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Somabhai Kacharadas Patel Vs. Patel Becharbhai Shambhubhai and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtGujarat High Court
Decided On
Judge
Reported in(1980)2GLR1
AppellantSomabhai Kacharadas Patel
RespondentPatel Becharbhai Shambhubhai and ors.
Cases ReferredCannanore v. M.K. Mohammed Kunhi
Excerpt:
.....behalf of the state of gujarat as well as by mr. notwithstanding anything contained in the code of civil procedure, 1908, the judge shall not permit (a) any application to be compromised or withdrawn or (b) any person to alter or amend any pleading, unless he is satisfied that such application for compromise or withdrawal or the application for such alteration or amendment is bona fide and not collusive. sub-section (5) provides for the satisfaction of the judge trying an election petition on certain points and if he is so satisfied on any of the points the judge shall set aside the election of the elected candidate and where the election is set aside, on a ground mentioned in item (i) or (ii) of sub-section (5), shall declare the candidate disqualified for the purpose of such fresh..........somabhai kacharadas patel, the appellant before us, filed an election petition being miscellaneous civil application no. 37 of 1980, no november 6, 1980 before the learned district judge, mehsana. the district judge is constituted the tribunal to hear election petitions under the provisions of the gujarat municipalities act, 1963. during the pendency of the election petition before the learned district judge, somabhai kacharadas patel, the appellant, filed the application, exhibit 5, and prayed for the following interim reliefs ;(1) that the government should not publish the names of elected councillors pursuant to the election held on october 26, 1980:(2) that no first general meeting should be called under section 32 of the gujarat municipalities act, 1963 for the purpose of either.....
Judgment:

B.J. Divan, C.J.

1. These three matters have been placed before us because of an order passed by our learned Brother A.N. Surti J. referring these matters to a larger Bench because of the importance of the questions involved in this Appeal from Order. Our learned Brother felt that since the matter is of public importance as it relates to an election dispute and as the question involved is one of reading and interpreting Section 14 of the Gujarat Municipalities Act, 1963, the matter should be heard and disposed of by a larger Bench.

2. Elections were held for the formation of municipality of Kalol, District Mahesana. The elections were held on October 26, 1980. Counting of votes was carried out on October 22, 1980 and the result of the count was declared on October 30, 1980. The Returning Officer found that the appellant in the present Appeal from Order Somabhai Kacharadas Patel, had secured 642 votes whereas respondent No. 1, Patel Becharbhai Shambhubhai, had secured 640 votes. At that stage a re-count was requested and the Returning Officer granted the request for re-count. After the recount it was found that respondent No. 1 had secured 642 votes whereas the appellant had secured 640 votes and because of the result of the votes as found at the time of the re-count, respondent No. 1 was declared as the successfully elected candidate and the appellant was declared to have lost the election. After the declaration of respondent No. 1 as elected councillor of Kalol Municipality, Somabhai Kacharadas Patel, the appellant before us, filed an election petition being Miscellaneous Civil Application No. 37 of 1980, no November 6, 1980 before the learned District Judge, Mehsana. The District Judge is constituted the Tribunal to hear election petitions under the provisions of the Gujarat Municipalities Act, 1963. During the pendency of the election petition before the learned District Judge, Somabhai Kacharadas Patel, the appellant, filed the application, Exhibit 5, and prayed for the following interim reliefs ;

(1) that the Government should not publish the names of elected councillors pursuant to the election held on October 26, 1980:

(2) that no first general meeting should be called under Section 32 of the Gujarat Municipalities Act, 1963 for the purpose of either electing the President or the Vice President of the Municipality,

In this election petition the petitioner had joined the State of Gujarat and Kalol Nagar Palika, that is, Kalol Municipality, as respondents to the election petition. It may be stated that the interim relief which was sought for was against the State of Gujarat against calling the first general meeting and relief restraining the Government from publishing the names of elected councillors was also sought for. At the initial stage the Tribunal issued notices to the respondents as he was of the view that it had no jurisdiction to grant the interim reliefs as prayed for by Exhibit 5.

3. At that stage, Somabhai Kacharadas Patel filed Special Civil Application No. 3292 of 1980 in this High Court. The Special Civil Application cams up for admission on November 18, 1980 before our learned Brother P.D. Desai J. The learned Single Judge was of the view that it would not be just and proper for this Court to intervene and to grant any relief on the special civil application. He observed that if the petitioner, that is, Somabhai Kacharadas Patel the appellant before us, was unable to obtain any interim relief in the said proceedings, it would be open to him to challenge the order of the Tribunal in that behalf.

4. P.D. Desai, J. therefore allowed the petition in Special Civil Application No. 3292 of 1980 to be withdrawn. After the dismissal of that Special Civil Application as withdrawn Somabhai Kacharadas Patel approached the Tribunal once again and pressed his application for interim reliefs but that application was rejected by the Tribunal. The present Appeal from Order has been filed by Somabhai Kacharadas Patel against his rival candidate who was the declared elected councillor, the Returning Officer and the State of Gujarat and the Kalol Nagar Palika and a civil application was filed for necessary interim reliefs during the pendency of the Appeal from Order. Thereafter Civil Application No. 3454 of 1980 was filed by about twenty-one persons who were the elected councillors of Kalol Municipality for getting the interim relief vacated and for early hearing of the Appeal from Order. At the hearing of the Appeal from Order before our learned Brother Surti J., a preliminary objection was raised on behalf of the State of Gujarat as well as by Mr. Barot, learned advocate for respondent No. 1, that having regard to the facts and circumstances of the case, an appeal from order was not maintainable in view of the provisions of Section 14 of the Gujarat Municipalities Act. Several authorities were cited before our learned Brother and as he was of the opinion that the matter is of public importance as it relates to an election dispute and the question was one of reading and interpreting Section 14 of the Gujarat Municipalities Act, 1963, the matter should be referred to a larger Bench. 5. At this stage it is necessary to refer to the provisions of Section 14 of the Gujarat Municipalities Act. It provides for determining validity of elections. Sub-section (1) provides:

If the validity of any election of a councillor is brought in question by any person qualified to vote at the election to which such question refers or by any candidate for such election such person may, at any time within fifteen days after the date of the declaration of the result of the election, apply to the District Court of the district within which the election has been or should have been held, for the determination of such question.

Under Sub-section (2):

An inquiry shall thereupon be held by a Judge, not below the grade of an Assistant Judge appointed by the State Government either specially for the case or for such cases generally; and such Judge may, after such inquiry as he deems necessary and subject to the provisions of Sub-section (5), pass an order confirming or amending the declared result of the election, or setting the election aside. For the purposes of the said inquiry the said Judge may summon and enforce the attendance of witnesses and compel them to give evidence as if he were a Civil Court, and he may also direct by whom the whole or any part of the costs of any such inquiry shall be paid; such costs shall be recoverable as if they had been awarded in a suit under the Code of Civil Procedure, 1908. The decision or order shall be conclusive.

Sub-section (3) provides that all applications received under Sub-section (1) in which the validity of the election of councillors elected to represent the same ward is in question shall be heard by the same Judge; and all applications in which the validity of the election of the same councillor elected to represent the same ward is in question shall be heard together. Sub-section (4) is material for the purposes of this Judgment and it provides:

Notwithstanding anything contained in the Code of Civil Procedure, 1908, the Judge shall not permit (a) any application to be compromised or withdrawn or (b) any person to alter or amend any pleading, unless he is satisfied that such application for compromise or withdrawal or the application for such alteration or amendment is bona fide and not collusive.

Sub-section (5) provides for the satisfaction of the Judge trying an election petition on certain points and if he is so satisfied on any of the points the Judge shall set aside the election of the elected candidate and where the election is set aside, on a ground mentioned in item (i) or (ii) of Sub-section (5), shall declare the candidate disqualified for the purpose of such fresh election as may be held under Sub-section (2) of Section 42. If in any case to which Clause (a) of Sub-section (5) does not apply, the validity of an election is in dispute between two or more candidates the Judge shall, after a scrutiny and computation of the votes recorded in favour of each candidate, declare the candidate who is found to have the greatest number of valid votes in his favour, to have been duly elected: Provided that for the purpose of such computation no vote shall be reckoned as valid if the Judge finds that any corrupt practice was committed by any person, known or unknown, in giving or obtaining it. The rest of the provisions of Section 14 are not material for the purposes of this judgment.

6. In Hambirrao Bhaurao Patil v. Balisha Ganpat Kamble 62 Bom. L.R. 749, it has been held by a Division Bench of the High Court of Bombay prior to the bifurcation of the Bilingual State of Bombay that the Election Tribunal constituted under the District Municipal Act, 1901, possessed as inherent in its constitution as a Judicial Tribunal all such powers as were referred to in Section 151 and 152 of the Civil Procedure Code, 1908, as for example, the power to correct arithmetical or clerical mistakes or accidental slips or omissions in its Judgment or order or to correct its orders so as to bring them in conformity with their decision or to correct such glaring or manifest errors as might have crept in its order through oversight or inadvertence. It was further held that the inquiry contemplated under Section 22 of the District Municipal Act was a judicial inquiry, the authority holding that inquiry was a Judicial Authority and the procedure prescribed by the Civil Procedure Code in so far as it might apply was applicable to that inquiry. At page 752 of the report, V.S. Desai J. speaking for the Division Bench observed:

Although we have taken the view that the procedure prescribed by the Civil Procedure Code is applicable to the inquiry before the District Judge or the Assistant Judge, who is holding an inquiry on an election petition under Section 22 of the District Municipal Act it does not follow, therefrom, that a party to the inquiry has a right to apply to the Judge for a review of the decision given by him in an election, petition. For the right of review like the right of appeal is a substantive right and not a matter of procedure. The District Municipal Act has not provided for an appeal from the decision or order of the Judge nor has it provided for a review of the decision. On the other hand, the decision or order passed is made conclusive. Therefore, a party to the election petition cannot claim a right of review of the decision or order made by the Judge on the petition under Section 114 and Order XLVII, Rule (1) of the Civil Procedure Code.

In that case the provisions of Section 22(2B) of the Bombay District Municipal Act were similar to the provisions of Section 14(4) of the Gujarat Municipalities Act. As in the District Municipal Act so in the Gujarat Municipalities Act also, there is no provision for an appeal against the decision of an Election Tribunal constituted under Section 14 of the Act and far from there being a right of appeal, there is a clear provision that the order passed in the election petition is conclusive. Therefore it is obvious that so far as election law as set out in Section 14 of the Gujarat Municipalities Act is concerned it provides that there is no substantive right of appeal conferred upon any of the litigants who are affected by the order passed by a Tribunal functioning under Section 14 of the Act.

7. It is true that this decision in 62 Bom. L.R. 749 (supra) was followed by Bhagwati J., as he then was, sitting single in Barot Jaganath Maganlal v. Parshottamdas Nathubhai Brahmbhatt 8 G.L.R., 9. In that case he pointed out, following the decision in 62 Bom. L.R. 749 (supra), that the Tribunal functioning under Section 14 of the Gujarat Municipalities Act would be governed by the procedure set out in the Code of Civil Procedure.

8. The question before us is not regarding procedure to be followed but whether an appeal can lie against an order passed by an Election Tribunal at an interlocutory stage. As pointed out above, there is no substantive right of appeal conferred by the Act itself. However, Mr. Shah for the appellant urges before us that Order 39 Rules 1 and 2 which form part of the Code of Civil Procedure would be applicable and if an application for interlocutory relief is rejected under the provisions of Order 39 Rule 2, then, an appeal from order would lie under Order 43 Rule 1(r) of the Code of Civil Procedure. This argument requires examination. In the first place, the petitioners, challenging the election under the Municipal Act, have not been invested with any right under the relevant municipal statute to pray for temporary or permanent injunction. Therefore, it cannot be urged on the basis of the decision of the Supreme Court in Firm Ishardass Devi Chand and Anr. v. R.B. Prakash Chand and Anr. : [1969]3SCR677 that since the trial Court has considered the application for injunction under Order 39 Rules 1 and 2 of the Civil Procedure Code, an appeal is competent as a matter of course under Order 43 Rule 1 of the Civil Procedure Code. Assuming for the purpose of argument that Order 39 of the Code of Civil Procedure would apply so as to enable a party to an election dispute to pray for an injunction pending hearing and final disposal, the application must fall within the provisions of Order 39 rule i or Order 39 Rule 2. Order 39 Rule 1 provides:

Where in any suit it is proved by affidavit or otherwise:

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant threatens, orintends, to remove or dispose of his property with a view to defrauding his creditors, or

(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may by order grant a temporary injunction....

Thus it is clear that Order 39 Rule 1 of the Code of Civil Procedure can be invoked only if there are disputes as to property and in no other circumstances. Order 39 Rule 2 provides:

In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of....

In an election petition there is no question of breach of contract or proceedings for breach of contract and so far as injury is concerned, it must be legal injury from the action contemplated by the other party to the proceedings. Under Section 14 the only inquiry that is permissible to the Election Tribunal is an inquiry regarding validity of election of a councillor and there is no question of any legal injury which the applicant before the Election Tribunal can suffer from and therefore even that part of Rule 2 of Order 39 which speaks of 'other injury of any kind' will not be applicable to proceedings challenging the validity of an election. Under these circumstances, Order 39 Rule 2 also cannot be invoked by any party to an election petition which is instituted under Section 14 of the Gujarat Municipalities Act. If that is so, there is no question of invoking the provisions of Order 43 Rule 1 for establishing maintainability of an appeal against the order refusing to grant an injunction during the pendency of an election petition.

9. It must be pointed out that in the instant case, the appellant before us was seeking for an injunction not against any elected candidate but against the Collector and the State of Gujarat, seeking to restrain the State of Gujarat from convening the first meeting of the newly elected municipality as provided under Section 32 and was also seeking to restrain them from publishing the names of elected councillors pursuant to the election held on October 26, 1980. Thus the two reliefs which the appellant before us was claiming in his application, Exhibit 5, before the Election Tribunal did not refer to the question of any injury likely to be caused to him if the relief sought for was not granted to him. The substantive right of claiming injunction is not only not invested in the petitioners challenging the validity of the election but on the contrary the Gujarat Municipality Act has made all the orders of Tribunal final and, therefore, also there would be no right of appeal against such orders if any. We are, however, of the view that the Gujarat Municipality Act has neither invested the petitioners challenging the validity of the election with the substantive right to claim injunction or correspondingly conferred the power to grant injunction in Tribunal. The right to claim injunction under Order 39 Rules 1 and 2, Civil Procedure Code, is a substantive provision and, therefore, would not, on the authority of the Division Bench of Bombay High Court in Hambirrao Bhaurao's case (supra) or of Bhagwati J. in Barot Jaganath Maganlal's case (supra) accrue to a petitioner challenging the validity of the election under the Municipality Act since it is not merely a matter of procedure.

10. It was sought to be urged before us that by reason of the doctrine of implied power of a Tribunal to grant the relief which are necessary for the purpose of granting the main relief in the petition or in the proceedings before him, power to grant injunction pending hearing and final disposal of an election petition can be implied and thus the doctrine of implied power was sought to be brought in aid. But it is well-settled law that the doctrine of implied power can be brought into play only if it is found that a duty had been imposed or power conferred on the authority by statute and it is further found that the duty cannot be discharged or the power cannot be exercised at all unless some auxiliary or incidental power is assumed to exist. (Vide B.B.L & T Association v. State of Bombay : (1961)IILLJ663SC . It is true that in Income-Tax Officer, Cannanore v. M.K. Mohammed Kunhi 71 I.T.R. 815, the Supreme Court held that so far as Income-tax Tribunal functioning under Section 254 of the Income-tax Act, 1961 was concerned, the statutory power under Section 254 carried with it the duty in proper cases to make such orders for staying recovery proceedings pending an appeal before the Tribunal, as would prevent the appeal, if successful, from being rendered nugatory. It was pointed out at page 822 of the report that under the Income-tax Act an assessee, when an appeal was pending before the Appellate Assistant Commissioner, could not be said to be in default but no similar provision was made during the pendency of an appeal before the Income-tax Tribunal and therefore, in order to see that the result of the appeal, if successful' was not rendered nugatory, this incidental power was read into the provisions of Section 254 by the Supreme Court.

11. This principle of implied power cannot be read into the provisions of Section 14 of the Gujarat Municipalities Act because all that the Tribunal has to decide is the question of the validity of that election and an injunction of the type sought for in the present case cannot be said to be necessary for the proper determination of the question before it nor can it be said that if such a relief is not granted the result of the election petition, if successful, would be rendered nugatory, nor can it be said that the jurisdiction of Election Tribunal would not be effectively exercised in the absence of any such implied power.

12. It must be emphasized that there is a distinction between procedure laid down by the Civil Procedure Code and the substantive right like the right of review or the right of appeal, which also must be conferred by statute, or the power to grant or the right to claim injunction which must be conferred by specific provision of the statute. In the absence of any such substantive right, the substantive part of the Code of Civil Procedure regarding appeal, for example, under Section 96 or Section 100 or an appeal under Order 43 or under Section 104 of the Civil Procedure Code, cannot be said to come into the picture at all. All that can be said is that if an appeal had been provided by statute, this procedural provision relating to appeal under the Code of Civil Procedure would become applicable but neither by implied power nor by the very nature of the proceedings can it be said that the power to grant interlocutory injunction under Order 39 Rule 1 or 2 has been conferred upon the Tribunal set up under the provisions of Section 14 of the Gujarat Municipalities Act.

13. Under these circumstances, in the first place, the application, Exhibit 5, for interlocutory injunction was itself not maintainable and the applications was misconceived. Secondly, the provisions for appeal under Order 43 cannot apply because no substantive right of appeal against the final order or against interlocutory order has been conferred and the provisions of Order 43 cannot be invoked in the instant case because from the very nature of things no substantive right of appeal, either against the final order or against interlocutory order, if any, is conferred upon any of the parties to an election petition.

14. For all these reasons, this Appeal from Order must fail. It is therefore dismissed with no order as to costs.

In view of the fact that the right to work as councillor is under challenge in this case, it is desirable that this election petition should be disposed of by the Court at Mahesana as expeditiously as possible.

15. Mr. Shah for the appellant applies for certificate for leave to appeal to the Supreme Court under Article 133(1) of the Constitution. In our opinion, the case before us does not involve any substantial question of law of general importance, much less such a question which is needed to be decided by the Supreme Court. The principles which we have followed are well-settled legal principles and therefore it cannot be said that the case before us at the present stage involves any substantial question of law of general importance. The oral application is therefore rejected.

16. No order on Civil Applications Nos. 3453 and 3454 of 1980. Both the civil applications to be treated as disposed of. No order as to costs. Interim relief vacated.


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