Allahabad High Court
Dr. Dinesh Sharma vs Additional District Judge And Ors. on 24 May, 2007
Equivalent citations: 2008(1)AWC973
Author: Rajiv Sharma
Bench: Rajiv Sharma
JUDGMENT Rajiv Sharma, J.
1. Heard Sri Umesh Chandra, senior advocate, duly assisted by Sri S.B. Pandey and Sri Rakesh Kumar Srivastava for the petitioner and Sri G.K. Mehrotra assisted by Sri Anupam Mehrotra for the respondent No. 3 and the learned standing counsel for the respondent Nos. 1 and 2.
2. By means of the instant writ petition, the petitioner is assailing the order dated 15.3.2007, passed on application Nos. C-27 and C-33 in an Election Petition No. 2 of 2006, by Additional District Judge, Court No. 1, Lucknow.
3. It has been stated by the learned Counsel for the petitioner Sri Umesh Chandra that in an election for the post of Mayor of Lucknow, the petitioner was declared elected by defeating respondent Nos. 3 to 18. The said election was challenged by the respondent No. 3 by preferring an election petition before the District Judge, Lucknow and the District Judge, Lucknow, after admitting issued notices to the respondents fixing 19.12.2006 and also transferred the said election petition before the Additional District Judge, Court No. 1, Lucknow for proceeding further with the petition. A preliminary objection as regards maintainability of the election petition has been taken by the petitioner by filing two separate applications, which were numbered as C-27 and C-33 before the Additional District Judge. The same were contested by respondent No. 3, who has filed the objections to the said applications and the Additional District Judge, Court No. 1, Lucknow, after hearing the arguments advanced by the counsel for the parties rejected both the applications by means of order dated 15.3.2007.
4. The order dated 15.3.2007 is being assailed by the petitioner in the instant writ petition.
5. Mr. G.K. Mehrotra, appearing on behalf of respondent No. 3, raises a preliminary objection that the petitioner has got equally efficacious alternative statutory remedy by preferring an appeal under Adhiniyam 74 of the Uttar Pradesh Municipal Corporation Adhiniyam, 1959 and even otherwise the writ petition is not maintainable against the interlocutory order under Article 226 of the Constitution of India. He further submits that the petitioner is adopting delaying tactics by not filing written statement in the said election petition and instead preferred the instant writ petition, as such, an attempt has been made to scatter the hearing of decision of the election petition. He further submits that the submission advanced by the petitioner before the Additional District Judge, Lucknow in support of the applications are:
(1) Non-compliance with the U.P. Municipal Corporations Adhiniyam, 1959 ("Adhiniyam") and Rule 8 of the Rules framed under Section 79 thereof, namely, U. P. Nagar Mahapalika Nirwachan Yachikaon Ki Niyamawall, 1959, ("the Rules");
(2) Non-compliance with Order VII, Rule 14(1) of C.P.C. for the reason that documents on which election petitioner relies have not been entered in a list and have not been produced in the Court when the election petition was presented;
(3) Non-compliance with Order VII, Rule 14 (2) of C.P.C, since, as per writ petitioner/ respondent-1 of election petition, as regards the documents not in possession or power of election-petitioner, it is not stated in election petition in whose possession or power the said documents are;
(4) Order VII, Rule 14(3) of C.P.C. was referred to in support of the contention that documents, which have not been entered into a list & not produced in Court at the time of presentation of petition, can be entertained only with leave of the Court;
(5) The photocopies of documents annexed to election petition are inadmissible in evidence. It was also vaguely alleged that some of them are illegible, but no illegible copy was specified;
(6) The election petition was not filed within limitation prescribed by Section 61(2) of Adhiniyam, since, as per the writ petitioner/ respondent-1 of election petition, the election petition that was filed within the prescribed period was not in accordance with law due to non-compliance with Order VII, Rule 14 and Order VI. Rule 15 of the C.P.C. and was not a petition in eyes of law.
(Thus, as per writ petitioner/ respondent-1 of election petition, it is the respondent to a case who will determine the merit of the case and if he finds that the case is lacking in merit or not filed in accordance with his perception of law, the case would be liable to be dismissed for limitation, not on merits!) (7) The election petition was said to be in violation of Order VI, Rule 15 and Order XIX, Rules 5 and 9 of the C.P.C., which make provisions regarding affidavit.
(8) The alleged violation of Order VII, Rule 14 and Order VI, Rule 15 of the C.P.C. attracted dismissal of election petition under Section 66 of the Adhiniyam.
(Section 66 provides for dismissal of election petition if not presented within time or if it does not comply with the provision made under Section 79 relating to deposit of security or court fees payable is not furnished within the time allowed.) and the same were fully considered by the Additional District Judge, Court No. 1, Lucknow, in his order dated 15.3.2007.
6. An argument has also been advanced by Sri G.K. Mehrotra with regards to the conduct of the petitioner.
7. Sri G.K. Mehrotra further submits that the counsel for the petitioner had not objected to the jurisdiction of the Additional District Judge, Court No. 1, Lucknow, but instead appearance was put in by him and requested for supply of copy of the plaint. Further he had participated in the proceedings and filed the objections raising preliminary objections with regards to the maintainability of the election petition, but no objection either in writing or oral has been raised by the petitioner with regards to the jurisdiction of Additional District Judge, Court No 1, Lucknow and as such, it is not open for him to raise the objection of jurisdiction in the instant writ petition.
8. In support of the submission Sri G.K. Mehrotra has relied upon the following cases of Apex Court:
(1) N.T. Veluswamt Thevar v. G. Raja Nainar and Ors. ;
(2) Major Chandra Bhan Singh v. Latafat Ullah Khan and Ors. ;
(3) Beopar Sahayak (P.) Ltd. and Ors. v. Vishwa Nath and Ors. ;
(4) Kailash v. Nanhku and Ors. ; and (5) R.N. Gosain v. Yashpal Dhir .
9. In view of the aforesaid preliminary objections, Sri G.K. Mehrotra submits that the petitioner is not entitled for any relief from this Court under Article 226 of the Constitution of India and the writ petition is liable to be dismissed summarily.
10. Rebutting the preliminary objections, Sri Umesh Chandra stated that the writ petition is maintainable as the Additional District Judge, has no jurisdiction to hear the election petition as the District Judge, cannot effect any transfer transferring the election petition for hearing to the Additional District Judge in the absence of any provision under the Uttar Pradesh Municipal Corporations Adhiniyam, 1959. It is only the High Court which can pass orders for transferring the case under Adhiniyam 68. He has relied on the provisions of the Adhiniyam, i.e., 2 (18), 2 (32), 61, 68, 472 under Chapter XX (proviso) of the Uttar Pradesh Municipal Corporations Adhiniyam, 1959. He has also placed reliance on Sections 20 and 43BB of Uttar Pradesh Municipalities Act, 1916 and Clause 14 of the Amalgamation order.
11. Thus, the order passed by the Additional District Judge, dated 15.3.2007 on an application Nos. C-27 and C-33 are without jurisdiction and are to be quashed and alternate remedy in such cases is not barred.
12. Sri Umesh Chandra further submits that there is no estoppel against law and further it is the duty of the Court to decide the preliminary objection in the election petition. He further submits that the High Court would not refuse to issue a writ of certiorari merely because there was a right of appeal. It is well-settled that ordinarily the High Court would require the petitioner to have recourse to his ordinary remedies, but if it found that there had been a breach of fundamental principles of justice, the High Court would certainly not hesitate to issue the writ of certiorari. He further submits that the High Courts have ample powers under Article 226 of the Constitution of India, and are duty bound thereunder, to issue such appropriate orders or directions as are necessary in order to prevent persons from being subjected to lengthy proceedings and unnecessary harassments by an executive authority acting without jurisdiction. Alternative remedies such as are provided cannot always be a sufficient reason for refusing quick relief in a fit and proper case.
13. Sri Umesh Chandra further submits that where the objection to the jurisdiction of an inferior court appears on the fact of the proceedings, prohibition lies at any time, even after judgment or sentence inspite of the laches or acquiescence of the applicant; this rule applies, even if the application is merely to avoid payment of the costs of the applicant's own vexatious suit; but if nothing is left to prohibit, a different remedy, such as certiorari or quash, must be sought.
14. As regards the conduct of the petitioner, Sri Umesh Chandra has submitted that he has rightly averred in paragraphs 34 and 33 of the memo of the writ petition that application, which has been moved by the respondents to the returning officer and the orders passed by him has not been endorsed to the respondents and inspite of that photocopy of the same has been annexed with the election petition as well as in the memo of the writ petition.
15. In support of the aforesaid submission, Sri Umesh Chandra has relied upon the following cases of the Apex Court:
(1) Whirl Pool Corporation v. Registrar Trade Marks, Mumbai and Ors. ;
(2) State of U. P. v. Mohd. Nooh 1958 SCR 595;
(3) Sushil Kumar Mehta v. Govind Ram Bohra ;
(4) Calcutta Discount Company Ltd. v. Income Tax Officer and Anr. 1961 SCR 241 ;
(5) East India Commercial Co. Ltd. Calcutta and Ors. v. Collector of Customs, Calcutta and Anr. ;
(6) Lady Dinbal Dinshaw Petit and Ors. v. Domination of India and Anr. ;
(7) Karnal Improvement Trust, Karnal v. Prakash Wanti Smt. (Dead) ;
(8) Vithalbhai (P.) Ltd. v. Union Bank of India 2005 (4) SCC 159 : 2005 (2) AWC 1023 (SC);
(9) U.P. Rajkiya Nigam Ltd. v. Indure Pvt. Ltd. and Ors. ;
(10) Azhar Husain v. Rajeev Gandhi 1986 (Supp) SCC 315;
(11) Dharti Pakar Madan Lal Agarwal v. Rajeev Gandhi 1987 (Supp) SCC 93.
16. In order to appreciate the rival submission advanced by the parties counsel, relevant provision of Uttar Pradesh Municipal Corporations Adhiniyam, 1959 is reproduced as under, i.e., Adhiniyams 2 (18), 2 (32), 61, 68, 472 under Chapter XX (Proviso) of the Uttar Pradesh Municipal Corporations Adhiniyam, 1959.
17. Adhiniyam 2 (18) of the Uttar Pradesh Municipal Corporations Adhiniyam, 1959, provides:
"District Judge" includes an Additional District Judge to whom any function of the District Judge has been transferred under this Act.
18. Adhiniyam 2(32) of the Uttar Pradesh Municipal Corporations Adhiniyam, 1959, provides:
"the Judge" means the Judge of the Court of Small Causes having jurisdiction in the City under the Provincial Small Cause Courts Act, 1887.
19. Adhiniyam 61 of the Uttar Pradesh Municipal Corporations Adhiniyam, 1959, provides questioning of election of Mayor or Deputy Mayor, which is reproduced as under:
(1) The election of a person as Mayor or Deputy Mayor may be questioned by any unsuccessful candidate or by any person whose nomination paper was rejected or by any member of the Corporation by presenting a petition to the District Judge exercising jurisdiction in the city on any one or more of the grounds mentioned in Section 71.
(2) The petition shall be presented within seven days of the declaration of the result of election.
20. Adhiniyam 68 of the Uttar Pradesh Municipal Corporations Adhiniyam, 1959, provides for decision on the petition, which is reproduced as under:
If the petition has not otherwise been dismissed in the course of hearing, the District Judge shall at the conclusion of the trial of an election petition make an order-
(a) dismissing the election petition; or
(b) declaring the election of all or any of the returned candidates to be void; or
(c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected.
21. Adhiniyam 472 under Chapter XX (Proviso) of the Uttar Pradesh Municipal Corporations Adhiniyam, 1959, provides:
472. Appeals when and to whom to lie.--(1) Subject to the provisions hereinafter contained, appeals against any annual value or tax fixed or charged under this Act shall be heard and determined by the Judge:
Provided that any such appeal pending at any stage before the Judge may be transferred by the District Judge for hearing and disposal, to any Additional Judge of the Court of Small Causes or Civil Judge or Additional Civil Judge having jurisdiction in the City.
(2) No such appeal shall be heard unless-
(a) it is brought within fifteen days after the accrual of the cause of complaint;
(b) in the case of an appeal against an annual an objection has previously been made and has been disposed of under Section 309;
(c) in the case of an appeal against any tax in respect of which provision exists under this Act for an objection to be made to the Municipal Commissioner against the demand, such objection has previously been made and disposed of;
(d) in the case of an appeal against any amendment or alteration made in the assessment list for property taxes under Sub-section (1) of Section 213, an objection has been made in pursuance of a notice issued under the proviso to the said sub-section and such objection has been disposed of;
(e) in the case of an appeal against a tax, or in the case of an appeal made against an annual value after a bill for any property tax assessed upon such value has been presented to the appellant, the amount claimed from the appellant has been deposited by him with the Municipal Commissioner.
22. Section 20 of the Uttar Pradesh Municipalities Act, 1916, deals with form and presentation of election petitions, which is reproduced as under:
(1) An election petition shall be presented within 30 days after the day of which the result of the election sought to be questioned is announced by the Returning Officer and shall specify the ground or grounds on which the election of the respondent is questioned and shall contain a concise statement of the material facts on which the petitioner relies and set for the full particulars of any corrupt practices that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practices and the dates and place of the commission of each such practice.
(2) The petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (V of 1908), for the verification of pleadings.
(3) The petition may be presented by any candidate in whose favour votes have been recorded and who claims in the petition to be declared elected in the room of the person whose election is questioned or by ten or more electors of the municipality or by a person who claims that his nomination paper was improperly rejected.
(4) The person whose election is questioned and, where the petitioner claims that any other candidate should be declared elected in the room of such person, every unsuccessful candidate who is not a petitioner in the petition shall be made a respondent to the petition.
(5) The petition shall be presented to the District Judge exercising Jurisdiction in the area in which the municipality, to which the election petition relates, is situate:
Provided that the petition shall not be entertained by the District Judge, unless it is accompanied by a treasury challan showing that the prescribed security has been deposited.
23. Section 43BB of the Uttar Pradesh Municipalities Act, 1916, deals with the transfer of petition, which is reproduced as under:
(1) On the application of any party to an election petition presented under sub-section (5) of Section 20 and after notice to the other parties thereto, and after hearing such of them as desire to be heard, or of its own motion, without such notice, the High Court may at any stage,-
(a) transfer an election petition pending before a District Judge for trial to any other District Judge; or
(b) re-transfer the same for trial to the District Judge from whom it was withdrawn.
(2) The District Judge may at any stage transfer an election petition pending before him under this Act to an Additional District Judge and may withdraw any election petition pending before an Additional District Judge, and,-
(i) transfer or dispose of the same; or
(ii) transfer the same for trial or disposal to any other Additional District Judge; or
(iii) re-transfer the same for trial or disposal to the Court from which it was withdrawn.
(3) Where any election petition has been transferred or re-transferred under Sub-section (1) or Sub-section (2), the District Judge or the Additional District Judge, who thereafter tries such petition, may, subject to any direction in the order of transfer to the contrary, proceed from the point at which it was transferred or re-transferred:
Provided that he may, if he thinks fit, recall and reexamine any of the witnesses already examined.
24. Clause 14 of the United Provinces High Courts (Amalgamation) Order, 1948, provides that:
The new High Court, and the Judges and division Courts thereof, shall sit at Allahabad or such other places in the United Provinces as the Chief Justice may, with the approval of the Governor of the United Provinces, appoint:
Provided that unless the Governor of the United Provinces with the concurrence of the Chief Justice otherwise directs, such Judges of the new High Court, not less than two in number, as the Chief Justice may from time to time nominate, shall sit at Lucknow in order to exercise in respect of cases arising in such area in Oudh as the Chief Justice may direct, the jurisdiction and power for the time being vested in the new High Court:
Provided further that the Chief Justice may in his discretion order that any case or class of cases arising in the said areas shall be heard at Allahabad.
25. With regards to the submissions of Mr. Umesh Chandra that the District Judge has no power to transfer the election petition to any other Court under the provisions of U. P. Municipal Corporations Adhiniyam, 1959, It will be abundantly clear that Adhiniyams 61 and 59 only provides for presenting the petition before the District Judge exercising Jurisdiction in the city on any one or more of the grounds mentioned in Section 71 and such petition shall be presented within seven days for declaration of the result.
26. In Bengal, Agra and Assam Civil Courts Act, 1887, Section 3 defines Classes of Civil Courts. Section 8 gives definition of Additional Judges and says that when the business pending before any District Judge requires the aid of Additional Judges for its speedy disposal, the appointment of such Additional Judges may be made. Sub-clause (2) of Section 8 provides that Additional Judges will carry out the functions of the District Judge as assigned to them by the District Judge, who can transfer any case to him and in the discharge of those functions, they shall exercise the same powers as the District Judge.
27. Legislature has only provided that the petition is to be presented before the District Judge and not for proceeding of trial. Thus, as the District Judge includes Additional District Judge and as such, the election petition is to be presented before the District Judge as required under Adhiniyams 61 and 59 and the trial of the said election petition can be held by him or any of the Additional District Judge. Presentation of the petition and the trial are two different stages. The Legislature has only provided under the Adhiniyam for presentation of the election petition before the District Judge and not for trial.
28. It is a settled legal principle of interpretation of statute that no word is redundant and every word in a statutory provision is to be given an effective meaning after determining the intent of the Legislature. in Shyam Kishori Devi v. Patna Municipal Corporation and Anr. , the Hon'ble Supreme Court held as under:
It is well known rule of construction that a Court must construe a section, unless it is impossible to do so, to make it workable rather than to make it unworkable. In the words of Lord Bramwell, the words of a statute never should in interpretation be added to or subtracted from, without almost a necessity.
29. No word can be rendered ineffective or purposeless. Courts are required to carry out the legislative intent fully and completely. While construing a provision, full effect is to be given to the language used therein, giving reference to the context and other provisions of the Statute. By construction, a provision should not be reduced as a "dead letter" or "useless lumber". An interpretation which renders a provision an exercise in futility, should be avoided, otherwise it would mean that enacting such a provision in legislation was "an exercise in futility" and the product came as a "purposeless piece" of legislation and provision had been enacted without any purpose and entire exercise to enact such a provision was "most unwarranted besides being uncharitable." (Vide Ram Narain Medhi v. State of Bombay : R.G. Jacob v. Republic of India ; Patel Chunibhai Dajibha v. Narayanrao Khanderao Jambekar and Anr. ; Anandji Haridas & Co. Pvt. Ltd. v. Engineering Mazdoor Sangh and Anr. ; Commissioner of Sales Tax, U.P. v. Madanlal Dan and Sons, Bareilly ; Annapurna Biscuit Manufacturing Co. Kanpur v. Commissioner of Sales Tax, U.P. Lucknow ; Vazir Sultan Tobacco Co. Ltd. v. Commissioner of Income-tax, Andhra Pradesh, Hyderabad ; M.V. Elisabeth and Ors. v. Harwan Investment and Trading Pvt. Ltd., Hanoekar House. Swatontapeth, Vasco-De-Gama, Goa ; Institute of Chartered Accountants of India v. Price Waterhouse and Anr. ; Sultana Begum v. Prem Chand Jain ; State of Bihar and Ors. v. Bihar Distillery Ltd. and Ors. ; South Central Railway Employees Co-operative Credit Society Employees' Union, Secunderabad v. Registrar of Co-operative Societies and Ors. ; Subash Chander Sharma and Anr. v. State of Punjab and Ors. ; Bharathidasan University and Anr. v. All India Council for Technical Education and Ors. AIR 2001 SC 2861 and Mor Modern Cooperative Transport Society Ltd. v. Financial Commissioner and Secretary to Government. Haryana and Anr. ).
30. Thus the election petition can be heard by any of the Additional District Judge as words "District Judge" includes "Additional District Judge".
31. In view of the above, the Additional District Judge has Jurisdiction to try the election petition and pass appropriate orders.
32. Since I have already held that the Additional District Judge, has Jurisdiction to try and hear the petition and as such there was no lack of jurisdiction in disposing of the application Nos. C-27 and C-33, by means of the order dated 15.3.2007. Thus, the petitioner has equally efficacious statutory alternative remedy available under Section 74 of the Uttar Pradesh Municipal Corporation Adhiniyam, 1959, to file an appeal assailing the aforesaid order dated 15.3.2007.
33. With these observations, the writ petition is dismissed on the ground of availability of alternative remedy.
34. As regards the plea of acquiescence, conduct of the petitioner, maintainability of the election petition, promissory estoppel and the arguments advanced thereof including the judgments relied in support of the aforesaid plea by the learned Counsel for the parties, I am not entering into the aforesaid questions as I have already dismissed the petition on the ground of availability of alternative remedy.
It will be open for the parties to raise the aforesaid pleas before the appropriate forum.