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Madan Gopal Gupta Vs. Dr. Leelaram and ors. - Court Judgment

LegalCrystal Citation
SubjectElection;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Appeal No. 66 of 1971
Judge
Reported inAIR1972Raj177; 1972()WLN3
ActsRajasthan Municipalities Act, 1959 - Sections 40; Code of Civil Procedure (CPC) - Order 4, Rule 1
AppellantMadan Gopal Gupta
RespondentDr. Leelaram and ors.
Appellant Advocate M.B.L. Bhargava and; S.N. Bhargava, Advs.
Respondent Advocate Arjundas and; B.J. Mohnani, Advs. for Respondent No. 1
Cases ReferredHarish Chandra Bajpai v. Triloki Singh
Excerpt:
.....4 rule 1--election petition presented to munsarim of district court whether it is presented to district judge.;the act makes no provision for the framing of the issues, for discovery and inspection, etc. there, the word 'trial' has to be taken in its extended meaning, namely the entire proceedings from the moment of the presentation of the petition till judgment in this view of the matter i see no reason to exclude the applicability of order iv rule 1 c.p.c. when it provides that the plaint could be presented to the court or such officer as it appoints in this behalf.;(b) words & phrases - 'present' & 'trial'--meaning of. - - 2, 3, 4 and 5 were defeated. manoharlal, 1959 raj lw 515. he further submitted that the district judge under section 40 was not a persona designata.....b.p. beri, j. 1. by his order dated the 9th of march, 1971, the learned civil judge, ajmer, has rejected the municipal election petition of madan gopal gupta because it was not presented to the district judge himself but to the munsarim of that court. madan gopal gupta, the petitioner, appeals. 2. the facts, which it is necessary to notice for the disposal of this appeal, briefly stated are these: dr. leela ram, respondent no. 1, was elected as a member from ward no. 17 to the ajmer municipal council and the petitioner and the respondents nos. 2, 3, 4 and 5 were defeated. the election took place on 25-10-70 and the counting was made on 26-10-70 and on the same day the result was declared. a petition challenging the election was submitted on 25-11-70 before the munsarim of the district.....
Judgment:

B.P. Beri, J.

1. By his order dated the 9th of March, 1971, the learned Civil Judge, Ajmer, has rejected the Municipal Election Petition of Madan Gopal Gupta because it was not presented to the District Judge himself but to the Munsarim of that Court. Madan Gopal Gupta, the petitioner, appeals.

2. The facts, which it is necessary to notice for the disposal of this appeal, briefly stated are these: Dr. Leela Ram, respondent No. 1, was elected as a member from Ward No. 17 to the Ajmer Municipal Council and the petitioner and the respondents Nos. 2, 3, 4 and 5 were defeated. The election took place on 25-10-70 and the counting was made on 26-10-70 and on the same day the result was declared. A petition challenging the election was submitted on 25-11-70 before the Munsarim of the District Judge, Aimer. By his order dated 19-1-1971 the petition was transferred to the Civil Judge, Aimer, An application was made by the respondent No. 1 on January 2, 1971, in which the respondent No. 1 raised the grounds that the election petition was neither presented by the proper person nor before the appropriate authority as required by Section 36 of the Rajasthan Municipalities Act, 1959 (hereinafter called 'the Act'). The learned Civil Judge thought it fit to decide the preliminary points and held that while the presentation of the petition by Shri B. L. Samdaria, Advocate, who was along with the petitioner was proper but held that the presentation having been made to the Munsarim of the learned District Judge and not to the District Judge personally, it was not presented before the competent authority as required by law and rejected the petition.

3. Mr, N. B. L. Bhargava, learned counsel for the appellant, submitted that presentation to the District Judge's Munsarim was sufficient compliance or the provisions of Section 40 of the Act; that the Code of Civil Procedure was applicable to Municipal Election petitions under Section 41 (3) of the Act; that any delay on the part of the Munsarim to place the petition before the learned District Judge was a lapse on the part of the Munsarim and should not prejudice the petitioner's rights to seek justice; that the ruling of Bajrang Lal v. Suraj, 1966 Raj LW 614 relied upon by learned Civil Judge was distinguishable and the case was compared by a Division Bench decision of this Court in Bansilal v. Manoharlal, 1959 Raj LW 515. He further submitted that the District Judge under Section 40 was not a persona designata and the presentation to the Munsarim was perfectly valid.

4. Mr. Arjun Das, appearing for respondent No. 1, argued that the CivilProcedure Code was made applicable by Section 41 (3) for the trial of election petitions but it was subject to the provisions of the Act and the Act clearly provided in Section 40 that an election petition was to be presented to the District Judge personally and as he was a persona designata the presentation before the Munsarim was not proper and he placed strong relianca on Bajranglal's case, 1966 Raj LW 614.

5. It will be necessary for the decision of this appeal to closely examine certain provisions of the Act, Section 40 reads as follows:--

'Section 40. Who shall hear petition-

(1) An election petition may be presented to and shall be heard by-

(a) the District Judge sitting at the place where the Municipal Office is situated,

(b) where there is no such District Judge, the Civil Judge so sitting, or

(c) any other Judge specially appointed by the State Government for the purpose.

Provided that, where an election petition is presented as aforesaid to a District Judge, he may for reasons to be recorded in writing transfer the same for hearing and disposal to a Civil Judge subordinate to him and sitting at the place where the Municipal Office is situated.

(2) The District Judge or Civil Judge or any other Judges to whom an election petition is presented or transferred and by whom it is heard in accordance with the provisions of Sub-section (1) is hereinafter referred to as the Judge.'

Note.-- The underlining is mine. The relevant part of Section 41 reads,--

'Section 41. Procedure-- (1) The Judge shall, as soon as may be, cause a copy of the petition together with a copy of the schedule or annexure referred to in subsection (2) of Section 38 to be served on each respondent.

(2) AH election petitions in respect of the same election may, in the discretion of the Judge, be tried separately or in one or more groups.

(3) Except so far as may be otherwise provided by this Act or by any rule made thereunder the procedure provided in the Code of Civil Procedure, 1908 (Central Act V of 1908) in regard to the trial of suits shall so far as it is not inconsistent with this Act or any rule and so far as it can be made applicable be followed in the hearing of election petitions.

Provided that the Judge shall have the discretion to refuse for reasons to be recorded in writing, to examine any witness or witnesses if he is of the opinion that his or their evidence is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings. .. .. .. ..'

6. The question which arises for consideration is: Whether the election petition presented before the Munsarim of the District Judge, Ajmer, was not presented to the District Judge, Ajmer?

7. Let us examine the Rajasthan High Court cases on the point in dispute before me. In an appeal against the judgment of a learned single Judge of this Court Wanchoo, C. J. delivering the^ judgment in a special appeal in Bansilal's case 1959 Raj LW 515 made the following observations:--

'Learned counsel for Manoharlal has again raised the same point before us. His contention is that the election petition was not properly presented inasmuch as it was presented to the Munsarim of the District Judge and not personally to the District Judge himself. Reliance in this connection was placed on Brijmohan Dixit v. Gobardhan (AIR 1955 All 126). It is enough to say that we agree with the learned Single Judge that Brijmohan's case was decided on its peculiar facts because of the language of Order 47, Rules 1 and 2, C.P.C. Let us look at what Section 19 (1) provides in this matter. That lays down that any ten voters or any candidate who stood for election may apply to the Judges having jurisdiction over the district within which the election has been held for the determination of the validity of the election. The election petition has to be made therefore to the Judge having jurisdiction in the area in which the election is held. We are not prepared to hold that these words in Section 19 (1) of the Municipalities Act mean that the election petition must be presented to the Judge himself. It is enough in our opinion if it is presented to the officer who normally accepts petitions relating to his court. We are, therefore, of opinion that there was no irregularity whatsoever in the presentation of the petition in this case to the Munsarim of the Judge having jurisdiction over the district within which the election was held.'

8. Section 19 (1) of the Rajasthan Town Municipalities Act, 1951 (Act No. XXIII of 1951) read as follows:--

'Section 19. Determination of validity of elections; enquiry by Judge; procedure.- (1) At any time within ten days after the date of the declaration of the result of an election, any candidate who stood for election, or any ten persons qualified to vote at that election, may apply together with a deposit of fifty rupees as security for costs to the Judge having jurisdiction over the district within which the election has been or should have been held for the determination of the validity of the election.'

9. While Section 40 of the Actprovides for the presentation of the petition to the District Judge sitting at theplace where the Municipal Office is situated, Section 19 (1) of the Rajasthan Town Municipalities Act, 1951, provides for applying to the Judge having jurisdiction over the District within which the election has been held. Is there any substantial difference between presenting an election petition and applying for determination of the validity of election? The word 'apply' is a word of very wide import. The meaning which is nearest in the context is 'to address or direct (words) to' (See The Oxford English Dictionary, Volume I, page 407, Item 26). In Black's Law Dictionary, Fourth Edition 'apply' means 'To make a formal request or petition, usually in writing, to a court, officer, board, or company, for the granting of some fa-vour, or of some rule or order which is within his or their power or discretion.' The word 'present' in Section 40 would mean, 'to bring or lay before a court, magistrate, or person in authority, for consideration or trial; to make presentment of. To make a formal statement of; to submit (a fact, or a request, complaint, etc.)' (See The Oxford English Dictionary, Volume VIII, page 1303, Item 8). I am unable to see any substantial distinction between applying to the District Judge for setting aside an election or presenting a petition to the District Judge for the same purpose. In this view of the matter the case of Bansilal, 1959 Raj LW 515 fully covers the point at issue. In fact in Bansilal's case the petition was also presented to the Munsarim of the District Judge and that presentation was held to be valid on the ground that normally presentations to the District Judge were made to the Munsarim. Bajranglal's case, 1966 Raj LW 614 decided by learned single Judge turned on Rule 78 of the Rajasthan Panchayat and Nyay Panchayat Election Rules, 1960. The learned Judge's attention probably was not invited to the Division Bench ruling in Bansilal's case, 1959 Raj LW 515. In any event Bajranglal's case is distinguishable because on the day when the election petition was presented the Munsif was on leave.

10. Excepting to the extent that the Act makes any specific provision inconsistent with the Code of Civil Procedure the procedure to be adopted for the trial of election petition shall be the same as is in regard to the trial of suits. Section 41 (3) provides that the procedure provided in the Code of Civil Procedure, 1908, in regard to the trial of suits shall so far as it is not inconsistent with the Act or any rule and so far as it can be made applicable be followed in the hearing of election petitions. In other words, unless expressly provided by the Act or the rules or from the nature of the dispute the procedure in regard to the trial of suits laid down in the Code of Civil Procedure shall be applicable to election petitions under the Act, The crucial word in this provision is 'trial'.It came to be interpreted by their Lordships of the Supreme Court in Harish Chandra Bajpai v. Triloki Singh, AIR 1957 SC 444. It was an election matter. In para 16 their Lordships observed,--

'While the word trial' standing by itself is susceptible of both the narrow andthe wider senses indicated above, the question is, what meaning attaches to it in Section 90 (2), and to decide that, we musthave regard to the context and the settingof the enactment. Now, the provisionsof the Act leave us in no doubt as to inwhat sense the word is used in Section 90(2). It occurs in Chapter III which isheaded 'Trial of election petitions'. Section 86 (4) provides that if during thecourse of the trial any member of a Tribunal is unable to perform his functions,the Election Commission is to appoint another member, arid thereupon the trial is tobe continued. This provision must applyto retirement or relinquishment by a member, even before the hearing commences,and the expression 'during the course ofthe trial' must therefore include the stagesprior to the hearing .. .. ..

.. .. .. .. Section 92 enacts that the Tribunal shall have powers in respect of various matters which are vested in a court under the Civil Procedure Code when trying a suit, and among the matters set out therein are discovery and inspection, enforcing attendance of witnesses and compelling the production of documents, which clearly do not form part of the hearing but precede it. In our opinion, the provisions of Chapter III read as a whole, clearly show that 'trial' is used as meaning the entire proceedings before the Tribunal from the time when the petition is transferred to it under Section 86 until the pronouncement of the award.'

11. The Act makes no provision for the framing of the issues, for discovery and inspection, etc. Therefore, the word 'trial' has to be taken in its extended meaning, namely, the entire proceedings from the moment of the presentation of the petition till judgment. In this view of the matter I see no reason to exclude the applicability of Order IV, Rule 1, C.P.C-when it provides that the plaint could be presented to the Court or such officer as it appoints in this behalf. Learned counsel for the respondent says that Section 40 excludes it by the use of the word 'present'. I am unable to agree. The marginal note to the section says who shall hear the petition and it is therefore primarily intended for determining the forum.

12. The result is that the view taken by the learned Civil Judge is erroneous, his order dated 9-3-71 is set aside and he will now proceed and try the election petition as provided by law. There will be no order as to costs in this appeal.


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