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Satya Pal v. Ivth Additional District And Sessions Judge
Factual and Procedural Background
Respondent No. 2, Jivendra Kumar, was declared elected as Adhyaksha of the Zila Panchayat, Shahjahanpur district, on 22-5-1995. An election petition (Election Petition No. 1 of 1995) was filed by Jaidrath Singh and Vijai Pratap Singh challenging that election. The IVth Additional District and Sessions Judge, Shahjahanpur, finally decided that election petition by judgment and order dated 26-9-1996. At the time of delivering judgment the Judge, on an application by respondent, passed an order staying execution of the judgment for 25 days so that an appeal could be filed in the High Court.
Satya Pal (the petitioner in the present writ petition) had been elected Upadhyaksha on 28-6-1996 and claimed that because the election of the Adhyaksha had been set aside, a vacancy existed and, as Upadhyaksha, he was entitled to hold the office of Adhyaksha until a new Adhyaksha was elected. Aggrieved by the trial Judge's order staying the operation of the judgment, Satya Pal filed the writ petition now under consideration challenging that interim/stay order.
Counsel for the petitioner and learned standing counsel for the State were heard. The court ultimately dismissed the writ petition.
Legal Issues Presented
- Whether a Judge who has given judgment in an election petition under Rule 33 of the Uttar Pradesh Zila Panchayats (Election of Adhyaksha and Upadhyaksha and Settlement of Election Disputes) Rules, 1994, may stay the operation of his own order for the period allowed for filing an appeal under Rule 47 of the Rules.
- Whether, on the facts and statutory scheme applicable to election petitions under the Rules, the trial Judge became functus officio upon pronouncing judgment and therefore lacked power to pass a post-judgment stay of operation of his order.
- Whether the petitioner (an Upadhyaksha who was not a party to the election petition) has locus standi to challenge the interim/stay order passed in the election petition or in any appellate proceeding arising therefrom.
Arguments of the Parties
Petitioner's Arguments
- The learned Judge became functus officio on pronouncing judgment and therefore could not pass the subsequent order staying the operation of his judgment for 25 days.
- There is no inherent or implied power in the Judge to justify the impugned order; the impugned order is without authority of law.
- There is no parallel provision in the Kshetra Samitis and Zila Parishads Adhiniyam, 1961 (or the Rules under consideration) similar to Section 116B of the Representation of the People Act, 1951; therefore the judge's stay order lacked statutory support.
- By the impugned stay the petitioner’s right to hold the office of Adhyaksha (as Upadhyaksha acting in the vacancy) was unlawfully curtailed.
- The petitioner placed reliance on three decisions: Debi Saran v. Sub-Divisional Officer (1988 AWC 1039), Jagdish Prasad v. Sub-Divisional Officer Domariaganj (1989 AWC 151 : 1990 RD 363), and Mahabir Singh v. State of U.P. (1989 AWC 401) in support of the contention that interim orders depriving an elected incumbent of duties should not be permitted where no procedure is prescribed.
Respondent / State's Arguments
- Under the provisions of the governing Act and the Rules, the learned Judge had power to stay the operation of his judgment for a short period; nothing in the Act or the Rules precludes exercise of such power.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Debi Saran v. Sub-Divisional Officer, Kitcha Rudrapur, district Nainital, and Ors., 1988 AWC 1039 | Held that where no procedure is prescribed under the relevant provision (Section 12-C of the U.P. Panchayat Raj Act and Rule 25), the prescribed authority/Sub-Divisional Officer cannot grant interim orders depriving an elected pradhan of duties. | The court considered this precedent distinguishable: Debi Saran dealt with the power of a Sub-Divisional Officer under Section 12-C where no procedure existed, whereas in the present case Rule 38 provides a procedure allowing application of the Civil Procedure Code; therefore the precedent did not control the present case. |
| Jagdish Prasad v. Sub-Divisional Officer Domariaganj, district Basti and Anr., 1989 AWC 151 : 1990 RD 363 | Same legal principle as above regarding limits on interim orders by prescribed authority/Sub-Divisional Officer under Section 12-C in absence of a prescribed procedure. | Found distinguishable for the same reasons as Debi Saran: the statutory/regulatory context here (Rules with Rule 38) differs and permits application of Civil Procedure Code provisions. |
| Mahabir Singh v. State of U.P. (1989 AWC 401) | Also concerned with the power of prescribed authorities in election disputes under Section 12-C and the absence of procedure to support interim orders depriving office-holders of duties. | Distinguished on grounds that the present Rules provide an express procedural reference to the Civil Procedure Code (Rule 38), unlike the situations in Mahabir Singh. |
| Indira Gandhi v. Raj Narain, AIR 1975 SC 1590 | Identified socio-legal considerations relevant to granting or refusing interim relief (e.g., prior practice, special circumstances, balance of convenience, public justice, public interest) used as guidelines for stay pending appeal. | The court applied the guidelines from this Supreme Court decision to assess whether the stay granted by the trial Judge was justified on the facts: balancing technical nature of the setting aside, public interest, and absence of allegations of corruption or disqualification. |
Court's Reasoning and Analysis
The court first considered the authorities relied upon by the petitioner and observed that those cases addressed the power of the prescribed authority or Sub-Divisional Officer under Section 12-C of the U.P. Panchayat Raj Act where no procedure had been prescribed (including under Rule 25). In those cases the courts held it could not be inferred that such authorities had power to grant interim orders that would deprive an elected pradhan of performing duties.
The court then explained why those precedents were distinguishable from the present case: the Rules governing election petitions in this matter (the 1994 Rules) contain Rule 38, which expressly permits application of the Civil Procedure Code (CPC) procedure "except so far as provided by the Act or in these rules" and where such procedure can be made applicable. That procedural reference means a judge hearing an election petition may apply CPC procedures, including provisions for stays and interlocutory relief where applicable.
The court relied on provisions of the CPC:
- Section 94 of the CPC, which empowers the Court, to prevent the ends of justice from being defeated, to pass orders contemplated in clauses A to E (including interlocutory orders); and
- Section 151 of the CPC, which preserves the inherent power of the Court to make orders necessary in the ends of justice or to prevent abuse of process.
The court also considered Rule 44 (referenced by petitioner) and observed there is nothing in Rule 44 that curtails a Judge's ability to postpone the effect of his order after pronouncement; a judge could pronounce that the order will take effect after a limited period.
The court further noted that in the absence of specific contrary provisions, guidance may be drawn from the Representation of the People Act, 1951 (notably Section 116B which permits stay applications to the High Court under certain circumstances). The court observed that the Representation of the People Act has historically been used as a guiding general law in election disputes.
Applying the guidelines from Indira Gandhi v. Raj Narain (balance of convenience, public justice, public interest, prior practice and special circumstances), the court evaluated the facts: the election had been set aside on a technical ground (use of a lottery when equal votes were found rather than deciding on first preference votes); there were no findings of disqualification or corrupt practices. Rule 43, which deals with procedure in case of equality of votes, was noted.
Given the technical character of the defect, the temporary nature of the stay (the impugned order provided 25 days; the court's discussion elsewhere refers to a temporary period of 26 days), and the interest of public justice in avoiding disturbance to the office of the Adhyaksha pending appellate remedy, the court found a prima facie case supporting the trial Judge's interim order. The court also held that the petitioner, who was not a party to the election petition, had doubtful locus standi to challenge the interim order passed in the election petition or an appellate interim order, and thus could not properly question the stay.
Holding and Implications
REJECTED
Holding: The writ petition filed by Satya Pal was rejected. The court found no merit in the challenge to the trial Judge's order staying operation of the judgment for a short period and declined to interfere.
Direct consequences and implications:
- The trial Judge's short-term stay of execution (25 days as per the impugned order; the judgment's reasoning also refers to a temporary period discussed as 26 days) was not set aside by this court.
- The petitioner (an Upadhyaksha who was not party to the election petition) was held to have doubtful locus standi to challenge the interim/stay order passed in the election petition or in appeal; accordingly the petition could not succeed on that basis.
- No broader or novel legal principle was announced beyond application of existing provisions (Rule 38 permitting application of the CPC, Sections 94 and 151 CPC, and guidance from Supreme Court precedent) to the facts; the court treated prior authorities relied on by the petitioner as distinguishable rather than as directly controlling precedent in the present statutory/regulatory framework.
1. Heard learned counsel for petitioner and the learned standing counsel.
2. Short but important question involved in this petition is as to whether the Judge while giving judgment in an election petitioner filed under Rule 33 of the Uttar Pradesh Zile Panchayats (Election of Adhyaksha and Upadhyaksha and Settlement of Election Disputes) Rules, 1994 (hereinafter referred to as the Rules) may stay operation of his own order for the period provided for filing appeal before High Court under Rule 47 of the Rules.
2-A. Facts, in short, necessary to appreciate the controversy are that respondent No. 2 Jivendra Kumar was declared elected as Adhyaksha of the Zila Panchayat of district Shahjahanpur on 22-5-1995. Challeng ing this election. Election Petition No. 1 of 1995 was filed by Jaidrath Singh and Vijai Pratap Singh. Aforesaid Election Petition has been decided finally by learned IVth Additional District and Sessions Judge, Shahjahanpur by his judgment and order dated 26-9-1996, while delivering judgment respondent No. 1, on the application of respondent to stay operation of the order dated 26-9-1996 for one month, passed the following order :-
"Counsel for the applicant-respondent No. 1 wants to file an appeal in the Hon'ble High Court. Provisions of C. P. C. are applicable. The execution of the order and judgment shall remain stayed for 25 days so that the appeal may be filed during this period.
Sd/- Illegible 26-9-1996 IVth A. D. J."
3. Aggrieved by the aforesaid order this petition has been filed by the petitioner Satya Pal who was elected Upadhyaksha on 28-6-1996. His claim is that as the election has been set aside, and there is vacancy in the office of Adhyaksh, petitioner being Upadhyaksha, is entitled to hold the office till an Adhyaksha is elected in accordance with law.
4. Shri A. Kumar, learned counsel for the petitioner, has submitted that as the impugned judgment was pronounced by the learned Judge, he became functus officio and could not pass the impugned order staying the operation of his own order for 25 days. There is nothing like inherent or implied power to justify the impugned order. There is also no parallel provision in Kshetra Samitis and Zila Parishads Adhiniyam, 1961, like Section 116B of the Representation of Peoples Act, 1951 and the order is wholly without authority of law. By the impugned order the right of petitioner to hold office of the Adhyaksha has been illegally curtailed.
5. Learned counsel for petitioner has placed reliance in the follow ing cases :-
1, Debi Saran v. Sub-Divisional Officer, Kitcha Rudrapur, district Nainital and Ors. reported in 1988 AWC 1039.
2 Jagdish Prasad v. Sub-Divisional Officer Domariaganj, district Basti and Anr. reported in 1989 AWC 151 : 1990 RD 363.
3. Mahabir Singh v. State of U. P. and Anr., reported in 1989 AWC 401.
6. Learned standing counsel appearing for the State submitted that under the provisions of the Act and the Rules, the learned Judge had power to stay operation of his judgment for a short period and there is nothing in the Act or the Rules on which basis it may be said that such power could not be exercised.
7. I have considered the submission of learned counsel for petitioner and have also perused to cases relied in support thereof. From perusal of the aforesaid three judgment of this Court, it is clear that the legal position expressed therein was regarding the power of the prescribed authority/sub-divisional officer to grant interim order while hearing an election petition Under Section 12-C of Uttar Pradesh Panchayat Raj Act. In all the judgments it has been said that no procedure has been prescribed either in Section 12-C of U. P. Panchayat Raj Act or under Rule 25 framed thereunder and in absence of any such procedure, it cannot be inferred that the Sub-Divisional Officer/Prescribed Authority hearing the election petition may have the power to grant interim order depriving the pradhan whose election was in question from discharging his duties and functions as elected Pradhan. From the narration of the aforesaid facts, it is clear that the judgments are distinguishable from the facts of the present case. For election petitions filed under the Rules, procedure has been specifically provided under Rule 38 which reads as under :-
"38. Except so far as provided by the Act or in these rules, the procedure provided in the Civil Procedure Code, 1908, in regard to suits, shall in so far as it is not inconsistent with the Act or any provisions of these rules and it can be made applicable, be allowed in the hearing of the election petitions :
provided that-
8. From the provisions contained in rule 38, it is clear that there is a procedure provided for hearing of the election petitions and the Judge hearing the election petition may apply the procedure provided in Civil Procedure Code, 1908 if it can be made applicable. There is also power of review. In the circumstances, it is difficult to accept that the learned Judge after giving his judgment became functus officio and could not pass the impugned order. Section 94 of the Code of Civil Procedure specifically provides that in order to prevent the ends of justice from being defeated, the Court may pass orders contemplated in Clauses A to E mentioned thereunder. Clause E provides that the Court may make such interlocutory orders as may appear to the Court to be just and convenient. It cannot be denied that in the First Schedule of the Code of Civil Procedure under various clauses, provisions have been made for staying the operation of the judgment and decree. They need not be narrated here.
9. Besides, Under Section 94-E, the Court has also the inherent power Under Section 151 of the Code of Civil Procedure which provides that nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary in the ends of justice or to prevent abuse of the process of the Court.
10. Learned counsel for petitioner has not been able to point out any provision in the Act or the Rules which may be said to be inconsistent with the provisions of Sections 94 and 151 of the Code of Civil Procedure. Learned counsel, however, relied on Rule 44 which provides that an order of the Judge under Sub-rule (2) of Rule 40 shall take effect from the date of the order, however, there is nothing in Rule 44 to curtail the power of the Judge to postpone the effect of his order after pronouncement of the same. He could pronounce in the judgment itself that the order will take effect after a limited period.
11. It may not be out of place here to mention that Representation of Peoples Act, 1951, is a sort of general law in this country to generally provide guidance in matter of elections and in deciding the election disputes and in the absence of any specific contrary provision in the Act or the Rules under consideration, the guidance may be taken from the Representation of Peoples Act, 1951. Section 116B(1) reads as under :-
"(1) An application may be made to the High Court for stay of operation of an order made by the High Court Under Section 98 or Section 99 before the expiration of the time allowed for appearing therefrom and the High Court may, on sufficient cause being shown, and on such terms and conditions as it may think fit, stay the operation of the order, bur no application for stay shall be made to the High Court after an appeal had been preferred to the Supreme Court.
(2) where an appeal has been preferred against an order made Under Section 98 or Section 99 the Supreme Court may, on sufficient cause being shown and on such terms and conditions as it may think fit, stay operation of the order appealed from."
12. It may be mentioned here that initially provisions of Section 116B were not part of the Representation of Peoples Act, 1950 or 1951. This section was inserted by Amending Act No. 27 of 1958 after gaining experience.
13. After the 73rd Amendment of the Constitution in 1992, the elections of the Panchayats and election disputes have to be judged from a different angle. Panchayats have now became part and parcel of the democratic functioning of this Country from grass rest level to the national level. The Panchayats at village level, intermediate level and district level have been conferred important duties and functions and there appears no harm if a power in terms of Section 116B is also inferred on the basis of the existing provisions with the Judge hearing election petitions under the Rules. Hon'ble Supreme Court in case of Indira Gandhi v. Raj Narain reported in AIR 1975 SC I590 considered in detail the relevant factors for consideration while granting interim order in such circumstances. Para 13 of the judgment reads as below :-
"What has been the prior practice of this Court in such cases?
What if any, are the special circumstances compiling departure in favour of the petitioner ? What is the balance of convenience ? What does the public justice of the case dictate ? Which may does public interest lie ? These are the sociolegal considerations which are relevant to the grant or refusal of stay and the terms to be imposed on the petitioner in the event of grant. Stay pending appeal has been usually granted but hammed in by conditions............"
14. Now, coming to the facts of the present case and considering the guidelines' provided by Hon'ble Supreme Court, in my opinion, the order is justified. The sale ground for setting aside the election is that respondent No. 2 Jivendra Kumar and another candidate Manvendra Singh secured equal votes. However, the Election Officer committed illegality in adopting lottery system for declaring the result. It has been he'd that when equal votes were found, the decision should have been on the basis of the first preference votes secured by the candidates. Thus, the election has been set aside on the basis of technical defect in counting and not on the basis of any disqualification or on the basis of the charges of corrupt practices. Rule 43 deals with the procedure in case of equality of votes. The aforesaid Rule reads as under :-
"43 (1) If during the trial of an election petition it appears that there is an equality of votes between candidates at the election and that one of them is to be eliminated, then-
(a) any decision, made by the Returning Officer under the provisions of these Rules, shall, in so far as it determines the question between those Candidates, be effective also for the purposes of petition, and
(b) so far as that question is not determined by such a decision, the Judge shall decide between them in accordance with the provisions of the instructions in Schedule II to there rules?."
15. Considering the aforesaid Rules, and without expressing any opinion on the merits of the case, it can be safely said that there was a prima facie case in favour of respondent No. 2 for passing the impugned stay order. The petitioner is Upadhyaksha and by this order no inreparable loss or injury can be said to have been caused to him. It is a tem porary poriod of 26 days. During this period, it shall be in the interest of public justice not to disturb the office of the Adhyaksba of Zila Panchayat and specially in the facts and circumstances of the present case.
16. The order important aspect of the case is that petitioner was not party to the election petition. It is highly doubtful that he shall have the locus standi to challenge the impugned order. Assuming for the time being that the interim order is granted by his Court in appeal filed by respondent No. 2 can petitioner question the interim order? In my opinion, he cannot. The election dispute was confined between the parties to the election petition, petitioner may be entitled to hold the office in absence of the Adhyaksha but on this basis he cannot question the order passed by the Judge who heard the election petition or the order passed in appeal. Thus, he has no locus standi to challenge the order.
17. For the reasons stated above, I do not find any merit in this writ petition and it is accordingly rejected.
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