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Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Patel
  • Deshmukh, JJ.
Acts
  • s. 16 of the Bombay Village Panchayats Act, 1958,
  • s. 15(5)(a), s. 28 and s. 44(2). Section 15(5)(a)
  • Berar Municipalities Act, ss. 20A, 12(3)
  • s. 10. Section 44(2)
  • s. 14. Section 16(2)
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Patel
  • Deshmukh, JJ.
Acts
  • s. 16 of the Bombay Village Panchayats Act, 1958,
  • s. 15(5)(a), s. 28 and s. 44(2). Section 15(5)(a)
  • Berar Municipalities Act, ss. 20A, 12(3)
  • s. 10. Section 44(2)
  • s. 14. Section 16(2)
See more information ...
Smart Summary

Case Summary — Opinion by Patel, J.

Factual and Procedural Background

The dispute arose from the Village Panchayat election at Madshingi (taluq Jalgaon) held on May 25, 1966, with results declared on May 26, 1966. Petitioners Nos. 1 to 4 and respondents Nos. 1 to 5 were returned as elected members. A meeting to elect the Sarpanch was originally fixed for July 5, 1966, and later adjourned to July 18, 1966 (and ultimately held on July 19, 1966).

Prior to the Sarpanch election, respondents Nos. 6 and 7 filed election petitions on June 10, 1966, challenging petitioners Nos. 1 and 2. Respondent No. 1 applied under s.16 of the Bombay Village Panchayats Act, 1958, to the Collector seeking disqualification of petitioners Nos. 1 and 2 on the grounds of age; the Collector rejected that application on July 8, 1966. Respondent No. 1 also unsuccessfully applied to the Collector to postpone the Sarpanch election.

On July 14, 1966, respondents Nos. 6 and 7 applied to the Civil Judge (before whom the election petition was pending) for an interim injunction restraining petitioners Nos. 1 and 2 from voting at the Sarpanch election. The Civil Judge granted an interim injunction on July 15, 1966; however, the injunction was not served until about one hour before the meeting and the petitioners were effectively prevented from voting. At the meeting held on July 19, 1966, the presiding officer did not permit petitioners Nos. 1 and 2 to vote.

The petitioners challenged the Civil Judge's interim injunction and sought consequential relief to quash the election of respondent No. 1 as Sarpanch and respondent No. 3 as Upasarpanch. The High Court (Patel, J.) heard the matter, reviewed statutory provisions and precedents, and reached a final decision allowing the petition, setting aside the injunction, quashing the election of respondents Nos. 1 and 3, and awarding costs against respondents Nos. 1, 3, 6 and 7.

Legal Issues Presented

  1. Whether the Civil Judge acting under s.15 of the Bombay Village Panchayats Act, 1958, has the power to grant an interim injunction restraining elected members from voting at a Panchayat meeting during the pendency of an election petition.
  2. Whether applicants for an interim injunction under Order XXX, Rule 2 (or equivalent procedure) must demonstrate a prima facie legal right and threatened legal injury, and whether such a right existed here.
  3. Whether a challenge to the qualification of elected members on the ground of age is maintainable in an election petition under s.15 in light of the conclusive nature of the entry in the voters' list (s.13(3)).
  4. Whether the availability of alternative remedies (e.g., proceedings before the Collector or tribunal) renders equitable relief by the High Court inappropriate in the factual circumstances.

Arguments of the Parties

Petitioners' Arguments (as presented through Mr. Manohar)

  • The Civil Judge acting under s.15 is a persona designata (not a Court) and therefore lacks power to issue an interim injunction restraining elected members from voting at the election of the Sarpanch. (The Court, however, for purposes of the case assumed s.15(2) confers the powers of a Civil Court.)
  • The ground that petitioners Nos. 1 and 2 were underage and therefore disqualified could not be maintained in an election petition under s.15 because the entry in the voters' list is conclusive under s.13(3).
  • The interim injunction, which was granted late and served only shortly before the meeting, unjustly prevented the petitioners from voting and caused substantial harm to the petitioners and to the voters who elected them.

Respondents' / Applicants' Arguments (as presented through Mr. Kulkarni and by respondents Nos. 6 and 7)

  • Reliance on Bhimappa Balappa v. Ramchandra Gopala that an interim injunction ought not to be issued unless a prima facie case is found; implied submission that a prima facie case justified restraining the petitioners from voting in this matter.
  • An argument that because there are alternative remedies available under the Act, the High Court should not interfere by granting the relief sought by the petitioners (i.e., the petitioners should pursue statutory or other remedies provided by the Act).
  • Respondents Nos. 6 and 7 sought relief under s.15 to set aside the election of certain members (respondent No. 6 applied regarding ward 3 and respondent No. 7 regarding ward 4), and they sought an interim injunction to prevent petitioners from voting until the election petitions were determined.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Subhadrabai v. Ratnaprabha, 1964 Civil Revision Application No. 25 of 1961 (V.S. Desai and Wagle, JJ., Sept. 30, 1964) (Unreported) That an entry in the voters' list is conclusive (analogous provision in C.P. & Berar Municipalities Act) and therefore age-based disqualification is not maintainable under the relevant election provision. The Court relied on this decision to support the conclusion that the allegation of disqualification of petitioners Nos. 1 and 2 on age grounds was not open to respondents in proceedings under s.15 of the Panchayats Act.
Dhondba v. Civil Judge, Hinganghat, 1966 Special Civil Applications Nos. 418 & 419 of 1966 (Patel and Deshmukh, JJ., July 5, 1966) (Unreported) Support for the proposition (similar statutory context) that challenges based on voters' list/entries are conclusive and limit grounds available in election petitions. The Court cited this decision as further authority corroborating that age-based disqualification could not be raised under s.15 in the present statutory scheme.
Bhimappa Balappa v. Ramchandra Gopala, 1965 Special Civil Application No. 126 of 1965 (Chainani, C.J. and Gokhale, J., Feb. 15, 1965) (Unreported; [1965] Mah. L.J. Note 79) That an interim injunction ought not to be issued unless a prima facie case is found; emphasises the need for a prima facie showing before granting interlocutory equitable relief. The Court observed that this precedent does not hold or decide that an injunction can be granted to prevent a person from voting at election of office-bearers merely because his election is challenged; the opinion treated the case as authority only for the need for a prima facie case and declined to import any broader, unstated rule from it.

Court's Reasoning and Analysis

The Court proceeded step-by-step, adhering to stated statutory provisions and rules governing injunctions:

  1. The Court accepted, for purposes of deciding the matter, the assumption that the Civil Judge acting under s.15(2) of the Bombay Village Panchayats Act has the powers of a Civil Court (i.e., could be treated as having powers to grant injunctions), even though it was noted elsewhere that the Civil Judge acting under s.15 may be a persona designata.
  2. The Court examined the proper grounds for interlocutory injunctions, referring to Order XXX, Rules 1 and 2 (the Court noted Rule 2 applies only if its conditions are satisfied), and stressed that injunctive relief requires proof of a legal injury — specifically, the applicant must show he has a legal right being threatened by the opponent's conduct.
  3. Applying this principle, the Court analyzed what rights respondents Nos. 6 and 7 possessed under the Act. It observed that neither applicant (respondent No. 6 was a voter; respondent No. 7 was a candidate) possessed the statutory right to act as a Panchayat member or to vote at its meetings pending determination of the election petition. Until the election of the contested members was set aside and someone else declared elected, the incumbents had statutory rights to attend and vote.
  4. The Court relied on specific statutory provisions to describe the statutory scheme: s.15(5)(a) (power to set aside election on corrupt practice after enquiry), s.28 (term of office deemed to commence on date of first meeting called by the Collector), s.44(2) (proceedings of the Panchayat are valid notwithstanding subsequent discovery that a person who sat or voted was not entitled to do so), s.16 (cases of elected persons who were disqualified or incur disqualification under s.14), and s.13(3) (conclusive nature of entry in voters' list). These provisions were read together to conclude that an elected member continues to act in office until his election is set aside by a competent tribunal and that his statutory rights cannot be interfered with during pendency of an election petition.
  5. The Court held that absent a prima facie right in the applicant that is being infringed, there can be no legal injury to justify an injunction. Here, respondents seeking to prevent voting could not show such a right because the petitioners had statutory rights to attend and vote until legally displaced.
  6. The Court considered the precedent Bhimappa Balappa as limited to the principle that an interim injunction requires a prima facie case and declined to read into that precedent an unstated rule authorising injunctions to prevent voting merely because an election is challenged.
  7. The Court addressed the contention that alternative remedies existed and might make High Court interference inappropriate. The Court found that in the factual matrix — where respondent No. 1 made repeated attempts to remain in office and obtained an injunction that prevented petitioners from voting, thereby enabling respondent No. 1 to continue in office — the alternative remedy was not adequate because it was too slow and would permit the contested office-holder to remain in office in the meantime. Accordingly, the adequacy-of-alternative-remedy argument failed on the facts.
  8. On merits, the Court concluded respondents Nos. 6 and 7 had no case to justify interim relief; specifically, the age-based disqualification allegation was not maintainable under s.15 because of the conclusive effect of entry in the voters' list (citing Subhadrabai and Dhondba).

Holding and Implications

HOLDING: The petition was allowed. The High Court set aside the interim injunction granted by the Civil Judge and quashed the election of respondents Nos. 1 and 3 (i.e., the election of the Sarpanch and Upasarpanch as challenged). The Court granted the specific prayers (a), (b), (c) and (d) made in the petition and awarded costs to the petitioners against respondents Nos. 1, 3, 6 and 7.

Implications:

  • Direct effect: The interim injunction preventing the petitioners from voting was set aside; the elections of respondent No.1 (Sarpanch) and respondent No.3 (Upasarpanch) were quashed; the petitioners recovered costs from specified respondents.
  • On legal principle: The Court reaffirmed that interlocutory equitable relief (an interim injunction preventing voting) cannot be granted unless the applicant demonstrates a prima facie legal right and threatened legal injury — and that, in the statutory scheme of the Panchayats Act, an elected member retains statutory rights to attend and vote until his election is set aside by competent authority. The Court relied on existing decisions to the extent they are on point but did not purport to lay down a novel broader rule beyond applying established principles to the facts.
  • No broader or novel precedent was purportedly created beyond the application of established statutory interpretation and interlocutory relief principles to these facts.

Disposition: Petition allowed.

Show full summary ...

    Jagannath Pundlik Date v. Sukhdeo Onkar Wankhede

    Patel, J.:— This petition demonstrates the manner in which some of the Panchayats are working under the Panchayats Act.

    2. The dispute between the parties arises out of an election to the Village Panchayat of Madshingi, taluq Jalgaon, which took place on May 25, 1966. The results of the election were declared on the next day. At this election petitioners Nos. 1 to 4 and respondents Nos. 1 to 5 were elected. The meeting for the election of the Sarpanch of this Panchayat was fixed originally for July 5, 1966, and then adjourned to July 18, 1966. In the meantime, respondents Nos. 6 and 7 filed two election petitions against petitioners Nos. 1 and 2 on June 10, 1966. Respondent No. 1 was the Sarpanch elected to the prior Panchayat. He then made an application under s. 16 of the Bombay Village Panchayats Act, 1958, to the Collector for disqualifying petitioners Nos. 1 and 2 on the ground that they were disqualified for being elected as members of the Panchayat because petitioner No. 1 was below the age of 25 and petitioner No. 2 was below the age of 21 years. The Collector rejected this application on July 8, 1966. Prior to this, before the first date for election of the Sarpanch, respondent No. 1 had made an application to the Collector for postponing the election on the ground that an election petition was pending. The Collector rejected this application. Thereafter, respondents Nos. 6 and 7 presented an application for an interim injunction to the Civil Judge before whom the election petition was pending, praying that petitioners Nos. 1 and 2 be restrained by an injunction from voting at the ensuing meeting for election of the Sarpanch, adjourned to July 18, 1966. The application was made on July 14, 1966 and the interim injunction was granted by the learned Judge on July 15, 1966. Surprisingly enough, this injunction was not served right until one hour before the meeting and the petitioners were effectively prevented from voting at the election. The petitioners seek to challenge the order of the learned Civil Judge and further consequential order to quash the election of respondent No. 1 as Sarpanch and of respondent No. 3 as Upasarpanch of the Village Panchayat. It appears that the meeting which was scheduled to take place on July 18, 1966, had to be adjourned to July 19, 1966. Though the injunction related to the meeting of July 18, petitioners Nos. 1 and 2 were not allowed to vote at the meeting which actually took place on July 19, 1966, by the presiding officer. Mr. Manohar contends that the Civil Judge acting under the provisions of s. 15 of the said Act acts as a persona designata a and therefore he has no power to issue an interim injunction restraining any of the elected members from voting at the election of the Sarpanch. It has been held that the Civil Judge acting under s. 15 is not a Court but merely a persona designata. It is not necessary, however, to decide whether or not he has got all the powers of a Civil Court while holding an enquiry and whether the powers of granting interim injunction are powers which are exercisable during the enquiry by him. For the purposes of this matter we will assume that the Civil Judge has by reason of s. 15(2) all the powers of a Civil Court.

    3. A Civil Court can grant injunction only under O. XXX, rr. 1 and 2. Evidently r. 1 has no application. Rule 2 applies only if conditions thereof are satisfied. Rule 2 so far as relevant reads:

    “In nay suit (1) for restraining the defendant from committing a breach of contract or (2) other injury of any kind… apply to the Court for a temporary injunction to restrain file defendant from committing the breach of contract or injury complained of.”

    4. We may assume that though election petition is not a suit, it may even be treated as suit. The first part cannot apply for there is no question of a contract. In order to bring the case within the second part the applicant must show some legal injury of some kind.

    5. In order to prove legal injury the applicant must establish that he has a legal right to do something and the opponent prevents him from the exercise of such right. Unless a right is alleged and/or shown to exist prima facie, there can be no question of any breach of that right. The question then is whether the applicant has a right to do that what he wants to prevent the defendant from doing.

    6. Respondent No. 6 applied under s. 15 of the Act to have the election of the petitioners set aside of ward 3 from where petitioners Nos. 2 and 3 were returned, and respondent No. 7 applied to set aside the election of petitioner No. 1 and respondent No. 5 from ward 4. Respondent No. 6 was a voter while respondent No. 7 was a candidate at the election. Under the Act what is the right that each of them possesses? Neither one nor the other is entitled to act as member of the Panchayat or vote at its meeting. In fact, until election of petitioners Nos. 1 and 5 is set aside, and he is declared elected he would have no right in respect of which injury is threatened to him. If he has no right there can be no injury to him at all. There is no explanation as how the legitimate exercise of his right by petitioners and respondent. No. 5 would cause the applicants any injury.

    7. Apart from this, it is impossible under the provisions of the above Act to countenance the contention that elected representatives of the people can be prevented from exercising their right of voting at a meeting of the Panchayat during the pendency of an election petition under s. 15 of the Act. In this connection we must refer to s. 15(5)(a), s. 28 and s. 44(2). Section 15(5)(a) requires the Court to set aside the election of a candidate if he has committed corrupt practice after the enquiry. When there is any other dispute, the Judge has to make scrutiny of the votes and then declare the candidate with the largest vote duly elected. Section 28 prescribes the terms of the office of the members elected to the Panchayat. It provides that the term shall be deemed to commence on the date of the first meeting of the Panchayat which shall be held on a day to be fixed by the Collector within four weeks of the date on which names of elected members are published under s. 10. Section 44(2) provides that proceeding of the Panchayat shall be valid notwithstanding it is discovered subsequently that some person who was not entitled to do so, sat or voted or otherwise took part in the proceedings.

    8. The scheme of the Panchayats Act as of such similar Acts is that the person who is elected to the office continues to act in the office until his election is set aside by a tribunal entitled to do so. Section 16 supports the above conclusion. It provides for cases where a person who is elected but who was disqualified or who incurs disqualification under s. 14. Section 16(2) provides that an elected member shall not be disqualified from voting unless the Collector decides the dispute. Under the Act a person who is declared elected has statutory rights to attend the meetings of the Panchayat and vote at its meetings. The Court cannot in any manner touch his statutory rights until his election is set aside or someone else is declared elected in his place. The reason for this is obvious. When an elected member exercises his right of voting, he does not exercise it for himself, but as representative of the voters. Legitimate exercise of his right as a member by him cannot be regarded as any matter affecting respondent No. 7. In England it seems no injunction so far has ever been granted preventing an elected member from exercising his rights during the pendency of an election petition against him.

    9. Mr. Manohar is right when he contends that the ground that petitioners Nos. 1 and 2 had not completed 21 years of age and therefore were not qualified either to vote or to be elected as members cannot be taken in an election petition under s. 15, inasmuch as the entry in the list of voters is made conclusive by s. 13, sub-s. (3) of the Act. In this contention he is supported by the decision of a Bench of this Court in Subhadrabai v. Ratnaprabha . 1964 Civil Revision Application No. 25 of 1961, decided by V.S Desai and Wagle, JJ., on September 30, 1964 Unrep.. in a case which arose under the C.P and Berar Municipalities Act, ss. 20A, 12(3) and 15 of which are similarly worded as the sections in the present case. To the same effect is the judgment by us in Dhondba v. Civil Judge, Hinganghat . 1966 Special Civil Applications Nos. 418 and 419 of 1966 decided by Patel and Deshmukh, JJ., on July 5, 1966 Unrep... It is clear, therefore, that the allegation that the two petitioners were disqualified because of their age was not open to be made for setting aside the election of petitioners Nos. 1 and 2 under s. 15. Thus on merits also respondents Nos. 6 and 7 had no case.

    10. Mr. Kulkarni very strongly relied upon Bhimappa Balappa v. Ramchandra Gopala . 1965 Special Civil Application No. 126 of 1965, decided by Chainani, C.J and Gokhale, J., on February 15, 1965 Unrep. [1965] Mah. L.J Note 79., where a Bench of this Court observed that interim injunction ought not to be issued unless a prima facie case is found. Mr. Kulkarni wants us to import into this decision a further decision that the Court ruled that under the Act injunction can be granted preventing a person from voting at the election of the office-bearers merely because his election is challenged if a prima facie case was made out. No such point was mooted before the Court and none was decided. It may be that the Court in that case did not think it necessary to decide this aspect of the matter as the case may have appeared to be a very clear one. It is well recognised that the case is merely all authority for what it decides and not for what it has not decided.

    11. An argument of desperation was made by Mr. Kulkarni that as under the Act there is an alternative remedy to the petitioners, this Court ought not to interfere. It must be noticed that respondent No. 1 was only wanting to continue in office as long as he could and realising that has party may not be in majority, made his best attempts to prevent the two petitioners from voting at the election of the office-bearers. He failed before the Collector on the ground of disqualification; he failed before the Collector in obtaining injunction against election to the office of Sarpanch, and ultimately therefore, through respondents Nos. 6 and 7 he obtained the injunction. On the other hand, the harm caused to the petitioners and to the voters who elected them is immense, because they were not allowed to vote and respondent No. 1 has been able to continue in the saddle by election in a truncated body. The remedy that is provided is far too long and until the result of that proceeding is known respondent No. 1 would be enabled to continue in office where he has no right to be. We cannot, therefore, on the facts of this case hold that the remedy which is available to the petitioners as an alternative remedy is adequate. This contention also must fail. In the result, we set aside the order of injunction made by the learned Judge and quash the election of respondents Nos. 1 and 3, i.e we grant prayers (a), (b), (c) and (d) made in the petition. The petition is allowed. The petitioners will get their costs from respondents Nos. 1, 3, 6 and 7.

    12. Petition allowed.

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    Comments

    Jagannath Pundlik Date v. Sukhdeo Onkar Wankhede
    (Aug 10, 1966)