1. The petitioner Shri Pravin C. Soneji challenges the right claimed by Shri Ranjitsinh Dolatsinh Dodia - the respondent in the petition- to be elected and to act as councillor of the Rajkot Municipal Corporation.
2. The respondent is elected as a Councillor at the election in question. General elections to the Rajkot Municipal Corporation were held in January, 1981. The nomination forms for the aforesaid elections were to be delivered by December 17, 1980. The scrutiny thereof was held on December 19, 1980. The polling for the election took place on January 25, 1981. It may be stated that the petitioner lost the election by a margin of about 200 votes.
3. The grievance of the petitioner before me was, that the respondent was disqualified for being a Councillor. In this behalf, reliance was placed by the petitioner on Section 10 of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as 'the Act') which in so far as relevant is set out as under: -
' 10. Disqualification for being a councillor:
(i) Subject to the provisions of Sections 13, 17 and 404, a person shall be disqualified for being elected and for being a councillor if such person-
xxx xxx xxx(f) subject to the provisions of subsection (2), has directly or indirectly, by himself or his partner any share or interest in any contract or employment with, by or on behalf of the Corporation;
xxx xxx xxx(2) A person shall not be deemed to have incurred disqualification under clause (f) of sub-section (i) by reason only of his -
(a) receiving a municipal pension;
(b) having any share or interest in-
(i) any lease, sale exchange or purchase of land or any agreement for the same.
(ii) any agreement for the loan of money or any security for the Payment of money only;
(iii) any newspaper in which any advertisement relating to the affairs of the Corporation is inserted;
(iv) any joint stock company or any society, registered or deemed to be registered under the Bombay Co-operative Societies Act, 1925, which shall contract with or be employed by the Commissioner or the Transport Manager on behalf of the corporation:
(v) The occasional sale to the Commissioner or Transport Manager on behalf of the corporation of any article in which he regularly trades to a value, not exceeding in the aggregate in any one official year two thousand rupees:
(vi) the occasional letting out on hire to the corporation or in the hiring from the corporation of any article for an amount not exceeding in the aggregate in any one official year five hundred rupees;
(c) occupying as a tenant for the purpose of residence any premises belonging to the Corporation;
(d) receiving conveyance charges as a member of the Transport Committee:
(e) being a relative of a person in employment with or under or by or on behalf of the Corporation.'
4. It was alleged by the petitioner that an agreement was entered into between the respondent and Rajkot Municipal Corporation and the respondent had entered into a contract on that date to transport 1000 Metric Tonnes of Cement from Porbandar Port to Rajkot at the rate of Rs. 70.84 ps. per Metric Tonne. It was also alleged that the said contract was entered into in Pursuance of an order given by Municipal Commissioner on December 20, 1980, which was in turn was an order passed at the conclusion of the negotiations between the Corporation and the respondent on the basis of a tender dated October 8, 1980.
5. It was further alleged that the security deposit for the amount of Rupees 3600/- was also paid by the respondent on December 23, 1980. It was further alleged that the execution of the aforesaid contract is yet not completed with the result that the said contract is subsisting even today. It was also alleged that the respondent had entered into a contract with the Corporation in his capacity as a sole proprietor of Dolat Transport, a transport undertaking run by him. On the basis of the aforesaid allegations as set out in the petition, it was alleged that the respondent was disqualified from being elected as a Councillor of Rajkot Municipal Corporation. In substance, the petitioner's allegation against the respondent was that as the respondent was very much interested in the aforesaid contract entered into between himself and the Corporation, the respondent should be declared as a candidate disqualified to hold the office of a councillor.
6. Under the circumstances, it was prayed that this Court should issue a writ of quo-warranto and/or mandamus or any other appropriate writ, order or direction to the respondent so that he may not assume or occupy office of the councillorship of the Rajkot Municipal Corporation and to vacate the same if already assumed. Along with the petition, a copy of the said agreement is also annexed.
7. The petition was strenuously resisted by the respondent, and in substance, in the affidavit-in-reply which the respondent has filed in this Court, he denied that there is or there was any subsisting contract between him and Rajkot Municipal Corporation on the day of the nomination, scrutiny of the nomination papers or on the date of the poll or declaration of the result. I have gone through the entire affidavit-in-reply filed by the respondent, and I am convinced, that the respondent has raised a dispute in regard to the alleged disqualification by the petitioner for the purpose of being declared as an elected councillor. It may be that by leading evidence on the said disputed question of fact before a competent Election Tribunal as provided in Section 16 of the respondent may succeed. In any view of the matter, having regard to the averments get out in the petition and contents of both affidavit-in-reply and rejoinder. I am convinced that there is a bona fide dispute between the parties in regard to the alleged disqualification of the respondent for being declared elected as a councillor of Rajkot Municipal Corporation.
8. In view of the aforesaid respectively cases of the parties before me. Mr. Raval, the learned advocate for the respondent raised a preliminary point in regard to the very maintainability of the petition under the Article 226 of the Constitution. It was urged that it is well settled by now that if the petition involves disputed questions of the fact, this court should be extremely reluctant and slow to interfere with the impugned action or order; but Mr. Raval, in the present case, also drew my attention to section 16 of the aforesaid Act and pertinently emphasised the opening words of section 16 of the Act which are in the following terms: -
'16. (1) If the qualification of any person declared to be elected a councillor is disputed, or if the validity of any election is questioned, whether by reason of the improper rejection by the Commissioner of a nomination or of the improper reception or refusal of a vote, or by reason of a material irregularity in the election proceedings, corrupt practice, or any other thing materially affecting the result of the election, any person enrolled in the municipal election roll may at any time within ten days after the result of the election has been declared, submit an application to the Judge for the determination of the dispute or question.'
The rest of the section need not be set out for the disposal of the petition.
9. There is lot of substance and force in the preliminary objection raised by Mr. Raval in regard to the very maintainability of the petition. This is a case where the respondent in his affidavit-in-reply in terms has stated that there was no subsisting contract or there is no contract between him and Rajkot Municipal Corporation either on the day of nomination, on the day of the scrutiny of the nomination papers or on the date of the polling or on the date of the election or on the date on which there was declaration of the result. In view of this specific denial made by the respondent in his affidavit-in-reply, can I say with confidence that there was and is a valid subsisting contract between the respondent and the Corporation as alleged in the petition? Under the circumstances aforesaid, can I deprive the parties to prove their respective cases before the competent Election Tribunal, where the parties will have the fullest opportunity and right to prove their respective cases. Had there been an admission on the part of the respondent in regard to the very existence of the lawful and subsisting contract, at any of the aforesaid stages of election, possibly my ultimate conclusion would have been different. I need hardly emphasise that it is well settled by now that whenever there is a dispute in regard to the existing fact or a fact in issue this Court is normally reluctant and slow to interfere with the impugned order or the action; but in the instant case, even the statutory language employed under Section 16 of the Act clearly indicates that if the qualification of any person declared to be elected a councillor is disputed, on any of the grounds set out in Section 16 of the Act, it would be open to the aggrieved party to submit an application to the Election Tribunal and before the Election Tribunal it would be open to the aggrieved party to allege disqualification of the Municipal Councillor. It will be open to the aggrieved party to challenge the validity of any election on any of the various set out in Section 16(1) of the Act. Under the aforesaid circumstances, I am inclined to accept the preliminary objection raised by Mr. Raval on the maintainability of the present petition Article 226 of the Constitution.
10. But Mr. Mehta with his usual tenacity resisted the submissions of Mr. Raval by strongly urging before me that the affidavit-in-reply filed by the respondent contains a vague denial. He also urged before me that the respondent significantly did not mention all the details in regard to the contract in question, and hence, I should accept the averments of the petitioner in regard to the contract in question and should treat the petition as one maintainable under Article 226 of the constitution. In essence and substance, Mr. Mehta urged that it will not be proper for this Court must on the basis of the record before if come to a conclusion that there is an existing, valid and a binding contract between the respondent and the corporation, and on that count alone, a writ of quo warranto and/or mandamus or any other appropriate writ or direction against the respondent should be issued calling upon the respondent not to assume or occupy office of the concillorship of the Rajkot Municipal Corporation.
11. Developing the aforesaid submission further, it was urged by Mr. Mehta that if at any stage viz. if at any time prior to the declaration of the result of election if there was any valid, existing and subsisting contract between the respondent and the corporation. I am bound in law to take the view that the respondent is legally disqualified from holding the office of the councillor. To substantiate the point, Mr. Mehta invited my attention to the reported decision of the Supreme Court in Chatturbhuj Vithaldas v. Moreshwar Parashram, AIR l954 SC 236, and read out before me paragraphs 10 to 15 of the said judgment. With respect, it is not possible for me to agree or accept the said submission of Mr. Mehta. As stated above, this is a clear case where there is a dispute in regard to the very existence of the contract. The dispute is that there was no contract or there is no subsisting contract between the parties. It may be that possibly after the evidence is recorded by the Election Tribunal, the petitioner may be able to prove the assertion made by him in this Petition, but surely, that does not mean that I should exercise my powers under Article 226 of the Constitution. Particularly when a serious dispute is raised about the existence of the contract in the past or even today. In any event, the record of the petition clearly indicates to my mind that this is a fit case where I should come to the conclusion that there is a bona fide dispute in regard to the alleged contract, and that being so, I am reluctant to exercise my discretionary powers under Article 226 of the constitution.
12. But Mr. Mehta, the learned advocate apprehended one more serious trouble. His submission was that if the respondent is permitted to take part in the election of the Mayor or Deputy Mayor, and if the petitioner is directed to submit to alternative remedy provided under Section 16 of the Act, it will not be open to the petitioner any interim relief preventing the respondent or restraining the respondent from taking part in the election of Mayor or Deputy Mayor. In this behalf, Mr. Mehta invited my attention to the decision of the Division Bench of this Court in Appeal From Order No. 466 of 1980 with Civil Application Nos. 3453 and 3454 of 1980 decided by Hon'ble Mr. Justice R. K. Mehta on 4th and 5th December, 1980. Reading the said judgment of the Division Bench, surely the Division Bench has not taken the view that the Election Tribunal is prohibited from padding any interlocutory orders in the matters before it under Section 16 of the Act, if the occasion so demands. In the present case, for the reasons mentioned hereinabove, this court has taken the view that a petition under Art. 226 would not lie. In other words, this Court directs the petitioner to resort to the alternative remedy provided under Section 16(1) of the Act. In a situation like the present one, can it be said, that the Election Tribunal will have no jurisdiction of authority of the law to pass interlocutory orders if the occasion so demands? If such a view is taken, the same would obviously result into patent miscarriage of justice, and will lead to judicial suffocation of unbearable nature. Will the Election Tribunal be so helpless, that it cannot avoid any patent or glaring injustice at the interlocutory stage? I requested the learned counsel at the bar to show to me any passage from the judgment of the Division Bench accepting as the proposition of law, that the Election Tribunal has no jurisdiction or authority of law to pass interlocutory orders, if the occasion so demands, but the learned counsel could not point out to me any passage or observation from the judgment of the Division Bench. If such a view is taken, the very purpose and object of enacting Section 16(1) of the Act will be completely frustrated. Can it be conceived for a moment that when the petition is filed before the Election Tribunal, it can only restrict itself to the situation mentioned in Section 16(1)? It is possible, that the election petition may remain pending in the Court for a considerable time and during that period, it is obvious that the Election Tribunal can exercise its powers and can grant the necessary interim relief if the occasion so demands. I may also incidentally state that the aforesaid judgment is delivered by the Division Bench of this Court in an Appeal From Order. There was no original proceeding before the Court. Taking a note of these facts, I may usefully refer to Section 434 of the Act, which provides as follows: -
'434. (1) Save as expressly provided by this Chapter the provisions of the Code of Civil Procedure, 1908 relating to appeals from original decrees shall apply to appeals to the Judge from the orders of the Commissioner and relating to appeals from appellate decrees shall apply to appeals to the Civil Appellate Court.
(2) All other matters for which no specific provision has been made under this Act shall be governed by such rules as the State Government may from time to time make after consultation with the High Court.'
13. The statutory language employed in Section 434 of the Act does not, in any event, prohibit or restrict the Election Tribunal from passing just and proper orders, if the occasion so demands. To take a contrary view, in my opinion, would obviously result into gross and patent miscarriage of justice.
14. I may also refer to Section 403 of the Act which deals with the procedure in election inquiries. Reading the entire section it is not possible for me to take the view, that there is any statutory prohibition or implied restriction or prohibition on Election Tribunal to pass interlocutory orders, if the occasion so requires.
15. In view of my discussion on the powers or the jurisdiction of the Election Tribunal at an interlocutory stage, I am convinced that Mr. Mehta,'s apprehension is obviously unfounded and unwarranted.
16. If the petitioner had a genuine grievance in regard to the alleged disqualification incurred by the respondent in regard to the contract, in question it will be open to the petitioner to file the necessary petition before the Election Tribunal as provided in Section 16(1) of the Act.
17. No other point or submission was made by the learned Advocate in course of the hearing of the present petition.
18. As a result of the aforesaid discussion, I must necessarily dismiss the petition, but as bitterness may not prevail between the parties in regard to an election matter, I make no order as to costs. Notice is discharged.
19. Petition dismissed.