Ajmer Singh vs Additional Ditrict Judge, Sangrur and Others

D.V. Sehgal, J.—The election to the offices of Sarpanch and Panches of Gram Panchayat, Makorar Sahib, was held on 24-9-1983. Ajmer Singh Petitioner and Jit Singh Respondent No. 3, were the two candidates for the office of Sarpanch. Respondent No. 3 was declared elected. The Petitioner who was defeated at the polls preferred an election petition on 11-10-1983 before the Executive Magistrate, Sunam, who was the Prescribed Authority, with a prayer that the election of Respondent No. 3 should be set aside and instead he should be declared elected. He levelled varied allegations of irregularities and illegalities which, according to him, were committed in the process of polling and counting of the votes It is not necessary to refer to all the allegations at this stage. The petition was contested by Respondent No 3 who denied the Petitioner''s assertions During the pendency of proceedings in the election petition, the Petitioner moved an application dated 13-10-1983 before the Prescribed Authority with a prayer for recounting of the votes. He alleged in the application that the votes had been wrongly counted by the Returning Officer. While the total votes, according to the counting in the election for the office of Sarpanch, were found to be 1128, the votes actually issued and found on counting for the offices of Panches were 1098 only According to him, the differences of these 30 votes showed prima facie that the counting was not proper. Besides this, he made allegations that he and his representative objected to the manner of counting but such objections were rejected by the Returning Officer. The Prescribed Authority, Respondent No. 2, vide order dated 2-1-1984 allowed his application and directed recounting of votes. Respondent No. 3 being aggrieved against this order Annexure P. 1, filed C.W.P No 151 of 1984 in this Court which was, however, dismissed in limine by a Division Bench vide order dated 9-1 1984 Annexure P. 2.

As a result of recount, the Prescribed Authority found that Respondent No. 3 had secured 563 votes instead of 571 votes and the Petitioner had secured 565 votes instead of 557 votes The election of Respondent No 3 was consequently set aside and the Petitioner was declared elected by a margin of 2 votes by an order dated 18-1-1984, (Annexure P. 3) passed by Respondent No. 2. Respondent No 3 preferred an appeal u/s 13-V of the Punjab Gram Panchayat Act, 1952 (hereinafter called ''the Act''). The grounds of appeal are contained in Annexure P. 4 This appeal was allowed by the learned Additional District Judge, Sangrur, Respondent No. 1, vide judgment dated 25-1-198; Annexure P. 5. He, inter-alia, held as under: -

As required by the Supreme Court authorities reported in Ram Sewak Yadav Vs. Hussain Kamil Kidwai and Others, Shri Jitendra Bahadur Singh Vs. Shri Kirshna Behari and Others, and Bhabhi Vs. Sheo Govind and Others, the Prescribed Authority nowhere recorded his prima facie satisfaction that the inspection of the ballot papers and their recount was necessary for deciding the election dispute and doing complete justice between the parties. This Court in view of the combined and cumulative effect of what has been discussed and held hereinbefore is unable to uphold the order dated 18-1-1984 which is hereby set aside. Since the election petition filed by Ajmer Singh Respondent No. 1 has not been decided on merits on the allegations in his petition, the case is remitted to the Prescribed Authority (Executive Magistrate), Sunam, for deciding the election petition on merits after affording reasonable opportunity to the parties to lead such evidence as they would like to adduce .

The Petitioner has challenged the judgment Annexure P. 5 of the learned Additional District Judge, Sangrur, through the present writ petition.

Mr Ashok Bhan, learned Senior Advocate, appearing for the Petitioner, has contended that the judgment Annexure P. 5 adjudicates upon the order dated 2-1-1-1984 Annexure P. 1 for recount of the votes passed by Respondent No 2 and holds that the said order was not valid in law. According to him, the order Annexure P 1 was challenged in this Court through CWP No. 151 of 1984, which was dismissed. He asserts that in view of the order Annexure P. 2 of this Court dismissing the writ petition of Respondent No. 3, the learned Additional District Judge as the Appellate Authority had no jurisdiction to go into the legality or otherwise of the order dated 2-1-1984 Annexure P. 1 of the Prescribed Authority. According to him, the following consequences flow from the order Annexure P. 2 of the Division Bench of this Court dismissing the writ petition of Respondent No 3:-

(i) The order dated 9 1 1984 Annexure P. 2 of the Division Bench of this Court dismissing the writ petition of Respondent No. 3 challenging the order of recount dated 2-1-1984 Annexure P. 1 operates as res judicata Therefore, it could not be made subject matter of appeal before Respondent No. 1.

(ii) The order of recount dated 2-1-1984 Annexure P.1. has merged in the order of the Division Bench of this Court dated 9-1-1984 Annexure P. 2. Respondent No. 1. at the Appellate Authority under the statute, therefore, could not sit on the judgment of this Court and under the grab of adjudicating upon the order of the Prescribed Authority Annexure P.1. could not set at naught the order of the Division Bench of this Court Annexure P.(sic)

On going through the petition, the different orders as also the written statement. I find that on merits the only matter which shall require to be considered is whether Respondent No. 2 could order recount of votes as he did vide his order dated 2.1.1984 Annexure P. 1 in view of a catena of judgments of the Supreme Court, some of which have been relied upon by the Appellate Authority Respondent No. 1, I, therefore, deem it fit to decide whether the Appellate Authority could go into the legality or otherwise of the order of recount dated 2.1.1984 Annexure P. 1. keeping in view the law points raised by the learned Counsel for the Petitioner.

First of all I shall deal with point (i) stated above. The order of Motion Bench Annexure P. 2 was no doubt passed in limine but it hat to be ascertained whether this order would operate at res judicata. In Daryao and Ors. v. State of U.P (1962) I.S.C.R. 574, it was held at under:- If the petition is dismissed in limine and an order pronounced in that behalf whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar; if the order says that the dismissal was for the reason that the Petitioner was guilty of laches or that he had an alternative remedy, it would not be a bar-.

It was further observed as under:-

If the petition it dismissed in limine without passing a speaking order then such dismissal cannot be treated at creating a bar of res Judicata. It is true that, prima facie, dismissal in limine even without passing a speaking order that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all but in the absence of a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that makes it difficult and unsafe to held that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata against a similar petition filed under Article 12.

Following the principle enunciated in Daryao''s cose (supra) it was held by the Supreme Court in Hoshnak Singh v. Union of India AIR 1979 S.C. 1328, as under:-

It is, therefore, incontrovertible that where a petition under Article 226 is dismissed in limine without a speaking order such a dismissal would not constitute a bar of res judicata to a subsequent petition on the same cause of action, more so, when on the facts in this case it appears that the petition was dismissed presumably because the Petitioner had an alternative remedy by way of a revision petition u/s 33 of the 1954 Act which remedy he availed of and after a failure to get the relief he moved the High Court again for the relief.

It would also be of benefit to refer to the following observations of the Supreme Court in The Workmen of Cochin Port Trust Vs. Board of Trustees of The Cochin Port Trust and Another, :-

It is not safe to extend the principles of res Judicata to such an extent so as to found it on mere guess work To illustrate our view point, we may take an example. Suppose a writ petition is filed in a High Court for grant of a writ of certiorari to challenge some order or decision on several grounds. It the writ petition is dismissed after contest by a speaking order obviously it mill operate as res judicata in any proceeding, such as, of suit Article 32 or Article 136 directed from the order or decision If the writ petition is dismissed by a speaking order either at the threshold or after contest, say, only on the ground of laches or the availability of an alternate remedy, then another remedy open in law either by way of suit or any other proceeding obviously will not be barred on the principle of res judicata. Of course, a second writ petition on the same cause of action either filed in the same High Court or in another will not be maintainable because the dismissal of one petition will operate as a bar in the entertainment of another writ petition. Similarly, even if one writ petition is dismissed in limine by a non-speaking one word order ''dismissed'' another writ petition would not be maintainable because even the one word order, as we have indicated above, must necessarily be taken to have decided impliedly that the case is not a fit one for exercise of the writ jurisdiction of the High Court. Another writ petition from the same order or decision will not lie But the position is substantially different when a writ petition is dismissed either at the threshold or after contest without expressing any opinion on the merits of the matter, then no merit can be deemed to have been necessarily and impliedly decided and any other remedy of suit or other proceeding will not be barred on the principle of res judicata.

The position of law as emerging from the voluminous authorities on the law point, is summed up by a Full Bench of this Court in Teja Singh v. The Union Territory of Chandigarh (1982) 84 P.L.R. 160, thus-

Thus it is quite evident that the principles of res judicata are attracted only when a writ petition is dismissed after contest by passing a speaking order as in that event the decision would operate as res Judicata in any other proceeding such as suit for a petition under Article 32 etc. But where a petition is dismissed only on the ground of laches or the availability of an alternate remedy or on a ground analogous thereto, then any ether remedy by way of suit or any other proceeding will not be barred on principles of res Judicata Further where a petition is dismissed on the ground of alternate remedy or on a ground analogous thereto, a second petition en the same cause of action under Article 226 would be barred. But again, it may be observed that where a petition is dismissed on the ground that alternate remedy under Act has not been availed of then after availing of the statutory remedy, a second petition would be maintainable on the principle that the same has been filed on a cause of action which has arisen after the decision of the appropriate authority under the Act. Further, a second petition on similar facts and in respect of the same cause by the same party would not be maintainable even if his earlier petition has been disposed of by one word ''dismissed.

Now, I advert to the nature and tenor of the order dated 9.1.1984 Annexure P. 2. passed by the Motion Division Bench of this Court. It is in the following terms:-

Cites R. Narayanan Vs. S. Semmalai and Others, , and AIR 1975 S.C. 215. After hearing the learned Counsel, we do not find sufficient reasons to interfere with the order of the Tribunal Consequently, the writ petition is dismissed in limine.

On the basis of the test laid down in the catena of authorities cited above it has to be seen whether it is a speaking order passed after contest and if that is so it will certainly operate as res Judicata Mr. Kuldip Singh, learned Senior Advocate, appearing for Respondent No. 3, contends that it is by now well established that a speaking order means an order which indicates the process of reasoning by which the ultimate decision is arrived at. There can be no dispute with this contention but while ascertaining whether an order passed by the High Court in limine is a speaking order passed after contest what is to be seen is whether the writ petition has been dismissed on its merits or there it scope for entertaining guess work that the petition was dismissed on any other ground such as laches or availability of alternative remedy. The order set out above leaves no scope for doubt and makes it quite clear that the writ petition was dismissed on merits The order was passed after arguments were addressed before the Division Bench, Supreme Court judgments were cited before it and then the Bench applying its mind to the facts and contentions set out in the writ petition did not find sufficient reasons to interfere with the impugned order. Thus, in my view it is certainly a speaking order.

Mr. Kuldip Singh then contended that the second test that the order should have been passed after contest can by no logic be said to have been fulfilled when we look at the order Annexure P.2. I am unable to agree with this cotention also. ''After contest'' in my view, here would mean ''after arguments''. ''Contest'' here cannot be said to mean representation of both the contesting parties and their rival arguments, because if this meaning is assigned to the words ''after contest'' then dismissal of a writ petition in limine can never operate as res judicata unless a notice of motion has been issued therein and the presence and representation of the opposite party has been secured. An order passed in limine is not always detailed and well reasoned If this meaning is assigned to the words'' after contest'' right on the first date of motion hearing, it would never operate as res judicata. This interpretation in my view runs counter to the principle which can be deduced from the chain of authorities cited above. I, therefore, agree with the contention of the learned Counsel for the Petitioner that the order of the Division Bench dated 9.1.1984 Annexure P.2 does operate as res judicata and the legality of the order dated 2.1.1984 could not be reopened before the Appellate Authority Respondent No. 1.

Now coming to the second contention of the learned Counsel for the Petitioner, Mr. Kuldip Singh does not dispute the doctrine of merger According to him, no doubt the order dated 2.1.1984 Annexure P.l passed by Respondent No 2 does merge in the order of the Division Bench dated 9.1.1984 Annexure P. 2, but since it was an inter-locutory order and no appeal was maintainable against it, while hearing appeal against the final order allowing the election petition the Appellate Authority can go into its legality. To test the rival contentions of the learned Counsel, it is necessary here to refer to the case law. A Division Bench of this Court dealt with this aspect of law in Amarjit Singh and Others Vs. Financial Commissioner, Taxation, Punjab, Chandigarh and Others, and it was held as under:-

The doctrine of merges is well recognised in law. Much less to say, the doctrine has a direct bearing on the res Judicata as the objects to be achieved by the application of this doctrine are two fold:

(a) to avoid multiplicity of proceedings, and

(b) to achieve the finality in decision.

The rule of res judicata has always been applied to a decision of High Court in writ petition. The basis on which the rule of res judicata is founded, is on a principle of public policy. It is in the interest of public that finality is attached to a binding decision pronounced by a Court of competent jurisdiction and it is also in the public interest that individuals should not be vexed twice over for the same litigation. The doctrine of merger comes in when the decision of the inferior Court merges with the decision of the Superier Court and thereafter if anybody wants to challenge that decision, he is to direct his efforts against the decision of the Superior Court. This question very often arises whenever a challenge is made to the decision arrived at and a question of limitation arises or a question of jurisdiction crops up. It may as well be that a dispute arises as to what were the questions of fact and law decided by the Court.For all these considerations one has to look into the decision of the superior Court and it is that decision which prevails over the decision of the inferior Court. It is settled that the High Court was a superior Court as compared to the Financial Commissioner. The learned Judge who decided Rajwant Singh and Others Vs. The Financial Commissioner and Others, emphasised on the hierarchy of Courts and pointed out to the extraordinary jurisdiction of the High Court. In our opinion the doctrine of merger cannot be made to depend on any conception, so long it is held that the superior Court was compent to go into the very same question which arose before the inferior Court. It could be in ordinary revision or appeal, or it could be a constitutional remedy or it could be a writ petition filed in the High Court It is never the less correct that the High Court had also exercised the statu tory jurisdiction under Article 226 Therefore, the decision of the High Court being the decision of Superior Court, if it deals with the very same question of law and fact, which had culminated in the decision of the Financial Commissioner, then in our opinion, the decision of the Financial Commissioner positively merged in the decision of the High Court.

Had the matter rested here and the above proposition of law laid down by the Division Bench alone would have been the matter of consideration, I would have had to deal at some length with the contention of Mr. Kuldip Singh, but the Division Bench in Amarjit Singh''s case (supra) over-ruled the judgment of a learned Single Judge of this Court in Rajwant Singh''s case (supra) For the sake of clarity, I would set out summarily the facts of Rajwant Singh''s case (supra). Allotment in favour of a displaced person was cancelled by the Chief Settlement Commissioner Against the order of the Chief Settlement Commissioner, a writ petition was filed in this Court and the same was dismissed in limine thereafter, the aggrieved party filed a petition u/s 33 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954 before the Central Government. The argument raised was that the order of the Chief Settlement Commissioner merged with the order of the High Court and as such the Central Government could not review that order u/s 33 of the said Act It was also argued that the decision in the writ petition operated as res judicata between the parties. While repelling this argument, the learned Single Judge observed that the principle of merger of order is only applicable where a statutory remedy by way of appeal or revision is provided in the statute and in a hierarchy of Courts or Tribunals. According to the learned Judge, the remedy under Articles 226 and 227 of the Constitution is not an ordinary remedy but an extraordinary remedy and in exercise of that jurisdiction the High Court can either grant the petition as a whole, or in part or dismiss the writ petition. It does not affirm the order of the Tribunal impugned in the writ petition when the petition is dismissed. The principle of merger of order of the inferior Court with the order of the superior Court is wholly inapplicable to an order under Articles 226 and 227 of the Constitution.

The Division Bench in Amarjit Singh''s case (supra) overruled the judgment in Rajwant Singh''s case (supra) and categorically held as under:-

We are, therefore, in respectful disagreement with the decision of this Court in Rajwant Singh''s case (supra) inasmuch as the learned Judge refused to apply the doctrine of merger to a decision by the High Court in writ jurisdiction Sin Marly, we are of the firm opinion that unless the in limine decision of the High Court is set at naught in one of the modes delineated in Bansi and Another Vs. Additional Director, Consolidation of Holdings and Others, the said decision stands and controls the field between the parties The decision, even if in limine, cannot be set aside by an inferior Court even though it may exercise the statutory remedy by way of review.

I. therefore, find that availability of a statutory remedy by way of appeal, revision or review against an order challenged in writ petition is wholly immaterial for the doctrine of merger. Irrespective of the fact that a statutory remedy is available, if a person aggrieved from an order chooses to challenge the same by invoicing writ jurisdiction of the High Court the order passed on the writ petition is the final order. The impugned order merges in the order of the High Court.

Mr. Kuldip Singh, however, to buttres his argumeut strongly placed reliance on The The United Provinces Electric Supply Co. Ltd., Allahabad Vs. Their Workmen, , wherein it was observed as under:-

That order in fact did not finally terminate any proceedings at all. The proceedings were terminated only by the award against which the present appeal has been brought by special leave. We are unable to see how the decision in the aforesaid case can afford any assistance to the Respondents before us Indeed the case which is more apposite is Satyadhyan Ghosal and Others Vs. Sm. Deorajin Debi and Another, . There an order of remand had been made by the High Court while exercising powers u/s 115 of Code of Civil Procedure. It was observed after referring to the various decisions of the Privy Council, that the order of remand was interlocutory and did not purport to dispose of the case. A party is not bound to appeal against every interlocutory order which is a step in the procedure that leads up to a final decision or award.

On the basis of the above observations, he once again asserted that the order of the Division Bench dated 9.1 1984 dismissing the writ petition was at best to uphold an interlocutory order ultimately merged in the final order dated 18.1.1984 Annexure P. 3. of the Prescribed Authority Respondent No. 2, the doctrine of merger would not apply. I have not been able to persuade myself to agree to this contention. In fact, the judgment of the Supreme Court in an earlier case Management of Northern Railway Co-operative Society Ltd. Vs. Industrial Tribunal, Rajasthan, Jaipur and Another, which has been distinguished in The United Provinces Electric Supply Co. ease (supra) is a clear answer to this contention. In Management of the Northern Railway Co-operative Credit Society''s case (supra) a reference had been made by the State Government to the Industrial Tribunal on the Railway Workers'' Union having raised an industrial dispute against the Management of the Northern Railway Co-operative Credit Society Ltd The said Society filed a writ petition on the ground that the dispute having been raised by the Railway Workers'' Union and not by the Society''s own employees the reference to the Tribunal was not competent. The High Court dismissed the petition Thereafter, the Tribunal heard the matter and gave its decision in favour of the workman concerned. The society appealed to the Supreme Court by special leave. It was held that the order of the High Court was not interlocutory but was the final order in regard to the proceedings under Article 226 The appropriate remedy for the Appellant in that case was to appeal against the High Court''s order and that having not been done his plea relating to the competency of the reference was barred by res judicata as the same bad been raised before the High Court and had been rejected. Taking the cue from the aforesaid Supreme Court judgment, 1 venture to observe that no doubt the order of the Prescribed Authority dated 2 1 1984 Annexure P. 1 was interlocutory in nature, but the order of the Division Bench of this Court dated 9.1.1934 Annexure P.2 by which the order Annexure P.l of the Prescribed Authority was upheld was the final order in so far as it concerned the termination of proceedings under Article 226 of the Constitution. The logical conclusion is that the remedy open to Respondent No. 3 was to challenge the order Annexure P-2 of the Division Bench of this Court by special leave to the Supreme Court. By not having done so, he allowed the order Annexure P. 2. passed by the Division Bench of this Court to become final.

In view of the above discussion, 1 am impelled to conclude that the order dated 9 1.1984 of the Division Bench of this Court Annexure P 2 in the writ petition not only operated as res judicata but was also the final order as the order dated 2.1.1984 Annexure P.l of the Prescribed Authority ordering recount of votes merged in the order of this Court The learned Additional District Judge as the Appellate Authority u/s 13-V of the Punjab Gram Panchayat Act, 1952 had no jurisdiction to sit on judgment or the order of this Court Annexure P 2 nor could he reopen the question of legality or otherwise of the order of the Prescribed Authority dated 2.1.1984 Annexure P 1. Consequently, I allow this writ petition, quash the order of the learned Appellate Authority dated 25 1 1985 Annexure P.5. Since the petition is being allowed purely on legal points, there shall be no order as to costs.