Bombay High Court
Hasan Ali S/O Mohammaad Ali And Anr. vs The Collector And Ors. on 25 February, 1997
Equivalent citations: 1997(4)BOMCR281
Author: S. Radhakrishnan
Bench: S. Radhakrishnan
JUDGMENT S. Radhakrishnan, J.
1. Rule. Rule made returnable forthwith by consent. Heard the Counsel at length.
2. The brief facts of the case are that on 19th January, 1997, the general elections of the Municipal Council, Kamptee was held in which 30 Councillors from 30 wards were elected and out of these 30 wards, 8 wards were reserved for Other Backward Community (O.B.C.). On 21st January, 1997, the results of the above elections were declared and 30 Councillors were duly elected. The petitioner No. 1 was elected from Ward No. 5. The petitioner No. 2 was elected from Ward No. 20 and the respondent No. 3 was elected from Ward No. 27. The respondent No. 1 being the Collector had called the meeting of the Councillors for election of the President which meeting was to be held on 7th February, 1997 under section 51 of the Maharashtra Municipal Council, Nagar Panchayat and Industrial Township Act, 1965 (hereinafter referred to as the said Act for the sake of brevity). The seat of the President was reserved for O.B.C. and as such only candidates belonging to the O.B.C. were entitled to contest for the election of the President. On 1st February, 1997 Shri Shravan Narayan Kojarkar filed an Election Petition No. 36 of 1997 before the 7th Additional District Judge, Nagpur under section 21 of the said Act challenging the election of the petitioner No. 1. In this petition, the application under Order 39, Rules 1 and 2 of the Code of Civil Procedure was moved for prohibiting the petitioners from acting as the Councillor of Kamptee and also taking part in the meeting of the Council scheduled to be held on 7th February, 1997. On 6th February, 1997, the 7th Additional District Judge had fixed the Election petition for hearing and on this date the petitioner had filed his reply opposing the grant of any relief under Order 39, Rules 1 and 2 had argued the matter, on which date, the petitioner had also sought for permission to file additional documents as a result of which no orders on the above application for injunction were passed either on 6th or 7th February, 1997 and the matter was adjourned to 10th February, 1997 without any order of injunction.
3. On 7th February, 1997, the meeting of the Councillors commenced at 12.00 Noon for election to the post of the President. At the said meeting five Councillors had filed their nominations for the post of the President and after scrutiny of the forms, they were duly accepted by the respondent No. 2. This process was completed at about 12.05 P.M. on 7th February, 1997. The respondent No. 2 granted 15 minutes time for the purpose of withdrawal and accordingly three candidates had withdrawn their nominations for the post of the President leaving in the field only the first petitioner and the 3rd respondent for straight contest for the post of the President. At this juncture, after the withdrawal of the three nominations at about 12.45 P.M. one Jeevanlal Babulal Kashikar entered the meeting hall and presented an unsigned and unstamped copy of the Court injunction passed by the Joint Civil Judge, Junior Division, Nagpur in Civil Suit No. 181/97 dated 6-2-1997. The said interim order had restrained the first petitioner from filing the nomination and from participating in the meeting being held on 7th February, 1997 and also prohibiting the first petitioner from contesting the election of the President. The respondent No. 2 thereafter had personally contacted the Registrar of the Court to verify whether any such order was passed or not and also recorded the statement of said Shri Jeevanlal Babulal Kashikar. In view of the above restraint order from the Court, the petitioner was prohibited from participating in the said meeting and also taking part in the contest of the President election. As a result, the respondent No. 2 in view of the above Court order did not permit the petitioner No. 1 to contest and declared the respondent No. 3 to have been elected as President unopposed.
4. The petitioner through his Counsel at Nagpur verified the facts and found that such an order had really been passed in the aforesaid Suit No. 181/97. On the instructions of the petitioner No. 1, the learned Counsel for the petitioner No. 1 had moved the said Joint Civil Judge, Junior Division, Nagpur on 7th February, 1997 between 3.00 P.M. to 4.00 P.M. and had made an application mainly contending that the Court had no jurisdiction whatsoever to entertain the above suit and also could not have passed such an interim relief in view of the very categorical position in section 21 of the said Act, which provides a comprehensive remedy of election petition and also Article 243-ZG of the Constitution of India, which also bars the filing of any such legal proceeding. In view of the above application, the learned Joint Civil Judge, Junior Division, Nagpur vacated the said interim injunction granted on 6th February, 1997. Therefore, on 7th February, 1997 by 4.00 P.M., the very injunction order on the basis of which the respondent No. 3 could get elected unopposed came to be vacated.
5. Now the petitioners have approached this Court in the larger interests of justice seeking a Writ/Order and/or Direction, whereby the election of the 3rd respondent as President of the Municipal Council in the meeting of the Municipal Council held on 7th February, 1997 be quashed. The petitioner also seeks relief that the first respondent Collector be directed to convene a fresh meeting of Councillors to elect the President afresh for the Municipal Council, Kamptee within a period of 10 days from the date of this petition. The petitioners also prayed for interim relief of prohibiting the 3rd respondent from taking the charge of the post of the President and from acting and/or functioning as President of the Municipal Council, Kamptee.
6. This petition was moved before us on 12-2-1997 on which date, after hearing the learned Counsel for the petitioner and the Assistant Govt. Pleader for the respondents No. 1 and 2, this Court was pleased to direct Notice before admission returnable on 17-2-1997 and also granted status quo as on that date. Thereafter at the request of the parties, the matter was heard at length on 18-2-1997 and also again on 20-2-1997 by way of final hearing.
7. The learned Counsel for the petitioner Shri Dharmadhikari firstly contended that the aforesaid Suit No. 181 of 1997 filed before the Joint Civil Judge, Junior Division, Nagpur was totally impermissible and the learned Judge ought not to have entertained the said suit and granted any ad interim relief in view of the categorical provision under section 21 of the said Act, which provides for a comprehensive remedy of election petition and also prohibits any such suit. The learned Counsel also pointed out that as per Article 243-ZG of the Constitution of India which reads as under :
"Notwithstanding anything in this Constitution:
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made Article 243-ZA shall not be called in question in any Court
(b) No election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State;"
there is a bar to entertain the said suit by the learned Civil Judge. The learned Counsel for the petitioner also argued that there is a clear implied ouster of jurisdiction to entertain such a suit. In this behalf the learned Counsel for the petitioner relied upon the well-known Judgment with regard to implied bar of entertaining the suits reported in Dhulabhai v. State of M.P., , where it is categorically held that "Where the Statute gives a finality to the orders of the special tribunals the Civil Courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Court would normally do in a suit."
The learned Counsel for the petitioner also relied on another well-known Judgment of the Apex Court in Raja Ram Kumar v. Union of India, , wherein a number of Judgments were duly considered including Dhulabhai and the Court observed as under :
"Generally speaking, the broad guiding considerations for determining whether Civil Court's jurisdiction is excluded are that wherever a right, not pre-existing in law, is created by a statute and that statute itself provided a machinery for the enforcement of the right, both the right and the remedy having been created uno flatu and the finality is intended to the result of the statutory proceedings, then even in the absence of an exclusionary provision the Civil Courts' jurisdiction is impliedly barred. If however, a right pre-existing in common law is recognised by the Statute and a new statutory remedy for its enforcement provided, without expressly excluding the Civil Court's jurisdiction, then both the common-law and the statutory remedies might become concurrent remedies leaving open an element of election to the persons of inherence."
To what extent, on what areas and under what circumstances and conditions, the Civil Court's jurisdiction is preserved, even when there is an express Clause excluding their jurisdiction are considered in Dhulabai's case. From both the above decisions, it is very clear that when finality is attached to any order passed the courts normally are not to interfere. Over and above a right is not part of common law right, but as is specifically created, then the Civil Court has no jurisdiction and only the forums which are prescribed under the said Act can entertain the same suit. In this case, the right to get elected as a President of a Municipal Council or any objection to the election of a President to the said Council is basically a legal right created under the said Act and it was not part of a common law right.
8. In this context, it is also very important to note that the reliefs claimed in the aforesaid suit are as under :-
a) pass a decree for declaration that the defendant have no right to take part in the proceedings of the meeting to be held on 7th day of February, 1997, to be held at Municipal Hall at Kamptee, District Nagpur, where the co-opted Councillors and the President of Kamptee Nagar Parishad are to be elected;
b) pass a decree for declaration that the defendants have no right to file the nomination forms for the post of President of Kamptee Nagar Parishad;
c) pass a decree for declaration that the defendant have no right to contest for the post of President of Kamptee Nagar Parishad;
d) for the permanent injunction restraining the defendant from taking part in the meeting proceedings, in which the election of co-opted Councillors and President of Nagar Parishad, Kamptee, are to be held;
e) permanent injunction, restraining the defendant from filing the nomination forms for the post of President of Kamptee Nagar Parishad;
f) permanent injunction restraining the defendant from contesting for the post of President of Kamptee Nagar Parishad.
From the above it is very clear that the suit is basically for a declaration that the petitioner No. 1 ought not to take part in the election for the post of the President and also challenged the right of the petitioner to file a nomination for the post of the President.
9. The learned Counsel for the petitioners very strongly contended that the rule of law must prevail and such gross injustice ought not to be allowed to be continued in asmuch as there was an ad interim injunction granted by the learned Joint Civil Judge, Junior Division on 6th Feb. 1997 which fact the respondent No. 3 did not disclose to the respondent No. 2 on the date of election for the post of President till the three nominations were withdrawn and only the petitioner No. 1 and the respondent No. 3 were in the field for the contest of the election. By virtue of the above aforesaid interim order, the petitioner No. 1 was prevented from contesting the post of the President and the respondent No. 3 was declared as elected unopposed. On the very day i.e. on 7th February, 1997, between 3.00 P.M. to 4.00 P.M., the very injunction order, on the basis of which the respondent No. 3 was elected came to be vacated by the learned Joint Civil Judge, Junior Division, Nagpur. Therefore, the learned Counsel for the petitioners submitted that the purported alternative remedies under section 51(3-A) or 51(5) of the said Act would not be efficacious and proper and this Court alone ought to interfere in the said cases and not leave the parties to take recourse to the said alternative remedies. In this context, the learned Counsel referred to and relied upon the judgment of the Apex Court in R.G. Shinde v. State of Maharashtra, , wherein the following observations are of vital importance.
"Respect for law is one of the cardinal principles for an effective operation of the Constitution, law and the popular Government. The faith of the people is the source and succour to invigorate justice intertwined with the efficacy of law. The principle of justice is ingrained in our conscience and though ours is a nascent democracy which has now taken deep roots in our ethos of adjudication-be it judicial, quasi-judicial or administrative as hallmark, the faith of the people in the efficacy of judicial process would be disillusioned, if the parties are permitted to abuse its process and allowed to go scot free. It is but the primary duty and highest responsibility of the Court to correct such orders at the earliest and restore the confidence of the litigant public, in the purity of fountain of justice, remove stains on the efficacy of judicial adjudication and respect for rule of law, lest people would lose faith in the courts and take recourse to extra-constitutional remedies which is a death-knell to the rule of law."
"In M.V. Venkataramana Bhat v. Returning Officer, C.A. No. 3607 of 1993 this Court by Judgment dated July 30, 1993, set aside the election. The facts were that one Jaiprakash Rai filed a writ petition in the High Court of Karnataka one day prior to the date of election of the Pradhan of the Samithi, obtained ad interim order and prevented two members to participate and exercise their franchise in the election of the Pradhan. His candidate was elected with a margin of one vote. The writ petition under appeal was ultimately dismissed. The writ petition under appeal was filed to declare the election as illegal, void etc. The High Court dismissed it. On appeal, this Court taking notice of the background of these facts and circumstances held that ad interim order was obtained by absue of the process of the Court to help the successful candidate. Even if the remedy by election petition was available, the Tribunal had no jurisdiction to sit over the correctness of the order passed by the High Court. Therefore, the High Court alone had to correct it by exercising its power under Art. 226 to prevent such abuse of judicial process and should exercise its power of high responsibility to undo injustice done to the adversory undoing the effect of the order obtained in abusing of the process of the Court. The ratio would apply with equal force to the facts of this case. Therefore, the High Court should have exercised its power under Article 226 and would have modified the order as prayed for."
Therefore, the learned Counsel for the petitioners very strongly contended that this Court ought to set aside the injustice caused and sought the relief as prayed in the petition.
10. The learned Counsel for the respondent No. 3, Shri Aney basically tried to contend that the petitioner No. 1 does not belong to O.B.C. category at all. And as such he ought not to have been elected as an O.B.C. Candidate for the post of President reserved for O.B.C. and also be not allowed to take part in the election of the President, Kamptee Municipal Council. He also tried to contend that the petitioner No. 1 has fraudulently obtained the Caste Certificate, whereas there was in another Case No. 1103 of 1996, belonging to some other party by name Mohsina Alam, wherein the caste Certificate of O.B.C. was issued and the petitioner had manipulated his Caste Certificate. In view of this allegation, we called for the original records of both the cases and found that there are two separate cases, wherein the same No. 1103 of 1996 has been allocated as they pertain to two different Revenue Courts, one belonging to the petitioner and another belonging to the said Mohsina Alam. We had even examined the two separate registers maintained by the said Revenue Courts and the entries of both the cases are found in both the registers. The contention that there was only one case of Mohsina Alam bearing No. 1103 of 1996 is baseless. Therefore, prima facie, we have not satisfied that there is any fraud in obtaining the said O.B.C. Certificate by the petitioner No. 1. The learned Counsel for the respondent No. 3 also contended that the suit is the proper remedy in this case and as such the suit was filed challenging the validity of Caste Certificate issued to the petitioner No. 1. May be, if the suit is only for the purpose of challenging the validity of the Caste Certificate, the suit may lie, but unfortunately, none of the prayers in the aforesaid suit deal with or seek the relief of declaring the caste validity Certificate to be bad in law. Even in the body of the suit, the pleading is that the petitioner has no right, even to remain as a Councillor and that the petitioner No. 1 has no right to file a nomination form and contest the post of the President of Kamptee Nagar Parishad. In fact, the respondent No. 3 has sought declaration to that effect and the pleadings in the plaint are very clear, that it is a suit pertaining to the election only. Therefore, we hold that in substance the suit basically challenges the election of the petitioner No. 1 as Councillor and also seeks relief that the petitioner No. 1 ought not to contest as a President. We are of the clear view that the above suit is clearly barred in view of section 21 of the said Act and is also prohibited under the provisions of Article 243ZG of the Constitution of India. Therefore, the suit is clearly barred and not maintainable. The learned Joint Civil Judge, Junior Division, Nagpur had no jurisdiction whatsoever to grant purported injunction on 6th February, 1997, which the Court itself had vacated on 7th February, 1997.
11. The learned Counsel for the respondent No. 3 also argued that there are two alternative remedies under section 51(3A) and under section 51(5) of the said Act. We are of the view that both the aforesaid remedies are not efficacious and would not be really alternative remedies, in asmuch as those statutory authorities may not be able to go into the correctness or otherwise as well as the jurisdictional aspect of the Civil Court in the said suit and also there is no provision to grant interim reliefs. Therefore, till the wrong is finally set aside, the wrong doer will be allowed to continue to derive benefit out of the said wrong. In this behalf, we strongly agree with the observations made in the aforesaid judgment and followed the same to the effect that this Court alone ought to set right the jurisdictional errors and not leave it to said alternative forums. Even assuming that there are alternative remedies available the original ad interim relief obtained on 6th February, 1997 was itself in violation of the principles of natural justice "Audi Alteram Partem". In these circumstances we are inclined to exercise our discretion in the matter and entertain this petition instead directing the parties to take recourse to the said alternative remedies, especially when this is a case of clear abuse of judicial process.
12. Considering all facts and circumstances in this case, we are of the clear view that to meet the ends of justice, the petition must be allowed. Therefore, we do hereby quash and set aside the election of the 3rd respondent as a President of Municipal Council, Kamptee held in the meeting of the Municipal Council held on 7th February, 1997 presided over by the 2nd respondent. We also direct the first respondent Collector to convene a fresh meeting of the Councillors of Kamptee to elect the President of the Municipal Council of Kamptee within a period of 10 days from this date.
13. Rule made absolute in terms of the above with no order as to costs.