1. Elections to the Municipal Committee, Haryana, in the district of Hoshiarpur, took place on June 18, 1972, and the first meeting of the elected members of the Committee was held on July 8, 1972, for the administration of oath and for the co-option of two women members and one mem-ber of the Scheduled Castes. Proposals were invited for co-option of two women members under the provisions of Section 12-B of the Punjab Municipal Act, 1911, as amended, hereinafter called the Act, and thereafter voting was held by secret ballot. All the members were supplied two ballot papers each on which the names of all the four contesting women candidates were written. The result of the polling was that three of the candidates got four votes each and the fourth candidate got three votes. Three ballot papers were rejected. The convener of the meeting was of the opinion that the members of the Committee having not been able to co-opt two women members and, therefore reported to the Government for nomination of two women members under Section 12-E of the Act. The Government nominated Smt. Sohan Kaur and Smt. Harbans Kaur as members of the Municipal Committee, Haryana, by a notification which appeared in the Punjab Government Gazette dated July 28. 1972. Thereafter, a meeting of the Committee was held on August 4, 1972, for the election of President and Vice-President. In that meeting, the two women candidates nominated by the Government were administered oath of allegiance and thereafter the elections for the offices of the President and Vice-president were held. Ramesh, respondent No. 1, contested the election for the office of the President against Ram Nath appellant but got defeated. He then filed Civil Writ No. 2687 of 1972 in this Court challenging the co-option of the two women members and the consequent election of the President and the Vice-President That petition was contested by Ram Nath on various grounds but was accepted, by the learned Single Judge on October 10, 1972. The present appeal under clause X of the Letters Patent is directed against that judgment.
2. One of the points argued before the learned Single Judge was that the method adopted by the Convener of the meeting on July 8, 1972, for the co-option of two women members under the provisions of Section 12-B of the Act by distributing two ballot papers containing the names of all the four candidates to the members for casting their votes instead of one ballot paper containing the names of all the contesting candidates, was illegal being against the rules. The learned Single Judge accepted this contention in view of his judgment in Civil Writ No. 2734 of 1972, (Narinder Kumar v. State of Punjab), decided on 18-9-1972 wherein a similar procedure had been adopted by the Convence which was declared illegal by him. He consequently declared the co-option of respondents Nos. 4 and 5 to the appeal, nominated by the Government, as illegal. He also accepted the plea that the election of the President and the Vice-President held on August4, 1972, was illegal as respondents Nos. 4 and5, who were not entitled to attend that meeting, attended that meeting and cast theirvotes, in view of his own judgment in Ram Niwas v. State of Punjab, Civil Writ No, 2674 of 1972, decided on 3-10-1972 (Punj). The learned Judge did not accept the plea of the appellant that the writ petitioner, after the co-option of the two women members by the Government under Section 12-B of the Act, took part in the election of the President and, therefore, was estopped from filing the writ petition. Consequently, the writ petition was accepted and the co-option of respondents Nos. 4 and 5 and the elections of the President and Vice-President were quashed.
3. It has been argued by the learned counsel for the appellant that the learned Single Judge erred in law in not accepting his plea that the writ petitioner was estopped from challenging the co-option of the two members, respondents Nos. 4 and 5, and the elections of the President and the Vice-president held on August 4, 1972, on the ground that he knowingly, after the co-option of the two women members, not only took part in the meeting held on August 4, 1972, but also contested the election for the office of President. Reliance is placed, on a Division Bench judgment of the Bombay High Court in Gandhinagar Motor Transport Society v. State of Bombay, AIR 1954 Bom 202, in which the difference between the scope of ordinary legal remedies and extraordinary legal remedies under Article 226 of the Constitution has been vividly pointed out. The relevant observations are contained in paras 4 and 5 of the report which bear reproduction and are, therefore, reproduced. The observations are,--
'(4) Now, as we shall presently point out, the English Courts have taken the view, and in our opinion rightly, that before a question of jurisdiction is raised on a petition, objection to jurisdiction must be taken before the tribunal whose order is being challenged. It is not as if by the petitioner not challenging the jurisdiction of the tribunal that he confers jurisdiction upon that tribunal if that tribunal has no jurisdiction. But what the English Courts have said is that the High Court has been asked to exercise a special jurisdiction, not an ordinary jurisdiction, and the High Court is entitled to know what the tribunal has to say on the question of jurisdiction which the petitioner wants to agitate before the Court. There is another principle underlying this view, and that is that the tribunal which is brought before the Court should itself be given an opportunity to decide that it has no jurisdiction, before the High Court is called upon to give its decision.
It must be borne in mind that in exercising its jurisdiction under Articles 226 and 227 the High Court is not exercising an ordinary jurisdiction. It is always open to a petitioner to assert his rights in a suit properly filed, but when he chooses to assert his rights by calling upon the High Court to exercise its special jurisdiction, the High Court must itself lay down certain principles for the exercise of that jurisdiction and must not makethe exercise of that jurisdiction a matter of ordinary occurrence. A suit may well be filed within the period of limitation, the Judge trying the suit does not non-suit the plaintiff because he came to Court towards the end of the period of limitation; but this Court tells the petitioner 'you must come to this Court expeditiously'.
Equally so a defendant may not raise the question of jurisdiction in the Court of first instance, he may not raise the question of jurisdiction in the appellate Court, he may postpone raising the question of jurisdiction up to the stage of the Privy Council or the Supreme Court, yet if the Court has no jurisdiction, the highest Court in the land will allow the point to he raised and decide it in favour of the defendant. But the principle is different when the petitioner comes to this Court for a writ. The Court must tell the petitioner: 'It was open to you to raise that point before the tribunal whose order you are challenging. You have sat on the fence. you have taken a chance of the tribunal deciding in your favour, and it is not open to you now to come to us and ask for a writ.'
(5) Now this principle was very clearly and very emphatically laid down in 'Rex v. Williams: Philips, Ex. parte', (1914) 1 KB 608. There a person was disqualified from acting as a Justice of the Peace if he was concerned in the business of a baker. A baker who was alleged to have committed an offence under the Bread Act was put up before a bench of two Justices of the Peace and one Justice of the Peace was alleged to be disqualified from acting as a Justice of the Peace because he was concerned in the business of a baker and the accused baker wanted to raise the question of the incapacity of one of the Justice of the Peace before the High Court by a petition. and the High Court realised to give him belief holding that as he had not taken the point before the bench of the Justices of the Peace, he had disentitled himself from obtaining any relief. Channell, J. points out (p. 614):
'............ A party may by his conductpreclude himself from claiming the writ 'ex debito justitiae' no matter whether the proceedings which he seeks to quash are void or voidable. If they are void, it is true that no conduct of his will validate them; but such considerations do not affect the principles on which the Court acts in granting or refusing the writ of certiorari. This special remedy will not be granted 'ex debito justitiae' to a person who fails to state in his evidence on moving for the rule nisi that at the time of the proceedings impugned he was unaware of the facts on which he relies to impugn them'.
Therefore, this is a clear answer to the argument advanced by Mr. Gamadia that the fact that the petitioner did not challenge the jurisdiction of the Government, did not by consent or waiver confer jurisdiction upon the Government. As we have already pointed out, the question is not that if the Government'sdecision was without jurisdiction, it became a competent decision merely because the petitioners did not object to the jurisdiction. But the question is whether the petitioners not having challenged the jurisdiction of the Government, this Court will give them relief by exercising its very special and discretionary jurisdiction. Rowlatt. J. in a very short judgment emphasises the fact that the rule that the Courts in England have adopted is a very salutary rule. This is what he says (p. 615):
'......... It is a very salutary rule that aparty aggrieved must either show that he has taken his objection at the hearing below or stale on his affidavit that he had no knowledge of the facts which would enable him to do so'.
We see no reason why in this particular case we should not give effect to this salutary rule.'
This Bench relied on the judgment of the Bombay High Court, in Attar Singh v. State of Haryana, 1973 Pun LJ 90, which related to a meeting called for the co-option of members under Section 5 (2) (c) of the Punjab Panchayat Samitis (Co-option of Members) Rules, 1961. After setting out some of the observations from the Bombay judgment it was observed by us as under:--
'On the parity of reasoning it can be said in this case that the petitioners took a chance in the meeting of getting their nominees elected for co-option without any objection and having partly succeeded, after having taken full part in the proceedings of the meeting, they cannot now be heard to say that the proceedings of the meeting should be declared as illegal and invalid on the ground that the meeting had nut been regularly summoned in accordance with the statutory rules.'
4. In the return filed by the appellant to the writ petition it was stated that on July 9, 1972. the writ petitioner had suggested two names to the Deputy Commissioner for being nominated as women members of the Municipal Committee, Haryana, under Section 12-E of the Act. His recommendations were, however, not accepted and the Government made its own nominations. After nominations were gazetted and the co-opted women members took oath. he never objected to their presence in the meeting or their right to take part in the voting for the election of President and Vice-President. With the full knowledge of their co-option and presence in the meeting, he contested election to the office of the President and took his chance for being elected or being defeated. Having been defeated, he cannot challenge that that meeting was illegally eonvened or that the two women members, who attended the meeting, had no right to attend the same because their co-option was illegal or invalid. On the reasoning of the judgment in Gandhinagar Motor Transport Society's case (supra), we hold that the writ petitioner had no right to file the writ petition in this Court and his peti-tion should have been dismissed on that ground.
5. The learned counsel for the appellant has taken another objection to the writ petition being allowed and that is, that the ordinary remedy by way of election petition provided in the Punjab Municipal Election Rules, 1952, had not been followed by the writ petitioner and by the time he filed the writ petition in this Court, his remedy by way of election petition had become barred by time. Reliance in support of this submission has been placed on our judgment in L. P. A. No. 135 of 1973 (Tarsem Lal v. Buta Ram), decided on 2-5-1973. It has been admitted by the learned counsel for the writ petitioner that according to the amendment in Rule 2 (i) of the said Rules, election includes co-option of a member. The co-option of respondents 4 and 5 could, therefore, be contested by way of election petition a.s provided in Rule 52. The grounds on which an election can be challenged are stated in Rule 63, one of them being any material irregularity in the holding of the election. Clearly, there was a material irregularity in holding the co-option of two women members in the meeting held on July 8, 1972. According to Rule 40 (c) of the Rules, when three candidates had obtained equal number of votes the election had to be decided by drawing lots and not by referring the case to Government for nomination under Section 12-F. of the Act. The Convener of the meeting had failed to draw lots and decide the result of the election on that basis. Evidently, the election petition was competent and for the filing of such a petition the time provided in Rule 53 is fourteen days from the date on which the result of the election is declared. In the present case, the co-option of women members by nomination under Section 12-E of the Act was announced on July 28. 1972, and, therefore, the remedy by way of election petition was barred on the date the writ petition was filed in this Court on August 17, 1972. The writ petition, therefore, deserves to be dismissed on this ground also.
6. For the reasons given above, we accept this appeal, set aside the judgment of the learned Single Judge and dismiss the writ petition. The parties will, however, bear their own costs throughout.