Patna High Court
Jodhi Singh And Ors. vs Vedabarat Sharma Arya Alias Mauji Singh ... on 22 September, 1955
Equivalent citations: AIR1956PAT205, AIR 1956 PATNA 205
ORDER Ahmad, J.
1. The only question raised in this application is as to whether civil Court has jurisdiction to entertain a suit challenging an election held under the Bihar Panchayat Raj Act, 1947 (Bihar Act 7 of 1948), (hereinafter to be referred to as the Act).
2. Section 3(1) of the Act says that:
"For every village, the Government may, by notification, establish a Gram Panchayat".
Section 5(1) of the Act lays down:
"On the first establishment of the Gram Panchayat the prescribed authority shall cause to be prepared a register in the prescribed form of persons ordinarily residing within the local limits of the jurisdiction of the Gram Panchayat, and such register shall, among other things, contain the names of persons entitled under the provisions of Section 4 to be members of the Gram Panchayat on the date of its establishment".
Section 9 of the Act directs that:
"The executive functions of the Gram Panchayat shall be performed by an Executive Committee of which the head shall be known as the mukhiya".
Section 10 of the Act provides for the election and says:
"As soon as may be after its establishment, every Gram Panchayat shall, in the prescribed manner, elect, from among its own number, a mukhiya."
The next section, that is, Section 11, lays down: "The mukhiya shall in the prescribed manner appoint the members of the Executive Committee from amongst the members of the Gram Panchayat."
Sections 49 and 51 in Chap. 7 of the Act deal with election of panches and election of sarpanch respectively. Those sections so far as they relate to election are- as follows:
Section 49(1):
"Every Gram Panchayat shall, for the purposes of discharging the judicial functions imposed upon it by or under this Act, establish a Gram Cutchery consisting of a panel of fifteen persons of the prescribed qualifications to be elected by the Gram Panchayat in the prescribed manner ..... section 49(2):
"The persons elected by the Gram Panchayat under Sub-section (1) shall be known as Panches".
Section 51 : "A sarpanch shall be elected by the panel of Panches from amongst themselves in the prescribed manner, and he shall be in charge of the prescribed registers and shall, subject to the provisions of this Act be the President of the Gram Cutchery and benches thereof".
Chapter 10 of the Act deals with miscellaneous provisions and Section 80 lies in that Chapter. That section deals with the power to make rules and in so far as it is relevant for the present purpose reads as follows:
Section 80(1): "The Provincial Government may, after previous publication, make rules for carrying out the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the following matters, namely;
(a) the establishment of any authority under, and the exercise and performance of powers and duties conferred and imposed upon it by this Act;
* * * * * (d) the manner of electing a mukhiya; (e) the manner in which the Executive Committee shall be appointed; * * * * *
(q) the qualifications and the manner of election of Panches and the manner of publication of their names;
* * * * *
(v) any other matter by this Act required., or expressly or impliedly authorised, to be prescribed".
The Government in exercise of the power given to them under Section 80 of the Act have framed rules called the Bihar Panchayat Election Rules, 1949 (hereinafter to be referred to as Election Rules). The important rules therein so far as they relate to the present case are as follows:
Rule 3: "The first election of the Mukhiya and the Punches shall take place within a period of four months of the date of publication of the notification under Sub-section (1) of Section 3 directing the establishment of the Panchayat in a village or group of villages:
Provided that the Government may any time by order extend such period".
Rule 4(1): "On establishment of a Panchayat, the Elections Officer shall cause to be prepared in respect of that Panchayat, a register in Form A containing particulars of persons qualified to be members of the Panchayat under Section 4 and to vote at elections held under these rules".
Rule 39: "Save as otherwise provided, all disputes arising under the preceding rules shall be decided by the Elections Officer".
"Elections Officer" as defined in Rule 2(c) means:
"an officer appointed by the Provincial Government to discharge the functions of the Elections Officer under these rules and includes any other officer who may be specially appointed by the Elections Officer to discharge any of his functions under these rules".
Rule 40: "No election held under these rules shall be invalidated on any ground whatsoever". Rule 43: "Notwithstanding anything contained in these rules any irregularity in the conduct of elections under these rules or in preparation or finalisation of the register of members, the Government may make such order consistent with the provisions of the Act as may appear to it to be just and proper".
3. The suit giving rise to the present application relates to the election of the Gram Panchayat at Berhna in the district of Patna. In that election plaintiff opposite party No. 1 was also a candidate for the office of the Mukhiya. He, however, lost the election and thereupon he has along with others brought the suit in the civil court giving rise to the present application.
Therein the plaintiffs have alleged that "the election of the Panchayat Committee held at Berhana is illegal and unlawful and the necessary provisions of the law have not been observed". Their grievances are that "under the provisions of the Bihar Panchayat Raj Act necessary mandatory orders have been ignored and the provisions of the law have not been complied with": that) "no register was prepared of the voters consisting of the villagers"; that "no notice of the proposed election for 5-12-52 was announced neither the place nor the time of holding the election was announced"; that "a secret and private document in the form of the Register of voters was prepared and it was not even shown to the public. The names of the important persons were left and not mentioned in the Register of voters", that "on the proposed date of the election i.e., 5-12-52, the said election for members of the Panches and the Mukhia, the presiding Officer did not come to the Polling booth till 10 a.m. but came at 10-05 a.m.": and that "when the Presiding Officer came to the polling booth which was the local L. P. School, the voters of the village began to seek entry to give votes but they were not allowed to enter for giving votes". On these allegations the following reliefs have been sought in the plaint:
"(a) That it be declared that the election of Gram Panchayat held at Berhana P.S. Barh on 5-12-52 for the election of Punches and Mukhiya is illegal and the same be set aside.
(b) That it be ordered that the Punches of the Gram Panchayat and the other defendant be not allowed to function as Punches or Gram Sevak or as Mukhia of the Gram Panchayat.
(c) That the cost of the suit be awarded to the plaintiffs.
(d) A temporary, injunction be issued against the defendants restraining them from functioning as Punches or as executives of the Gram Panchayat at Berhana P.S. Barh (Patna)".
4. The petitioners, who have been impleaded as defendants in the suit, have in their application alleged:
"That the said Berhana Panchayat was duly established by a Government notification and thereafter a register according to the Rule 4, Bihar Panchayat Election Rules was duly prepared and was duly published and was also open to inspection according to the provisions of Rule 9 of the said Rules."
They have further said that plaintiff opposite party No. 1 and several other persons of the village thereupon raised objections under the provisions of Rule 10 of the said Election Rules by way of applications before the Election Officer which were disposed of on their merits and in accordance with law prescribed therefor. Further, it has been said that the Returning Officer under Rule 14 appointed the necessary dates.
Their case is that on the fixation of these dates nomination papers were filed before the Returning Officer and finally polling was held in accordance with the Bihar Panchayat Election Rules, 1949, with the result that petitioner l was duly elected as the mukhiya, petitioner 2 was duly appointed a gramsevak and other petitioners were duly elected as some of the panches.
5. It is not denied that the plaintiffs in the suit did not go to the Election Officer for the decision of their disputes about the election. In the written statement filed in the suit the defendant petitioners traversed all the allegations made in the plaint against the validity of the election and also raised the plea that the civil Court had no jurisdiction to entertain a suit of this character.
6. The trial Court treated this last plea as a preliminary point in the suit and on hearing the parties on that point by its order dated 24-11-1954 held that the plea raised by the defendant-petitioners on the point of the jurisdiction of the civil Court was not sustainable in law and therefore overruled it. This application by the defendants is directed against that order passed on the preliminary point. It is a fundamental principle of law that where there is a right there is a remedy 'ubi jus ibi remedium'.
Accordingly a litigant having a grievance of civil nature has, independently of any statute, a right to institute a suit in some Court or other, unless its cognizance is expressly or impliedly barred -- 'Malkarjan v. Narhari', 27 Ind App 216 P.C. (A). This principle is expressly codified in Section 9, Civil P. C. That section reads:
"The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Explanation: A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies".
There is no denying that in this case the suit is of a civil nature for it obviously involves civil rights. And it is by now well-established that this section makes no distinction between a civil right existing at common law or one created by statute -- 'Sultan Ali v. Nur Hussain', AIR 1949 Lah 131 CP.B.) CB).
Therefore, normally such a suit should be maintainable in civil Court unless the cognizance of a suit challenging an election held under the Bihar Panchayat Raj Act and the Bihar Panchayat Election Rules is held to be either expressly or impliedly barred. Mr. L.M. Sharma appearing for the petitioners has contended that cognizance of such a suit is barred under the Bihar Panchayat Election Rules 1949 and in support of this contention he has laid reliance on Rules 39, 40 and 43 of the Election Rules, which have already been quoted above verbatim.
7. Therefore, the point in controversy ultimately boils down to the construction and import of the aforesaid three Rules 39, 40 and 43. Learned Counsel for the petitioner in support of the construction which he wants to place upon them has laid reliance on the decisions in the case of --'Chaturbhuj Prasad v. Mouji Lal, AIR 1953 Pat 211 (C), -- 'Gopesh Chandra Aditya v. Benode Lal Das', AIR 1936 Cal 424 (D); -- 'Secretary of State v. Kameshwar Singh', AIR 1936 Pat 87 (E) and -- 'Bhaishanker Nanabhai v. The Municipal Corporation of Bombay', 31 Bom 604 (P).
8. In construing the aforesaid three rules some fundamental principles of law have to be kept in view. In the case of -- 'Secretary of State v. Mask and Co.', AIR 1940 P. C. 105 (G) Lord Thankerton observed:
"It is a settled law that the exclusion of the jurisdiction of Civil Courts is not to be readily Inferred, but that such exclusion must be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure".
The other equally established principle is that the onus is on the defendant to show that the jurisdiction of the Civil Court is ousted or that some other court has exclusive jurisdiction to entertain that determination -- 'Mary Board v. William Board', AIR 1919 P. C. 233 (H).
(8a) Now in the light of these principles we have to find as to whether the rule of exclusion contemplated by Section 9 , Civil P. C. is at all applicable to the present suit instituted by the opposite party in the court below.
The section first excludes suits which are expressly barred. "Expressly barred" means barred by any enactment of the time being in force passed by the legislature -- 'Mt. Atiqa Begam v. Abdul Maghni Knan', AIR 1940 All 272 (F.B.) (I). In this case the relevant enactment is the Act itself and the Rules trained thereunder and it is clear from them that the jurisdiction of the civil court to entertain a suit challenging the election held under them is not in any case expressly barred.
9. Next under the section are excluded those suits which are impliedly barred. Impliedly barred" means barred by general principles of law and equity or on ground of public policy. Looking at the problem from this point of view, the answer to it in my opinion has to be given in affirmative. An important rule of interpretation, as laid down is -- 'Raleigh Investment Co. v: Governor General in Council', AIR 1947 P.O. 78 (J), is that where a statute provides for special remedy in respect of injury suffered by reason of the exercise of the power of the statute the jurisdiction of the ordinary courts is barred.
In the case of -- 'Wolverhampton New Waterworks Co. v. Hawksford', (1859) 6 C.B. (N. S.) 336 at p. 356 (K) Willies, J. made the following observation which was quoted with approval by the House of Lords in -- 'Neville v. London Express Newspaper Ltd.', (19l9) A.C. 368 (L):
"There are three classes of cases in which a liability may be established by statute. There is that class where there is a liability existing at common law, and which is only re-enacted by the statute with a special form of remedy; there, unless the statute contains words necessarily excluding the common-law remedy, the plaintiff has his election of proceeding either under the statute or at common law.
Then there is a second class, which consists of those cases in which a statute has created a liability but has given no special remedy for it; there the party may adopt an action of debt or other remedy at common law to enforce it.
The third class is where the statute creates a liability not existing at common law, and gives also a particular remedy for enforcing it. Now it appears to me that the present case falls within such third class; and as with respect to that class it has been always held, that the party must adopt the form of remedy given by the statute....."
Therefore, it has to be held that though the general rule is that where a right of action exists, a suit is maintainable to enforce that right independently of the special remedies provided by the law and that the mere fact that an enactment provides another remedy or summary remedy will not constitute a bar to a suit in a civil court --Suraj Narain Prasad v. Jamil Ahmad', AIR 1946 Pat 385 (M). There is, however, one qualification for or this rule.
That qualification is that where a right is created by statute, and a method of enforcing the right or of redressing grievance caused in the exercise or enforcement of the right is pointed out by the statute creating such right, then the general remedy of suit will be impliedly barred. In other words, where a special tribunal or a public body is created by or under the authority of an act of legislature for the purpose of determining questions as to rights which are the creations of. the Act then the jurisdiction of that Tribunal or that body is, unless provided otherwise, exclusive and th3 civil courts cannot take cognizance of such matters -- 'Mani Ram v. Bhagwat Sarup', AIR 1949 All 50 (N), -- 'Registrar Co-operative Societies, Bihar v. Raghubir Ram', AIR1948 Pat 337 (O), --'Narasaparaju Ramamurthy v. Venkatanarayana', AIR 1941 Mad 506 (P), AIR 1936 Pat 87 (E), -- 'Ashby v. White', (1896) Sm LC 285 (Q), --'Vallance v. Falle', (1884) 13 Q.B.D. 109 (R), --. 'London and Brighton v. Watson', (1879) 4 CPD 118 (S), -- 'Anglo-Italian Bank v. Davies', (1878) 9 Ch. D 275 (T), -- 'Stevens v. Xeacocke', (1848) 11 Q. B. 731 (U), -- 'Beckford v. Hood', (1798) 7 TR 620 (V) and -- 'Doe v. Bridges', (1831) l B and Ad 847 (W).
10. In the present case as it is clear from some of the sections of the Act quoted above that the rights in dispute are the creations of the statute, namely, the Bihar Panchayat Raj Act. That Act lays down chat some of the offices including those in dispute created under it have to be filled up by election in a manner prescribed.
So far as the manner prescribed is concerned, that is not to be found in the Act itself. That has been elaborately laid down in the Rules framed under Section 80 of the Act. Rule 39 of the Election Rules, as already quoted above, says:
"Save as otherwise provided, all disputes arising under the preceding rules shall be decided by the Elections Officer".
This means that if there is any dispute regarding the propriety or the validity of the manner in which the election referred to in the Act itself, has been conducted, that shall be disposed of by the Election Officer. The rule thus provides a special remedy in respect of an injury suffered (by reason of the exercise of the powers under the statute.
Therefore, there is no escape from the conclusion that the jurisdiction of the civil courts for the decision of those disputes is by necessary implication barred and to that extent the jurisdiction of the Tribunal or the Election Officer is exclusive. The phrase "save as otherwise provided" in this Rule refers to the last Rule, that is Rule 43 which provides:
"Notwithstanding anything contained in these rules any irregularity in the conduct of elections under these rules or in preparation or finalisation of the register of members, the Government may make such order consistent with the provisions of the Act as may appear to it to be just and proper".
I have already given above the grounds on which the election has been challenged. They all relate to the contravention of the one or the other of the Election Rules. That being so, the present dispute should have been brought before the Election Officer for decision and not to the civil Court.
I may mention here that the learned Government pleader appearing for the opposite party in challenging the proposition of the petitioner relied on the authority of AIR 1946 Pat 385 (M). In that case the point in controversy was whether under 8s. 13 and 14, Bihar House Rent Control Order. 1942, the jurisdiction of civil courts to pass a decree for ejectment was or was not barred.
Manohar Lall, J. in answer to that question in his Judgment, if I may say so with all respect to the learned Judge, rightly pointed out that no liability which was not 'existing before was created by the Control Order so that it could not be held that the party must adopt the form of remedy given by the Control Order. Therefore, I think that that decision is of no assistance.
11. For the reasons stated above, I hold that the application should be allowed with costs, the order under revision should be set aside and the rule be made absolute. Hearing fee Rs. 32/-.