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Bhaishankar Nanabhai v. Municipal Corporation Of Bombay
Judgment Summary — Jenkins, C.J.
Factual and Procedural Background
This suit arises from the recent Justices' election in the City of Bombay. The plaintiff is a retiring Councillor under section 34 of the City of Bombay Municipal Act, 1888. Defendants 3–18 are described in the plaint as Councillors claiming to act under that election; defendants 19–31 were unsuccessful candidates.
The plaintiff's pleaded case evolved. Although the plaint initially asserted that "there has been no election at all by the Justices" and sought a declaration that there was "no general election," the case as ultimately pressed advanced the narrower contention that no Councillor was elected at the general election.
The specific facts relied on in the plaint (stated briefly) are:
- The Municipal Commissioner initially fixed the Justices' election for 13 February but later changed it to 14 February.
- The number of valid nominations exceeded the number of vacancies so that a poll was required (section 26(2)(j) of the Act).
- The poll was, however, not taken until 21 February.
The plaintiff contended that (1) changing the date was beyond the Commissioner's powers, (2) the poll should have been taken on 20 February (relying on section 27(1)), and (3) because the poll was taken on 21 February, no Councillor was validly elected.
The record indicates that no written statements had been filed, but issues had been framed and read by the Court.
The defendants (notably Nos. 1 and 2) defended on the ground that the election was valid and Councillors were elected; they further contended that the suit could not be maintained because the Court lacked jurisdiction and the plaintiff had no actionable cause of action.
Procedurally, the Chief Judge of the Small Cause Court had already, following a poll, ordered that Sir Pherozeshah Merwanjee Mehta be deemed to have been elected. The High Court was asked to entertain the plaintiff's suit challenging the effect of the election and to grant the relief claimed under section 34(1) of the Municipal Act.
Legal Issues Presented
- Whether, on the facts pleaded (change of election date and poll on 21 February), no Councillor was validly elected such that the plaintiff is entitled to be deemed re‑elected under section 34(1) of the Municipal Act.
- Whether section 33 of the City of Bombay Municipal Act, 1888—by enabling applications to the Chief Judge of the Small Cause Court and declaring the Chief Judge's order "conclusive"—vests exclusive jurisdiction in that tribunal to determine questions as to the validity of elections (and thus ousts the High Court's jurisdiction in respect of such matters).
- Whether the High Court (under section 11 of the Civil Procedure Code) retains jurisdiction to try this civil suit, or whether that jurisdiction is excluded by the Municipal Act.
Arguments of the Parties
Plaintiff's Arguments
- Initially pleaded that there was no election at all by the Justices; later advanced the case that no Councillor was elected at the general election.
- Contended that the Commissioner exceeded his powers by altering the election date from 13 to 14 February and that, on the correct reading of the Act, the poll should have been taken on 20 February (section 27(1)); because the poll occurred on 21 February, no Councillor was elected.
- Argued (as presented by Mr. Setalvad) that the proceedings of 21 February were not part of the election because they were beyond the time permitted by the Act.
- Contended that the Chief Judge of the Small Cause Court had no jurisdiction in the circumstances because the objection was to the election as a whole (not only to the election of an individual candidate).
Defendants' Arguments
- Primary defence (notably by defendants Nos. 1 and 2) was that the election was valid and that Councillors were elected at the general election.
- Further argued that the suit could not be maintained because (a) the High Court had no jurisdiction to try it (section 33 provided the exclusive remedy), and (b) the plaintiff had no cause of action that could support the relief claimed.
- Counter-argument (advanced by Mr. Inverarity) that the word "election" in section 33 could reasonably be read to mean the election as a whole, supported by the subsection's provision permitting questioning on grounds such as improper rejection of nominations.
- It was pointed out that the Chief Judge had already, after the poll, ordered that Sir Pherozeshah Merwanjee Mehta be deemed to have been elected.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Howes v. Turner | Referred to as containing statements of views relevant to the interpretation question before the Court (not cited as a binding authority). | Referred to illustratively; the Court noted it was not treating it as binding but that the views in the case were "not irrelevant" to the question whether section 33 covered an objection to the election as a whole. |
| Line v. Warren | Referred to similarly as containing statements of views relevant to the interpretative issue (also not treated as binding). | Used for illustrative support; the Court did not treat the decision as controlling but mentioned it as containing relevant perspectives. |
| Pritchard v. Mayor, &c., of Bangor | Referred to in relation to the principle that a court lacking jurisdiction should not express an opinion on the merits of a matter it cannot hear. | Cited by way of analogy to justify refraining from expressing views on the merits once the Court concluded it had no jurisdiction to entertain the suit. |
Court's Reasoning and Analysis
The Court's analysis proceeded by close textual reading of section 33 of the City of Bombay Municipal Act, 1888, and by examining the legal consequences of conferring electoral dispute-resolution powers on the Chief Judge of the Small Cause Court.
Key steps in the reasoning were:
- The Court set out section 33, noting that it permits any person on the municipal roll, within eight days after the result of the election has been declared, to apply to the Chief Judge of the Small Cause Court if the qualification of any elected person is disputed or "if the validity of any election is questioned" (including for "any other cause"). The Chief Judge may inquire and (inter alia) confirm or set aside the election; his order is declared to be "conclusive"; and certain consequences follow (e.g., section 33(4) and (5) as to filling vacancies and deeming elections valid when not questioned in accordance with the section).
- The Court addressed the parties' dispute over the meaning of the word "election" in section 33. The plaintiff's position that "election" meant the election of an individual candidate was assumed (for the sake of argument) by the Court to test whether, even on that assumption, the Chief Judge lacked jurisdiction. The Court rejected the plaintiff's contention that the Chief Judge thus had no jurisdiction where the objection was to the election as a whole because: if the applicant can question the election of any candidate before the Chief Judge, the applicant can in practice question the election of every candidate (which amounts to questioning the election as a whole). Further, the section's phrase "for any other cause" was sufficiently wide to encompass objections to the election as a whole.
- The Court observed the factual position: a poll was taken on 21 February; the Chief Judge, following that poll, had ordered that Sir Pherozeshah Mehta be deemed elected. Even if the poll had been taken on the wrong day, it was treated as part of the election and thus constituted a de facto contested election (invoking the concept in section 26(2)(j)). The validity of that de facto contested election was precisely the matter which section 33 entrusts to the Chief Judge.
- The Court applied the general principle that where an Act appoints a special tribunal to determine questions as to rights created by that Act, the tribunal's jurisdiction is, unless otherwise provided, exclusive. The Court explained the rationale: the rights created by the statute must be determined in the manner prescribed by the statute; that is not an ouster of pre‑existing jurisdiction but a creation of a new order under the statute.
- The existence of express statutory language reinforcing conclusiveness (the Chief Judge's order "shall be conclusive") and the deeming provision that elections not questioned according to section 33 are to be treated as valid were held to be sufficient to show that the remedy before the Chief Judge is exclusive for the kinds of questions at issue.
- The Court addressed the Civil Procedure Code point (section 11), acknowledging that the High Court generally has jurisdiction over suits of a civil nature but noting the statutory exception for "suits of which their cognizance is barred by any enactment." The Court concluded that section 33 contains enough to bar the High Court's cognizance of the present dispute because the plaintiff's asserted right depends on a factual determination committed by the Municipal Act to the Chief Judge.
- The Court added policy/ practical observations to reinforce the conclusion: allowing High Court suits would defeat the short statutory time-limits designed to bring electoral disputes to quick resolution and would create uncertainty in the Corporation's constitution; it could also produce conflict with the Chief Judge's conclusive order (which the Act expressly makes prevailing).
- Because the Court found it had no jurisdiction, it declined to express any opinion on the substantive merits of the contested questions, invoking the principle (with reference to Pritchard v. Mayor, &c., of Bangor) that a court without jurisdiction should not pronounce on merits.
Holding and Implications
Holding: The Court held that it had no jurisdiction to entertain the plaintiff's suit and, on that ground, dismissed the suit with costs. The Court's explicit disposition in the record is "Suit dismissed."
Implications and immediate effects:
- The plaintiff's suit is dismissed and the plaintiff must pay costs.
- The statutory remedy before the Chief Judge of the Small Cause Court is the tribunal appointed by the Municipal Act to determine questions about the validity of elections; the Chief Judge's order is conclusive under the Act.
- Because the High Court found it lacked jurisdiction, it expressly refrained from expressing any opinion on the substantive merits of the contested election questions.
- The judgment observes that the language of the Municipal Act is needlessly ambiguous in places and suggests that amendment might be desirable to remove such ambiguities; no substantive change in law was made by the Court beyond its conclusion on jurisdiction.
The Court did not purport to set a new broader precedent beyond its holding that section 33, as enacted, vested conclusive authority in the Chief Judge to determine the kinds of election disputes raised in this case; the decision's effect is confined to the dismissal of the present suit and to the legal conclusion about the exclusivity of the statutory remedy as applied here.
Disposition and Formalities
The suit was dismissed. The report records Solicitors for the plaintiff as Messrs. Bhaishankar, Kanga & Girdharlal; for defendants Nos. 1 and 2 as Messrs. Crawford, Brown & Co. and Messrs. Little & Co.
Final order: Suit dismissed (with costs).
Jenkins, C.J:— The occasion of this suit is the recent Justices’ election in the City of Bombay.
The plaintiff is a retiring Councillor within the meaning of section 34 of the City of Bombay Municipal Act, 1888; the defendants 3 to 18 are, according to the plaint, “made parties as Councillors claiming to act as such under” that election; and defendants 19 to 31 were unsuccessful candidates for election.
Though by his plaint Mr. Bhaishankar submitted that “there has been no election at all by the Justices,” and prays that this Court “may be pleased to declare that there was no general election,” his case as finally developed has been, not that there was no general election, but that no Councillor was elected at the general election.
The facts on which the plaintiff relies are set forth in his plaint, but stated in its simplest form his case is, that defendant No. 2, the Municipal Commissioner, having once fixed the Justices’ election to take place on the 13th of February, subsequently changed it to the 14th; that, as the number of valid nominations exceeded that of the vacancies, an election had to be made from among the persons nominated (section 26(2)(j)); and that the poll was not taken till the 21st of February.
On these facts the plaintiff contends that the change of date was beyond the Commissioner's powers; that the poll should have been taken on the 20th (section 27(1)); and that, as it was not taken till the 21st, no Councillor was elected.
???y arrangement no written statements have been filed, but the wing issues have been raised:— [His Lordship read the issues.]
Though the issues are numerous the substantial defence of ???endaats 1 and 2 to the suit is in effect that the election was defendants and valid; that Councillors were elected at the General Election; and that in any case this suit will not lie, first because this Court has no jurisdiction to try it, and, secondly, because the plaintiff has no cause of action that can support the prayers to the plaint.
The right claimed by the plaintiff is that he may be deemed to be re-elected by virtue of section 34(1) of the Act, and that claim rests on the theory that no Councillor was elected at the Justices’ election.
But this right is the creation of the Municipal Act, and the question is whether the Act has not indicated the tribunal, by which alone the facts on which the right depends can at this stage be determined.
Now, section 33 of the Act is in these terms:—
33. (1) If the qualification of any person declared to be elected for being a Councillor is disputed, or if the validity of any election is questioned, whether by reason of the improper rejection by the Commissioner of a nomination or of the improper reception or refusal of a vote, or for any other cause, any person enrolled in the Municipal election roll may at any time, within eight days after the result of the election has been declared, apply to the Chief Judge of the Small Cause Court.
(2) If the said Chief Judge, after making such inquiry as he deems necessary, finds that the election was a valid election and that the person whose election is objected to is not disqualified, he shall confirm the declared result of the election. If he finds that the election was not a valid election he shall set it aside, so far as concerns the person whose election is objected to. If he finds that there is no objection to the validity of the election proceedings, but that the person whose election is objected to is disqualified for being a Councillor, he shall declare such person's election null and void, and direct that the candidate, if any, in whose favour the next highest number of votes was recorded after the said person, or after all the persons who were returned as elected at the said election, shall be deemed to have been elected.
(3) The said Chief Judge's order shall be conclusive.
(4) If he sets aside an election or if, when he declares a person who has been declared elected disqualified for being a Councillor, there is no other candidate who can be deemed to have been elected, proceedings for filling the vacan vacancies shall be taken under section 34.
(5) Every election not called in question in accordance with the foreg provisions shall be deemed to have been to all intents a good and valid elect
So, if the validity of any election is questioned, application may be made to the Chief Judge of the Small Cause Court. It the Chief Judge finds that the election was not a valid one, he shall set it aside, and his order shall be conclusive.
It is argued for the plaintiff that “election” here means, not the election as a whole, but the election of an individual candidate, and in support of this Mr. Setalvad points to the concluding provision of sub-section (2). Mr. Inverarity in support of the rival view retorts by calling in aid the provision that the validity of any election may be questioned by reason of the improper rejection of a nomination. Neither argument is conclusive, and in my opinion it matters little which view prevails. I will assume (without deciding) that the plaintiff's contention is correct, and that “election” here means the election of an individual candidate. Starting from this, the plaintiff argues that the Chief Judge has no jurisdiction in the circumstances of this case, because the objection is to the election as a whole.
But in this there is an obvious fallacy: if the applicant can question before the Chief Judge the election of any candidate, he can question the election of every candidate.
Further he can do this on the ground that the election as a whole was invalid, for the section, after specifying two permissible grounds of objection, provides that the validity of any election may be questioned “for any other cause,” and these words are wide enough to cover the ground of objection urged in this case. I may here refer to Howes v. Turner and Line v. Warren, not as binding authorities, but as containing a statement of views not irrelevant to the question in hand.
But then, Mr. Setalvad (who has argued this case with considerable skill and resource) says that he does not question the validity of any election, but he maintains that the proceedings the 21st of February were no part of the election, as they were bond the time permitted by the Act.
It is, however, clear that the word “election” in the section is signed to express something wider than a legally valid election, ???d the words used are consistent with the view that an election, which in fact took place under conditions that made it possible that there should be a valid election, can be questioned. This is involved in the fact that the validity of an election can be questioned. Moreover, it would be impossible to assert in the circumstances of this case (even if the plaintiff's contentions be correct), that there is no colour of foundation in fact for the allegation that there was an election.
Now in truth a poll was taken on the 21st of February, and the Chief Judge as a result of that poll has actually ordered that Sir Pherozeshah Merwanjee Mehta shall be deemed to have been elected.
Even if it be assumed that the poll was taken on the wrong day still it was treated as a part of the election, so that there was a de facto contested election (section 26(2)(j)), It is the validity of this de facto contested election that is really questioned.
But under section 33 the Chief Judge has jurisdiction to determine the validity of a contested election, and so he is the tribunal appointed by the Act for that purpose.
But where a special tribunal, out of the ordinary course, is appointed by an Act to determine questions as to rights which are the creation of that Act, then, except so far as otherwise expressly provided or necessarily implied, that tribunal's jurisdiction to determine those questions is exclusive.
It is an essential condition of those rights that they should be determined in the manner prescribed by the Act to which they owe their existence. In such a case there is no ouster of the jurisdiction of the ordinary Courts, for they never had any; there is no change of the old order of things; a new order is brought into being.
Here not only is the Chief Judge appointed the tribunal, but it also is expressly provided that his order shall be conclusive, and that every election not called in question in accordance with the provisions of section 33 shall be deemed to has been to all intents and purposes a good and valid election.
But then it is argued that this is a suit of a civil nature, a section 11 of the Civil Procedure Code provides that the Court shall have jurisdiction to try all suits of a civil nature. But, from this rule are excepted “suits of which their cognizance is barred by any enactment.” The jurisdiction of the Courts can be excluded, not only by express words, but also by implication, and there certainly is enough in section 33 of the Municipal Act for this purpose; for there is no right which the plaintiff can at this stage assert as the subject of this suit, which is not subject to the condition that its essential basis must depend on the decision of the tribunal created for that purpose.
I, therefore, find on the first issue in the negative, and hold that the Court has no jurisdiction to entertain this suit.
Though I come to this conclusion without regard to the inconveniences that the opposite view would involve, I may point out that, while it is provided that an application to the Chief Judge must be within fifteen days after the result of the election has been declared (with the purpose no doubt that all questions should be raised and, if possible, determined, before the day for retirement), there would be no such limitation on the time within which a suit might be brought; and a deplorable uncertainty might thus be created as to the Corporation's constitution and proceedings.
Then again, if the High Court has the jurisdiction suggested by the plaintiff, there might be a conflict between the view of this Court and the order of the Chief Judge, in which the order of the Chief Judge must by the express terms of the Act prevail.
And were we to accept Mr. Setalvad’'s argument in all its branches, this conflict would actually arise in this case; for if we were to declare that no Councillor had been elected—a conclusion absolutely essential to the success of the plaintiff's claim—then we should have to brush aside the Chief Judge's order that Sir Pherozeshah Merwanji Mehta should be deemed to have been elected, though the Act expressly provides that the Chief Judge's order shall be conclusive.
But if we have no jurisdiction to entertain this suit, it would obviously improper for us to express any opinion on the ???rits of the questions discussed before us, though that discus-: fl’ was necessary before we could determine the issue as to jurisdiction: cf. Pritchard v. Mayor, &c., of Bangor.
Still the arguments before us show that the language of the Act is in more than one respect needlessly ambiguous, and, as it is of paramount importance that in matters relating to elections there should be as little obscurity as possible, it may be worthy of consideration whether the Act should not be so amended as to remove the ambiguities which the discussion before us has disclosed.
My finding on the first issue involves the consequence that the suit must be dismissed with costs.
Attorneys for the plaintiff: Messrs. Bhaishankar, Kanga & Girdharlal.
Attorneys for defendants Nos. 1 and 2: Messrs. Crawford, Brown Co. and Messrs. Little & Co.
Suit dismissed.
B.N.L
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