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Ram Kumar Jain Petitioner v. Ramakanta Goud And Others Opp. Parties
Judgment Summary
Factual and Procedural Background
The writ applicant is Sri Ram Kumar Jain, who had been declared elected as Chairperson of Kesinga N.A.C. Opposite Party No. 1 (the election petitioner) filed Election Petition No. 13 of 2008 before the District Judge/Tribunal, Kalahandi-Nuapada at Bhawanipatna, challenging that election. On receipt of notice from the election Tribunal, the writ applicant filed a petition dated 17.2.2009 seeking that the question of maintainability (jurisdiction) be adjudicated as a preliminary issue on the ground that the Election Petition was not maintainable. The learned District Judge rejected the petitioner's application for a preliminary hearing on jurisdiction by an order dated 29.7.2009. The present writ application challenges that order.
Legal Issues Presented
- Whether an election petition filed before the District Judge/Election Tribunal under the Orissa Municipal Act is a permissible forum to challenge the election of a Chairperson of a municipal body (N.A.C.).
- If such an election petition is not maintainable before the Election Tribunal, what remedy (forum) is available to a person who seeks to challenge the election of a Chairperson of a municipal body?
- What is the effect of Article 243-ZG of the Constitution and the specific provisions of the Orissa Municipal Act (Sections 18, 21 and 57) on the availability of forum and reliefs in challenges to municipal elections?
Arguments of the Parties
Writ Petitioner (Sri Ram Kumar Jain) — Principal Argument
- The election petitioner challenged the writ petitioner's election as Chairperson by filing an election petition before the District Judge/Tribunal; such a challenge to the office of Chairperson is not permissible in law by way of an election petition before the District Judge/Tribunal.
Opposite Party No. 1 (Election Petitioner) — Principal Account
- Opposite Party No. 1 had been elected as Councillor from Ward No. 5 of Kesinga N.A.C. and subsequently contested the internal election for Chairperson (a seat reserved for OBC) on the basis of a caste certificate.
- After losing the Chairperson election, Opposite Party No. 1 filed Election Petition No. 13 of 2008 challenging the Chairperson election before the District Judge/Tribunal. That election petition is the subject-matter of the maintainability challenge.
State / Advocate General (Sri A. Mohanty) — Submissions
- Section 18 of the Orissa Municipal Act and Article 243-ZG indicate that only elections of Councillors to a Municipality may be questioned by election petition before the District Judge/Election Tribunal under Sections 18 and 21 of the Act.
- Section 57 of the Act bars Civil Courts from granting temporary injunctions or interim orders restraining persons from exercising powers or functions of municipal office-bearers on the ground of alleged defective election, and from restraining holding of elections.
- There is, however, no express prohibition in the Municipal Act preventing an aggrieved person from bringing a declaratory or ordinary civil suit to question the election of a Chairperson; thus a purposive reading supports that while the Election Tribunal deals with Councillor elections, challenges to Chairperson elections may be brought before competent Civil Courts (subject to the bar on interim injunctions under Section 57).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Jaspal Singh Arora v. State of M.P., (1998) 9 S.C.C. 594 | The Supreme Court held that where the statute prescribes the mode of challenging an election (by election petition), the matter could not be called in question except by that mode; the bar in Article 243-ZG precludes ordinary court interference in electoral matters covered by the statute. | The court in the present opinion noted that the cited judgment establishes the principle that when a statute provides the forum for a specified type of election challenge, that forum is exclusive. The court distinguished the present case on its facts because Sections 18 and 21 of the Orissa Municipal Act cover elections of Councillors but do not cover elections of the Chairperson; hence the exclusive-election-petition principle in the cited case does not make election petitions to challenge a Chairperson's election maintainable under Section 18. |
Court's Reasoning and Analysis
The court analyzed the interplay between the constitutional provision (Article 243-ZG) and the statutory scheme in the Orissa Municipal Act (notably Sections 18, 21 and 57).
Step-by-step:
- The court observed that Article 243-ZG places a constitutional limitation by barring ordinary court interference in electoral matters where the legislature has provided a statutory forum and procedure for contesting elections.
- Sections 18 and 21 of the Orissa Municipal Act were read as prescribing the Tribunal (District Judge) as the forum for questioning the election of a Councillor. Those provisions therefore cover challenges to Councillor elections before the Election Tribunal.
- Sections 18 and 21 do not, however, provide for election petitions challenging the election of a Chairperson; the statutory text and scheme therefore left a different situation for office-bearers such as the Chairperson.
- Section 57 expressly bars Civil Courts from granting temporary injunctions or interim orders restraining a person from exercising the functions of a municipal office-holder or from restraining elections; but Section 57 does not, on its face, preclude a civil court from entertaining an ordinary suit (for declaratory relief) questioning the validity of the election of an office-bearer.
- Applying these provisions purposively, and with regard to the constitutional embargo, the court concluded that while the Election Tribunal is the exclusive forum for challenges to Councillor elections, no comparable statutory provision confers jurisdiction on the Election Tribunal to entertain an election petition challenging the election of a Chairperson; accordingly, an election petition under Section 18 was not the correct mode for challenging a Chairperson's election in this case.
- The court emphasized the principle that no person should be left without a remedy: consequently, the statutory scheme must be interpreted to permit an aggrieved party to seek appropriate relief (by way of civil suit) against the election of a Chairperson, even though the court cannot grant interim injunctive relief under Section 57.
On those grounds the court held that the Election Petition No. 13 of 2008 filed under Section 18 was not maintainable and beyond the jurisdiction of the Election Tribunal.
Holding and Implications
Core Ruling:
The court set aside the order dated 29.7.2009 passed by the learned District Judge, Kalahandi-Nuapada and held that Election Petition No. 13 of 2008 is not maintainable and is beyond the jurisdiction of the Election Tribunal insofar as it seeks to challenge the writ petitioner's election as Chairperson of Kesinga N.A.C.
Implications and immediate consequences:
- The Election Petition before the District Judge/Tribunal was declared not maintainable; the writ petition was allowed to that extent.
- The court expressly left open the remedy for Opposite Party No. 1: if so advised, Opposite Party No. 1 may file an appropriate declaratory suit before a competent Civil Court to challenge the election of the Chairperson.
- The court directed that, if such a civil suit is filed, the Civil Court of competent jurisdiction should deal with the matter expeditiously and take steps to dispose of it within six months from the date of filing, in accordance with law and without being influenced by observations in this judgment.
- The statutory bar in Section 57 restricting Civil Courts from granting temporary injunctions or interim orders restraining office-bearers from exercising their functions remains operative; accordingly, while a declaratory suit may be maintainable, interim relief of the type barred by Section 57 cannot be granted by the Civil Court.
The summary above is limited to the matters expressly stated in the provided opinion and does not add information beyond that text.
I. Mahanty, J.
In the present writ application, the petitioner Sri Ram Kumar Jain has sought to challenge an order dated 29.7.2009 passed by the learned District Judge, Kalahandi-Nuapada at Bhawanipatna in Election Petition No. 13 of 2008, rejecting the petitioner's application for preliminary hearing on the point of jurisdiction.
2. The case of the petitioner is that he was elected as Chairperson to Kesinga NAC and the present election petitioner has sought to challenge the same by filing an election petition No. 13 of 2008 before the learned District Judge/Tribunal Kalahandi-Nuapada at Bhawanipatna. On receiving notice from the election Tribunal, the present petitioner filed a petition on 17.2.2009 praying for adjudicating the issue of maintainability as a preliminary issue on the plea that the election petition was not maintainable in law.
3. Learned counsel for the petitioner submitted that the election petition challenging the election of ‘Chairperson’ of a Municipal body by way of filing of an election petition before the District Judge/Tribunal is not permissible in law.
4. Sri A.K Nanda, learned counsel for the Opposite Party No. 1 (Election Petitioner) submitted that the writ petitioner had contested for ‘Councillor’ from a general category seat and had been duly elected as Councilor to the Kesinga N.A.C After the petitioner succeeded in his election as Councillor from a general seat, thereafter he sought to contest the election for “Chairperson” of the said NAC, which is reserved for “OBC candidate” on the basis of a caste certificate submitted by him, claiming to be an OBC candidate. It is further averred in the writ petition that the petitioner has duly elected as ‘Chairperson’ of the NAC and has been declared as such by Opposite Party No. 2-Election Officer. The petitioner asserts that Opposite Party No. 1 (Election Petitioner) who has been elected as counselor from Word No. 5 of Kesinga NAC had contested for the post of ‘Chairperson’ but on loosing the election, filed an election petition before the learned District Judge/Tribunal, which is the subject matter of challenge on the ground of maintainability.
5. In course of hearing of the present writ application, since an important question of law arose for consideration, request was made to the learned Advocate General to appear in the matter in order to assist the Court and in particular, to ascertain as to whether an election petition before the District Judge/Tribunal, challenge to an election of Chairperson of the N.A.C was at all maintainable or not and further, if such election petition was held to be not maintainable in law, then, what remedy was available to a person who intends to question or challenge the election of a Chairperson of the Municipal Body.
6. Sri A. Mohanty, learned Advocate General appearing on behalf of the State submitted that on a plain reading of Section 18 of the Orissa Municipal Act (in short the ‘Act’) as well as Article 243-ZG of the Constitution of India, only those election petitions seeking to challenge the election of a Councilor to a Municipality could be brought before the District Judge/Election Tribunal under Sections 18 and 21 of the Act. For the purpose of convenience, the relevant Article and Sections of the Municipal Act, 1950 are quoted hereunder:
“Article 243 ZG.- Bar to interference by courts in electoral matters.- 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 under article 243ZF 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.”
“18. Power to question election by petition- (1) The election of any person as a Councillor may be questioned petition on the ground.
(a) that such person committed, during or in respect of the election proceedings, a corrupt practice as defined in Section 28; or
(b) that such person was declared to be elected by reason of the improper rejection or admission of one or more votes, or for any other reason was not duly elected by a majority of lawful vote; or
(c) that such person though enrolled as an elector was disqualified for election under the provisions of Sections 15, 16 and 29.
(2) The election of any person as a Councillor shall not be questioned-
(a) on the ground that the name of any person qualified to vote has been omitted from or the name of any person not qualified to vote has been inserted in the electoral roll;
(b) on the ground that an non-compliance with this Act or any rule or of any mistake in the forms required thereby or of any error, irregularity or informality on the part of the office or officers charged with carrying out the provisions of this Act or any rules, unless such non-compliance mistake, error, irregularity or informality has materially affected the result of the election.”
“21. Tribunal - (1) An election petition shall be heard by the District Judge within whose jurisdiction the Municipality area is situated.
(2) Such District Judge (hereinafter referred to as “Tribunal”) shall be deemed to exercise jurisdiction as persona designate and not acting in capacity of a Judge of a Civil Court.”
Learned Advocate General submitted that in view of the aforesaid constitutional provision, as well as the provisions made by the Legislative Assembly by enacting the Act, an election petition seeking to challenge the election of a Chairperson to a municipal body before the District Judge/Tribunal may not be permissible in law. Yet, in course of hearing, Sri Mohanty drew the Court's attention to Section 57 of the Municipal Act which is quoted hereunder :
“57. Civil Court not to grant temporary injunctions in certain cases - No Civil Court shall, in the course of any suit, grant any temporary injunction or make any interim order -
(a) restraining any person from exercising the powers of performing the functions or duties of a Member, Chairperson, Vice-Chairperson officer or servant of a Municipality or of a Committee or Sub-Committee of Municipality on the ground that such person has not been duly elected appointed as such member, Chairperson, Vice-Chairperson officer or servant; or
(b) restraining any person or persons or any such Municipality or Committee or Sub-Committee of a Municipality from holding any election, or from holding any election in any particular manner.”
In the light and scope of Section 57 of the Act as quoted hereinabove and in view of the constitutional limitation, imposed by Article 243 ZG as well as Section 18 of the Act, Sri Mohanty learned Advocate General suggested that, in the present case, only a challenge the election of a ‘Councillor’ to Municipal body, is permissible by way of filing of an election petition under Section 18 read with Section 21 of the Act before the Election Tribunal. But, if a person is aggrieved by any other election, such as an election by the councillors for a ‘Chairperson’ of the council, the same though not permissible before the Election Tribunal, yet, in terms of the Section 57 of the Act, there appears to be no bar to the Civil Court from entertaining such challenge. In other words,
Sri Mohanty, the learned Advocate General submitted that, in so far as challenge to the election of ‘councillors’ of municipal bodies, is concerned, the forum prescribed in the Act, is the District Judge/Election Tribunal. But in so far as election to the office of “Chairperson” of the Municipality is concerned, although Section 57 of the Act prescribes that no Civil Court shall, in the course of any suit, grant any “temporary injunction” or make any interim order restraining any person from exercising the powers of performing the functions or duties of a Member, Chair person on the ground that such person has not been duly elected, yet, there is no embargo in the Orissa Municipal Act which prohibits the aggrieved party from questioning the election of a Chairperson by way of filing a declaratory suit before the appropriate Civil Court. Sri Mohanty, further submits that if a purposive interpretation is given to Sections 18 and 57 of the Act, it would be clear that while the election of a Councillor may be challenged before the District Judge/Tribunal, the election of a Chairperson of a Municipality may be challenged before the competent civil Court, even though such Civil Court is statutorily barred from passing any temporary injunction, since the office bearers of such public bodies discharge public duties, therefore, while the election of a Chairperson, is permissible before the competent Civil Court, even though such civil court shall be bound by the statutory bar under Section 57 of the Act and may not grant any temporary injunction or any interim order restraining the elected person from exercising his powers or performing the functioning of the duties under the statute.
7. Mr. Nanda, learned counsel for Opposite Party No. 1 refers to the judgment of the Hon'ble Supreme Court in the case of Jaspal Singh Arora v. State of M.P, (1998) 9 Supreme Court Cases 594. In the said judgment, the Hon'ble Supreme Court while considering the provisions of the M.P Municipal Act came to conclude that the mode of challenging the election by an election petition had been provided under the said Act, covering such election and, therefore, such election could not be called in question except by an election petition as provided under that Act. Accordingly, Their Lordships concluded that the bar to interference by courts in electoral matters contained in Article 243-ZG of the Constitution was apparently overlooked by the High Court in allowing the writ petition.
8. The fact situation that arises for consideration in the present case is distinctly different while Sections 18 and 21 of the Act does provide the forum for challenge of an election of a ‘Councillor’ to a Municipal Body, these provisions do not cover a challenge to the election of a ‘Chairperson’ of such Municipal Body, and therefore, the same is covered by Section 57 of the Act. Therefore, for challenge to the election of ‘Chairperson’, an aggrieved party may move the Civil Court. Since both Sections 18 and 57 of the Act have been provided for by the State Legislature in the Municipal Act itself, the constitutional embargo imposed by Article 243-ZG, has been duly complied by the Legislature.
9. On consideration of the submissions made as noted hereinabove, we are of the clear view that it is well settled proposition of law that no person can be left remedy-less. Therefore, while the State Legislature by enacting Sections 18 and 21 of the Orissa Municipal Act, 1950 as provided for the Forum to challenge of the election of a Councilor i.e District Judge/Election Tribunal, yet, though no specific forum has been provided for under the Act, challenge to the election of a ‘Chairperson’ may take place under Section 57 of the Act by initiating civil suits, questioning the election of office bearer of a Municipality including that of a Chairperson, even while the selfsame statute i.e the Municipal Act restricts the jurisdiction of such Civil Court from passing temporary injunction or interim orders restraining such elected persons from exercising the powers or performing functions or duties as Chairperson or Officer of such Municipality.
10. In the light of what has been noted hereinabove, while giving a purposive interpretation to the provisions of the Act vis-à-vis the constitutional embargo provided under Article 243-ZG, we are of the considered view that the Election Petition filed by the Opposite Party No. 1 seeking to challenge the writ petitioner's election as ‘Chairperson’ to Kesinga N.A.C, by way of filing the election petition under Section 18 of the Act, is not maintainable and beyond the jurisdiction of the Election Tribunal. Accordingly, we set aside the order of the learned Dist. Judge, Kalahandi-Nuapada at Bhawanipatna dated 29.7.2009 and hold that Election Petition No. 13 of 2008 pending before the District Judge, Kalahandi Nuapada at Bhawanipatna is not maintainable and beyond its jurisdiction.
Before parting, we may observe that it shall be open for the Opposite Party No. 1 (Election Petitioner), if so advised, to file an appropriate declaratory suit before the competent Civil Court having jurisdiction over the matter and if the Opposite Party files such a suit before a Civil Court of competent jurisdiction, such court shall do well to deal with the matter expeditiously and take steps to dispose of the matter within a period of six months from the date of filing of such civil suit in accordance with law and without being influenced in any manner by any of the observations made herein.
The writ petition is allowed to the extent indicated hereinabove.
B.P Das, J.
I agree.
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