; see : [1954]1SCR892 (supra). These petitions are directed against interlocutory orders and as was pointed out by this Court in Mubarak Mazdoor v. K.K. Banerji : AIR1958All858 , the High Court does not issue a writ in an interlocutory matter though there is no absolute bar. There is nothing extraordinary in this case justifying CUT departure from the normal rule.

22. Some of the companion petitions are against orders of Sub-Divisional Officers, like the present one, and others are against orders of Munsifs. Some of the petitioners filed regular suits for injunction in the Courts of Munsifs and the Munsifs refused injunctions on the ground that the suits were barred. Petitions Nos. 61, 93, 107 and 129 are filed against those orders. In Civil Miscellaneous Case No. 106 of 1961 it was held by our brother Mathur that no petition lies against an order of the Munsif refusing injunction because alternative remedy of appeal is available. We respectfully agree with him.

23. Some of the connected petitions are by electors, but what we have said above holds good in them also. An elector has no right which would require protection through interim relief claimed.

24. In petition No. 171 of 1961 the Sub-Divisional Officer held that he had the power to grant the interim relief but refused it on merits. His order cannot be quashed under Article 227.

25. In petition No. 243 of 1961 also the Sub-Divisional Officer refused the interim relief on merits and this Court has no jurisdiction to quash his order under Article 227.

26. Thus the present petition and the connected petitions deserve to be dismissed.


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