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Sugan Chand Vs. Govindram Bansal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Special Appeal No. 88 of 1972
Judge
Reported in1972WLN732
AppellantSugan Chand
RespondentGovindram Bansal
DispositionAppeal dismissed
Cases ReferredKanpur v. Dwarka Prasad
Excerpt:
.....18--no appeal lies against decision of single judge of high court.;on account of the use of the words 'final and conclusive' which emphatically point out towards decisiveness of the judgment of the high court, we are clearly of opinion that no appeal lies under section 18 of the rajasthan high court ordinance against the decision of a learned single judge of the high court pronounced by him in exercise of the powers under section 46 of the act. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was..........act, we ate inclined to think that when the legislature in its wisdom, deliberately put in the words 'final and conclusive', it meant to avoid a further appeal if it could lie under section 18 of the ordinance.reliance was placed in the judgment on mohindra supply co's case air 1962 sc 266.6. the short but interesting question is whether the decision in mohd. umar's case 1965 rlw 458 calls for a reconsideration. in our opinion for the reasons that we are setting hereinafter mohd. umar's case 1965 rlw 458 does not require any consideration.7. we might specially notice that section 33 of the act excludes the jurisdiction of ordinary civil court, section 40 provides for alternative courts where the petition could be presented and section 41 provides for an elaborate procedure and the.....
Judgment:

B.P. Beri, J.

1. This is special appeal directed against the judgment of a learned single Judge of this Court, who exercising the appellate jurisdiction under Section 46 of the Rajasthan Municipalities Act, 1959 (hereinafter called 'the Act') affirmed the decision of the Tribunal which had set aside the election of the appellant as a member of the Municipal Council, Sri Ganganagar and dismissed the appeal.

2. A preliminary objection has been raised by Shri L.R. Mehta, learned Counsel for the respondent, that this appeal is not competent under Section 18 of the Rajasthan High Court Ordinance on the authority of a Divisional Bench of this Court in Mohd. Umar v. Ahmed 1965 RLW 458. He invited our attention to Rawat Himmat Singh v. State of Rajasthan 1967 RLW 214; South Asia Industries (P) Ltd. v. S.B. Sarup Singh and Ors. AIR 1955 SC 1442, Rao Shiv Bahadur Singh and Anr. v. The State of Vindhya Pradesh AIR 1953 SC 349; The Union of India v. The Mohindra Supply Co. AIR 1962 SC 266 and to the decision of Balram v. Anguri Devi decided on 17-3-1965 by the Supreme Court.

3. Mr. C.L. Agarwal, learned Counsel for the appellant, submitted that the view in Mohd. Umar's case 1965 RLW 458 requires reconsideration because the Supreme Court itself in Gulab Bai and Anr. v. Punia : [1966]2SCR102 modified its earlier view reported in Mohindra Supply (sic) case AIR 1962 SC 266. He further invited out attention to a number of decisions, namely, Fateh Chand v. Rup Chand AIR 1916 PC 20; Haung Ba Thaw and Anr. v. Ma Fin AIR 1934 PC 81; Hem Singh and Ors. v. Basant Das and Anr. A1R 1936 PC 93; Adaikappa v. Chandrasekhara AIR 1948 PC 12 and to Roland Barrows' 'Words and Phrases Judicially Defined'. He also urged that a number of special appeals relating to Municipal elections are pending and the matter should, therefore, be referred to a larger Bench.

4. As we propose to upheld the preliminary objection raised by Mr. Mehta and add to the reasons contained in Mohd. Umar's case 1965 RLW 458, it is nor necessary to mention other facts or grounds arising in this appeal.

5. In order to appreciate the setting in which Section 48 of the Act occurs and which calls for our close attention, it is necessary to briefly survey the relevant provisions of the Act. Chapter II of the Act relates to the constitution and Government of Municipalities, It had certain sub-heads. Subhead 4 starts with electoral rolls. Section 16 provides for its preparation on the basis of adult suffrage Section 16 demands that the electoral rolls should be prepared for every ward. Section 17 prescribes the qualifications for electors. Section 18 concerns itself with disqualifications for registration in an electoral roll. Section 19 lays down that the registration shall be in one ward. Section 20 concerns the Returning Officer Section 21 ordains the annual revision of electoral rolls and Section 22 relates to the orders of the electoral rolls. Then there is another subheading Conduct of Elections'. Sections 23 to 32 relate to the various facets of election and Section 33 lays down that no civil court shall have jurisdiction to entertain or adjudicate upon any question whether any person is or is not entitled to be registered in an electoral roll, or to question the legality of any action taken by or under the authority of an electoral registration officer, etc. & to question the legality of any action taken or any decision given by the Returning Officer, and no election shall be called in question except by an election petition presented in accordance with the provisions of this Act. The 6th sub-head deals with election petitions. Section 34 provides for the grounds on which election may be called in question. Section 36 deals the corrupt practices. Section 36 relates to the' presentation of petition while Section 37 provides who shall be the parties to the petition. Section 38 says what shall be the contents of the petition and Section 39 circumscribes the reliefs which could be claimed in the petition. Section 40 reads as follows:

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 much 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 Judge 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.

Section 41 has as many as 11 sub sections and the entire procedure of the trial of election petition has been laid down. Section 44 speaks of the decision of the Tribunal and Section 45 is regarding the effects of the order. Section 46 reads:

46. Appeals from orders of Judges.-(1) An appeal shall lie to the High Court from every order made by the Judge under Sub-section (1) or Sub-section (2) Section 44.

(2) The High Court shall subject to the provisions of this Act, have the same powers, jurisdiction and authority, and follow the same procedure, with respect of an appeal under this section as if the appeal were an appeal from an original decree passed by a civil court situated within the local limits of its civil appellate jurisdiction.

(3) Every appeal under this section shall be preferred within a period of thirty days from the date of she order appealed from:

Provided that the High Court may entertain an appeal after the expiry to the said period of thirty days if it is satisfied, that the appellant had sufficient cause for not preferring the appeal within such period.

(4) Where an appeal has been preferred against an order under Clause (b) of Sub-section (1) of Section 44, the High Court may, on sufficient cause being shown, stay operation of the order appealed from and in such as a case the order shall be deemed not to have taken effect under Sub-section (1) of Section 45.

(5) Every appeal shall be decided as expeditiously as possible and endeavour shall be made to determine it finally within three months from the date on which the memorandum of appeal is presented to the High Court.

Section 47 provides for the procedure where election of all candidates is set aside. Section 48 reads:

48. Finality of orders and decisions--The decision of the High Court on an appeal under Section 46, and subject only to such decision, the order of the Judge under Section 44 shall he final and conclusive.

NOTE: The emphasis is ours.

In Mohd. Umar's case 1965 RLW 458 Section 48 came in for consideration and in para 10 Dave, C.J. speaking for the Court observed:

We have, therefore, to consider if there was anything in the mind of the legislature when it stressed in Section 48 of the Municipalities Act that the decision of the High Court on an appeal under Section 45 shall be final and conclusive. It appears to us that these words were knowingly introduced in this section in order to provide that only one appeal would be heard at the stage of the High Court and the decision in that appeal will be final and conclusive and no further appeal would lie. This Act was enacted in 1959 while the Rajasthan High Court Ordinance, 1949 came into force a decade earlier. Although Section 18 of the Ordinance is not specifically referred in Section 48 of the Rajasthan Municipalities Act, we ate inclined to think that when the legislature in its wisdom, deliberately put in the words 'final and conclusive', it meant to avoid a further appeal if it could lie under Section 18 of the Ordinance.

Reliance was placed in the judgment on Mohindra Supply Co's case AIR 1962 SC 266.

6. The short but interesting question is whether the decision in Mohd. Umar's case 1965 RLW 458 calls for a reconsideration. In our opinion for the reasons that we are setting hereinafter Mohd. Umar's case 1965 RLW 458 does not require any consideration.

7. We might specially notice that Section 33 of the Act excludes the jurisdiction of ordinary civil court, Section 40 provides for alternative courts where the petition could be presented and Section 41 provides for an elaborate procedure and the Civil Procedure Code has been applied but subject to the provisions of the Act and the rules made thereunder. Section 48 as would be evident from its language, provides for an appeal. The appeal under Section 40 may be from the order of a District Judge or of Civil Judge or even of a Munsiff if he was so authorised to try a petition under Section 40(1)(c) of the Act but the forum of appeal in every case is the High Court. The powers of the High Court as contained in Section 46 ate the same as if the appeal were an appeal from the original decree passed by a civil court but they are specially subjected to the provisions of the Act. In this view of the matter we are clearly of the opinion that the Act is a special Act.

8. In regard to the right of appeal from a special Act the principal argument of Mr. Agrawal derives strength from the dictum enunciated in Adaikappa's case AIR 1948 PC 12 Roop Chand v. Fateh Chand AIR 1916 PC 20. His contention is that when an appeal is provided to the High Court then all the appeals which are available under the ordinary appeal are available to the appellant. In this context it will be profitable to refer to National Sewing Thread Co. Ltd. v. James Chadwick and Bros. : [1953]4SCR1028 , where their Lordships have considered the leading cases on the subject. We might reproduce the material passage:

This rule was very succinctly stated by Viscount (sic) L.C. in-'National Telephone Co. Ltd. v. Postmaster-General' (1913) AC 546, in these terms:

When a question is stated to be referred to an established Court without more, it in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decision likewise attaches.The same view was expressed by Their Lordships of the Privy Council in-'Adaikappa Chettiar v. Chandrasekhara Thevar' AIR 1948 P.C. 12, wherein it was said:

Where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not, in terms confer a right of appeal.Again in-Secy. of State for India v. Chellikant Rama Rao AIR 1916 PC. 21, when dealing with the case under the Madras Forest Act their Lordships observed as follows:

It was contended on behalf of the appellant that all further proceedings in Courts in India or by way of appeal were incompetent, these being excluded by the terms of the statute just quoted. In their Lordships' opinion this objection is not well-founded. Their view is that when proceedings of this character reach the District Court, that Court is appealed to as one of the ordinary Courts of the country, with regard to whose procedure, orders and decrees the ordinary rules of the Civil Procedure Code apply.Though the facts of the cases laying down the above rule were not exactly similar to the facts of the present case, the principle enunciated, therein is one of general application and has an apposite application to the. facts and circumstances of the present case. Section 76, Trade Marks Act confers a right of appeal to the High Court and says nothing more about it. That being so, the High Court being seized as such of the appellate jurisdiction conferred by Section 76 it has to exercise its other appellate jurisdiction and when such jurisdiction is exercised by a single Judge, his judgment becomes subject to appeal under Clause 15 of the Letters Patent there being nothing to the contrary in the Trade Marks Act.

(Emphasis is ours)

The words of Viscount Haldane in the National Telephone Co. Ltd. v. Postmaster-General (1913) AC 546, 'without more' are very significant. In our opinion when jurisdiction is conferred on an established court by a Special Act, without any words of limitation, then the ordinary incidents of procedure of that court including any general right of appeal or revision against its jurisdiction is attracted. The question with which we are confronted is whether the language and particularly the words 'final and conclusive' in Section 48 of the Act have the effect of placing limitation on a further right of appeal. These words have occurred in legislation not unoften and have received judicial interpretation. In Stroud's Judicial Dictionary, Volume 2, Third Edition; the words 'final and conclusive' have been given the following meaning on the authority of cases mentioned therein:

Final and Conclusive (1) When a decision is final and conclusive', an appeal is taken away (Warehouse v. Gilbert 15 QBD 569 Bryant v. Reading 17 QBD 128 Lyon v. Horns 19 QBD 139).

In Butterworths' 'Words and Phrases' Legally Defined' Volume 2, Page 242, the words 'final and conclusive'' have been given the following meaning:

Final and conclusive:

Australia.- (Section 56(6)(b) of the Housing Act, 1958 (Vic), empowers the court to entertain and enquire into an appeal as it is empowered to do in the exercise of its ordinary jurisdiction, and the decision of the court shall be 'final and conclusive'.) 'I find myself quite unable to regard the concluding words of the section as having any meaning whatever if they do not exclude the right of appeal. If an appeal is to be allowed, the decision of the court is no longer final and conclusive. There is the authority of the Privy Council in Cushing v. Dupuy (1860) 5 App. Cas. 409, to the effect that a provision that a decision of the' court is 'final' excludes the right of appeal, though it does not curtail the Crown prerogative to allow an appeal as of grace. Achilleous v. Housing Commission (1960) V.R. 164, per Dean, J., at pp, 168 and 169.

In Ram Dubey v. The Government of the State of Madhya Bharat and Anr. AIR 1952 MB 57 (FB) at p. 69 it is observed:

I am clear that the phrase 'final and conclusive' means nothing more than it would not be open to challenge by an appeal or other proceeding.

In South Asia Industries (P) Ltd.'s case AIR 1955 SC 1442 while considering the question of Letters Patent appeal under Section 39 of the Delhi Rent Control Act, 1958 their Lordships of the Supreme Court observed:

The expression 'final' prima facie connotes that an order passed on appeal under the Act is conclusive and no further appeal lies against it The last sentence in Section 43 of the Act, in our view does not restrict the scope of the said expression indeed, the said sentence imposes a further bar. The expression 'final' in the first part of Section 43 of the Act puts an end to a further appeal and the words shall not be called in question in any original' suit, application or execution proceedings bar collateral proceedings. The section imposes a total bar.

9. In the face of the aforesaid consistent authorities and on account of the use of the words 'final and conclusive' which emphatically point out towards decisiveness of the judgment of the High Court, we are clearly of the opinion that no appeal lies under Section 18 of the Rajasthan High Court Ordinance against the decision of a learned single Judge of the High Court pronounced by him in exercise of the powers Under Section 46 of the Act.

10. We might observe that the rights and liabilities relating to an election are the creatures of an election law and are not ordinary disputes at common law. When the legislature in its wisdom has attached a finality and conclusiveness to the order of the Tribunal subject to an appeal provided Under Section 46 of the Act to the High Court no further right of appeal, which is again a creature of statute, is available to the appellant.

11. In Gulab Bai's case : [1966]2SCR102 , strongly relied upon by Mr. Agrawal, finality was attached under Section 48 of the Guardian and Wards Act which made the orders passed under the relevant provisions of the said Act final subject to the result of the appeals which may be preferred against them or subject to the result of the revisions which may be filed against them and their Lordships of the Supreme Court expressly held:

In other words an order passed on appeal under Section 47 of the Act, or an order passed in revision under Section 115 of the Code, are strictly speaking, outside the purview of the finality prescribed for the orders passed under the Act, plainly because they would be final by themselves without any such provisions, subject, of course, to any appeal provided by law or by a constitutional provision, as for instance, Article 136.

This case is distinguishable because the finality was attached to the orders of the trial court Under Section 48 of the Guardians and Wards Act and not to the judgment of the superior courts.

12. A question may well arise whether under Section 48 of the Act is it the decision of the High Court on an appeal or the order of the Judge under Section 44 to which the words 'final and conclusive' apply? It will be noticed that in Section 48 two different words have been employed to denote the adjudication of two different bodies, namely, the word 'decision' has been employed in regard to the High Court and the word 'order' relates to the judgment of the Tribunal. The language employed in Section 48 is that the decision of the High Court on an appeal under Section 46 and the order of the Judge under Section 44 shall be conclusive and final. It is significant to note that after the figures 46 in the section there is a command it is followed by a conjunction 'and' and thereafter there is another come. The punctuation places beyond doubt the intention of the Legislature that the phrase 'final and conclusive' is applicable to both the decision as well as the order of the High Court and the Tribunal respectively. We might mention in Aswini Kumar v. Arbinda Bose : [1953]4SCR1 it has been held that if the statute in question is found to be carefully punctuated, punctuation, though a minor element, may be resorted to for purposes of construction. Besides this the marginal note to Section 48 reads 'finality of orders and decision'. In Section 44(1)(2) and (8) the adjudication by the Judge as envisaged by Section 40 has been called an 'order' and it is consistent with the interpretation we have put on Section 48.

13. In Ram Singh's case A1R 1936 PC 93 considered Punjab Sikh Gurdwara Act, 1925 did not contain any words of finality and therefore this case is clearly distinguishable.

14. We are doubtful if the argument advanced by Mr. Mehta that the Judge who decides an election petition under the Act is a persona designate for the definition of the term given in Gaborn's Concise Law Dictionary quoted with approval in Central Talkies Ltd., Kanpur v. Dwarka Prasad : 1961CriLJ740 does not appear to squarely fit in the language of Section 40 of the Act. Therefore, we need not be taken to have expressed any opinion on that aspect of the matter.

15. The result is that we uphold the preliminary objection of Mr. L.R.Mehta and hold that this appeal is not (sic) and dismiss it. In the circumstances we make no order as to costs.


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