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Kanshi Ram Vs. Siri Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Petn. No. 4152 of 1979
Judge
Reported inAIR1980P& H145
ActsPunjab Gram Panchayat Act - Sections 13-OO and 13-V
AppellantKanshi Ram
RespondentSiri Ram and anr.
Excerpt:
.....appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1..........the appeal of kanshi ram, instituted under section 13v of the act, has been dismissed by the district judge. bhiwani, on the ground that the impugned order was not appealable. feeling aggrieved, kanshi ram has preferred this writ petition.2. now the relevant part of s. 13-n(1) of the act lays down:--'where an election petition has not been dismissed under section 13-e, the prescribed authority shall enquire into the election petition and at the conclusion of the inquiry shall make an order:-- (a) dismissing the election petition; or (b) setting aside the election................................................. ......................................................................................................................................'3.then section.13-ooof.the act.....
Judgment:
ORDER

1. The salient facts of this writ petition are that the election petition filed by Siri Ram challenging the election of Kanshi Ram to the office of Sarpanch of the Gram Panchayat of village Badhawana, was allowed by the prescribed authority and under S. 13-OO of the Punjab Gram Panchayat Act, Siri Ram was declared as duly elected Sarpanch. The appeal of Kanshi Ram, instituted under Section 13V of the Act, has been dismissed by the District Judge. Bhiwani, on the ground that the impugned order was not appealable. Feeling aggrieved, Kanshi Ram has preferred this writ petition.

2. Now the relevant part of S. 13-N(1) of the Act lays down:--

'Where an election petition has not been dismissed under Section 13-E, the prescribed authority shall enquire into the election petition and at the conclusion of the inquiry shall make an order:--

(a) dismissing the election petition; or

(b) setting aside the election.................................................

......................................................................................................................................'

3.Then Section.13-OOof.the Act provides that a petitioner may addition to claiming a declaration that the election of any of the returned candidates is void, claim a declaration that he himself has been duly elected. Subsection (2) of Section 13-OO of the Act further provides that the prescribed authority shall after declaring election of the returned candidate to be void, declare the petitioner to have been duly elected. The next prevision of the Act deserving consideration is of Section 13-V which reads:--

'(1) any party aggrieved by an order made by the prescribed authority under Section 13-N may appeal to the Court of the District Judge within thirty days of the date of such order.

......................................................................................................................................'

4. The District Judge, Bhiwani, has passed the impugned order on the ground that Section 13-V provides appeal from only order under Sec 13-N of the Act. According to the District Judge the impugned order being a composite one, that is passed under Sections 13-N and 13-OO, the same is not appealable. The approach of the District Judge appears to be untenable. It is to be borne in mind that unless and until an election is set aside and Section 13-N the consequential declaratory order, envisaged by Section 13-OO of the Act cannot be passed. Thus, it is clear that the very foundation of an order passed under Section 13-OO of the Act is the order under Section 13-N of the Act. When the statute (Section 13-V of the Act) has clearly made an order passed under Section 13-N of the Act appealable, one fails to see how the statutory right can be taken away merely because Section 13-V does not in its terms make mention of order passed under S. 13-OO of the Act. An order passed in this section has no independent existence, inasmuch as passing of an order under Section 13-N setting aside an election must precede it. Another way of looking at the matter is that it the appeal filed by Kanshi Ram under Section 13-V of the Act against the order under Section 13-N, is allowed the consequential order passed under Section 13-OO declaring Siri Ram duly elected as Sarpanch, falls to the ground automatically. It is well settled that a right of appeal is a substantive right and not a procedural matter. Courts should construe such provisions Liberally and not narrowly. Unless there be an express provision to the contrary, a right of appeal is not to be easily restricted.

5. For the foregoing reasons there appears no force in the view that since the impugned order is a composite order passed under Sections 13-N and 13-OO of the Act, therefore, the right of appeal given by Section 13-V against an order passed under Section 13-N is taken away. The impugned order of the District Judge thus cannot be sustained, and, it is set aside. The District Judge to entertain the appeal and decide it according to law. The writ petition stands disposed of accordingly. Parties to appear before him on 2-1-1980.

6. Order accordingly.


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